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Open and declared conflict between the armed forces of two or more states or nations.
Article I, Section 8, Clause 11 of the U.S. Constitution gives Congress alone the power to declare war. In addition, Congress is given sole authority by the Constitution "To raise and support armies" and "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions." The U.S. Constitution also spells out the military powers of the president of the United States: he or she serves as commander in chief of the U.S. armed forces. Throughout U.S. history, however, there have been conflicts between the two branches (legislative and executive) over who has the greatest military power. And, often, regardless of Constitutional right, the Executive Branch holds forth.
Executive Military Power
Such presidential power is illustrated by President Abraham Lincoln's actions at the beginning of the Civil War. In the ten weeks between the fall of Fort Sumter and the convening of Congress in July 1861, Lincoln made war preparations based on his authority as commander in chief. He initiated the drafting of men for military service, approved of a Southern naval blockade, and suspended the writ of Habeas Corpus. Congress later ratified most of Lincoln's actions.
In the twentieth century several U.S. presidents have committed U.S. armed forces without a declaration of war. In 1903 and 1904, President Theodore Roosevelt took military action in Panama and the Dominican Republic without consulting Congress. President woodrow wilson sent troops into Mexico without congressional approval. But, the most serious infractions began in 1951, when President Harry S. Truman ordered troops to Korea as part of a United Nations "police action." This was followed, in the 1960s and 1970s, by the Vietnam War, which Presidents lyndon b. johnson and richard m. nixon prosecuted without a congressional declaration.
In response, Congress passed the War Powers Resolution of 1973 (50 U.S.C.A. § 1541 et seq.), which restricts the president's power to mobilize the military during undeclared war. In a national emergency, the act allows the president to dispatch troops without consulting Congress. The president must, however, notify Congress within 48 hours, and the duration of time that troops can be committed in a foreign location is limited. The act also provides a Veto mechanism that allows Congress to force a recall of troops at any time.
The act has not prevented subsequent presidents from taking military action. For example, in 1990, without seeking approval from Congress, President george h. w. bush sent troops to Saudi Arabia in response to the Iraqi invasion of Kuwait. In 2002, with war with Iraq imminent, President george w. bush proposed a resolution that would allow him to declare war at a time of his own choosing, without having to first consult with Congress. Congress approved the authorization in 2002, and President Bush declared war on Iraq in March 2003.
Status and Rights of Citizens
During a time of war, the U.S. government may properly compel the services of all its citizens and subjects. It can recall nationals who are abroad and subject them to penalty if they do not obey. The government can take steps it deems necessary for national security against enemy Aliens. Enemy aliens residing in the United States at the outbreak of a declared war or who enter the United States during a war are properly subject to arrest, detention, internment, or deportation.
The general rule is that, during a declared war, all intercourse, correspondence, and traffic between U.S. citizens and subjects of enemy states that might be advantageous or provide comfort to the enemy are prohibited. For example, it is illegal to transmit money across enemy lines. In addition, a U.S. citizen cannot lawfully make a contract with a citizen of an enemy state while war exists, and any such contract is, therefore, void. The laws of war proscribe all trading with the enemy and all other commercial relations while a state of war exists.
Requisition of Private Property
In times of war, Congress and the president, as commander in chief, have the power to requisition private property necessary for the war effort.
A military commander can seize or requisition a citizen's property for public use or to prevent it from falling into enemy hands. The commander can do this, however, only in situations involving imminent and impending danger or necessity. The services and production of a business organization, such as a shipping company, can properly be requisitioned.
An individual whose private property is requisitioned is entitled to fair compensation. However, the compensation does not have to be paid in advance or at the time the property is seized. When compensation is made, the owner is entitled to receive the reasonable value of the property. The market value of the requisitioned property is generally used as the measure of fair compensation.
Martial rule exists when military authorities exercise varying degrees of control over civilians in territory where, due to war or public commotion, the civil government is not able to maintain order and enforce the law.
War Powers of the U.S. Government
The power of the federal government to conduct war extends to every matter and activity that has an effect on its conduct and progress. The war powers embrace every phase of national defense, including the mobilization and use of all resources of the nation and the protection of war materials. Most of these powers have not been used since World War II, because the United States did not fight under a declaration of war while engaged in conflicts in Korea, Vietnam, and the Persian Gulf.
Congress has the authority to stimulate the production of the war equipment and supplies by all proper methods, including the payment of subsidies or the imposition of limits on profits.
Congress can control the food supply during war to ensure that military and civilian needs are met. Other materials may be rationed as well, including gasoline. Congress also can regulate and control prices as a wartime emergency measure to prevent inflation. Price controls are designated to stabilize economic conditions, prevent speculative and abnormal increases in prices, increase production, and ensure a sufficient supply of goods at fair prices. The federal government can also impose rent control on housing.
Civil liberties can also be curtailed during wartime. The government can censor news that affects national security, such as reports of troop movements. It is within the power of Congress to enact Sedition laws that prohibit political speech that disrupts the war effort or gives Aid and Comfort to the enemy.
During the early months of U.S. involvement in World War II, President franklin d. roosevelt ordered the removal of people of Japanese ancestry from the West Coast. At the time the action was justified on national security grounds, because military commanders believed that California was vulnerable to Japanese spies and saboteurs. The U.S. Supreme Court, in korematsu v. united states, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1944), upheld the removal. Thousands of Japanese Americans lost their property and businesses and were "relocated" to concentration camps for the duration of the war.
Armed Services; Arms Control and Disarmament; Japanese American Evacuation Cases; Korean War; Martial Law; Military Government; Military Law; Military Occupation; Militia; Milligan, Ex parte; Rules of War; Tonkin Gulf Resolution; World War I.
WAR. A contention by force; or the art of paralysing the forces of an enemy.
2. It is either public or private. It is not intended here to speak of the latter.
3. Public war is either civil or national. Civil war is that which is waged between two parties, citizens or members of the same state or nation. National war is a contest between two or more independent nations) carried on by authority of their respective governments.
4. War is not only an act, but a state or condition, for nations are said to be at war not only when their armies are engaged, so as to be in the very act of contention, but also when, they have any matter of controversy or dispute subsisting between them which they are determined to decide by the use of force, and have declared publicly, or by their acts, their determination so to decide it.
5. National wars are said to be offensive or defensive. War is offensive on the part of that government which commits the first act of violence; it is defensive on the part of that government which receives such act; but it is very difficult to say what is the first act of violence. If a nation sees itself menaced with an attack, its first act of violence to prevent such attack, will be considered as defensive.
6. To legalize a war it must be declared by that branch of the government entrusted by the constitution with this power. Bro. tit., Denizen, pl. 20. And it seems it need not be declared by both the belligerent powers. Rob. Rep. 232. By the constitution of the United States, art. 1, s. 7, congress are invested with power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; and they have also the power to raise and support armies, and to provide and maintain a navy." See 8 Cranch, R. 110, 154; 1 Mason, R. 79, 81; 4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf. Inst. B. 1, c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1; Lee on Capt. c. 1; Chit. Law of Nat. 28; Marten's Law of Nat. B. 8, c. 2; Phil. Ev. Index, h., t. Dane's Ab. Index, h. i.; Com. Dig. h.t. Bac. Ab. Prerogative, D 4; Merl. Repert. mot Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, Sec. 1; Mann. Com. B. 3, c. 1.