Mastering the Bar Exam: Constitutional Law - The Constitution in Times of Crisis (Session Eight)

War Powers and National Security.

Constitutional Framework

The Constitution divides war powers between Congress and the President, creating a system of shared authority designed to prevent unilateral military action. Congress has the power to declare war, raise and support armies, provide and maintain a navy, and regulate the military. The President, as commander-in-chief, directs the military and conducts foreign affairs.

Historical Context and Legal Debates.

Throughout American history, these powers have led to significant legal and political debates, particularly regarding the scope of the President's authority to engage in military actions without explicit Congressional authorization. Conflicts like the Korean War, the Vietnam War, and more recent engagements in Afghanistan and Iraq have tested these constitutional boundaries.

Key Cases and Doctrines.

The Prize Cases (1863): The Supreme Court held that the President has the authority to act in the absence of Congressional declaration of war if the United States is already under attack or facing an imminent threat.

Youngstown Sheet & Tube Co. v. Sawyer (1952): This case limited presidential power by ruling that President Truman could not seize steel mills during the Korean War without Congressional authorization.

War Powers Resolution (1973): Passed in the aftermath of the Vietnam War, this act seeks to limit the President's ability to commit U.S. forces to armed conflict without Congress's consent. Its effectiveness and constitutionality, however, have been subjects of ongoing debate.

Emergency Powers and Civil Liberties.

Balancing Act.

In times of crisis, such as war, natural disasters, or public health emergencies, the government often invokes emergency powers to address the situation. While these powers are necessary for effective response, they sometimes conflict with individual rights and civil liberties, requiring a delicate balance.

Historical Examples.

Civil War: President Abraham Lincoln's suspension of habeas corpus during the Civil War was a controversial exercise of emergency powers, later examined and circumscribed by the Supreme Court.

World War II: The internment of Japanese Americans, authorized by Executive Order 9066, stands as a stark example of civil liberties being curtailed in the name of national security.

Post-9/11: The USA PATRIOT Act and other measures enacted in the aftermath of the September 11 attacks raised significant concerns regarding surveillance, due process, and privacy.

Judicial Oversight.

The role of the judiciary in reviewing and sometimes curtailing the use of emergency powers is a critical aspect of maintaining the constitutional balance. Cases like Hamdi v. Rumsfeld (2004) and Boumediene v. Bush (2008) reflect the courts' ongoing engagement with these issues, emphasizing the need for due process and legal safeguards even in times of national emergency.

---

Send in a voice message: https://podcasters.spotify.com/pod/show/law-school/message
Support this podcast: https://podcasters.spotify.com/pod/show/law-school/support