Commerce Clause and Declare War Clause – Annika Maduraperuma

Video

Written Component

The Articles of Confederation, the precursor to the Constitution created a weak federal government, giving too much autonomy and power to the states, upsetting the power balances. The Constitution sought to fix this, and in Article 1, the legislative branch is created, balancing and regulating state and federal power. Section 8, often called “the enumerated powers of congress” is thought of as a direct response to the problems of the Articles of Confederation.

The Commerce clause, Clause 3 of Article 1, Section 8, is commonly understood to display the power Congress has to regulate commerce and trade internally, externally, and with Native American tribes. This clause stops states from interfering or obstructing interstate commerce. The reach of the commerce clause has become increasingly expansive over time. In Gibbons v Ogden (1824), Chief Justice Marshall expanded the definition of commerce to intercourse, the dealings and discussions between groups or individuals at large. As time went on, other Supreme Court cases slowly defined that anything that ends in profit, and requires interstate movement in that process, can be federally regulated. After United States v. Darby (1941), Congress’ regulation was redefined to encompass any intrastate activities that affect interstate commerce. In Katzenbach v McClung (1964), the Court’s unanimous decision enforced the Civil Rights Act of 1964 and set the precedent that segregation interfered with interstate commerce because of its effect on transportation and business. This stopped McClung from refusing to serve African Americans and gave Congress the power to stop segregation.

The Declare War Clause, Clause 11 of Article 1, Section 8, grants Congress the sole power to declare war and commence hostilities. At the time of creation, it was meant to be a check on the President’s power. But, in the modern day, it is commonly misunderstood that war is declared by the President, as the powers of the Declare War clause and the President’s position as commander in chief of the armed forces blur. After the Gulf of Tonkin incident, President Johnson asked for and received a resolution from Congress allowing him to ensure international and Southeast Asian peace and US safety and prevent further aggression through any necessary means. This resolution served as grounds for the rest of the military action President Johnson and President Nixon oversaw during the Vietnam war, though a formal declaration of war was never decreed (1). Tension specifically rose between Congress and the President when Nixon secretly bombed Cambodia without congressional consent or oversight in 1970 (2). This led to the War Powers Resolution of 1973, which forced the President to report any use of armed forces to Congress within 48 hours, after which if Congress failed to authorize use of hostilities in the next 60 days, the President must terminate any action. While meant to limit executive power, it implicitly gives them a period of guaranteed action, continuing the battle over military checks and balances.

1. National Archives, “Tonkin Gulf Resolution (1964),” National Archives, accessed June 1, 2023, https://www.archives.gov/milestone-documents/tonkin-gulf-resolution.

2. Richard Nixon Presidential Library, “War Powers Resolution of 1973,” Richard Nixon Presidential Library, accessed June 1, 2023, https://www.nixonlibrary.gov/news/war-powers-resolution-1973#:~:text=Congress%20passed%20the%20War%20Powers,from%20Vietnam%20in%20early%201973.

---

Tags: and, annika, annika-maduraperuma, clause, commerce, commerce-clause, commerce-clause-and-declare-war-clause-annika-maduraperuma, declare, declare-war, declare-war-clause, maduraperuma, segregation, vietnam, vietnam-war, war