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Jason Joseph – The Commerce Clause and Declare War Clause

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Under the Articles of Confederation, states had the power to handle their commerce largely independently which hindered trade between states and hurt the overall economy. The Commerce Clause allowed Congress to centralize trade between nations, states, and Indian tribes. This increased trade and the movement of goods, bolstering the economy. In 1808, the first year it was authorized by the constitution to do so, Congress banned the importation of slaves because it fell under foreign commerce. This, as well as Gibbons v. Ogden (1824), provided a precedent for Congress to overrule state laws that pertained to interstate or foreign commerce. Katzenbach v. McClung (1964) was a case where McClung believed Congress had no power to integrate his restaurant. McClung was forced to integrate because his business fit the definition of interstate commerce and Congress therefore had authority over it. The Supreme Court ruled that segregation created limitations on African Americans who traveled to different states, falling under the Commerce Clause, allowing Congress to gain more authority over the states to end segregation. The definition of interstate commerce is highly contested with those wanting decreased government oversight pushing for the original definition of navigation and trade, and those wanting increased government oversight arguing for a broader interpretation. By leaving the meaning of interstate commerce broad it assures that as the circumstances in the United States change so too can the economic practices.

The Declare War clause gives Congress the sole power to wage war, commandeer citizens’ ships in times of war, and provide legislation over obtained territory. The framers intended the Declare War clause to serve as a check to the President’s military power. However, the framers also wanted The President to keep enough autonomy in order to respond to sudden attacks against the nation. In 1964, Congress authorized military support to defend the assets and allies the United States had in Southeast Asia. This led to the Vietnam War, an undeclared war,  where The President took actions that vastly expanded on Congress’ authorization, such as having a draft. When President Nixon approved a secret bombing in Cambodia during the war, Congress realized it needed increased power in foreign military conflicts. The War Powers Resolution of 1973, mandates that The President communicate with Congress before using force, and obtain approval from Congress for missions longer than 60 days. This is intended to allow Congress to control the military direction of the nation. On the contrary, this resolution gives The President 60 days of unauthorized action, which prior to the resolution The President did not have. As weapons’ capability for destruction grows, troops travel faster, and information is spread more rapidly, the devastation and lasting impact that can be accomplished in 60 days of conflict is increasing. Can military action that profoundly affects the entire United States and the well-being of other nations be entrusted to a single individual?

 

Bibliography

Barnett, Randy E. “Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Barnett, Randy E., and Andrew Koppelman. “The Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Denniston, Lyle. “Was the Vietnam War Unconstitutional?” National Constitution Center. Last modified September 20, 2017. Accessed May 30, 2023. https://constitutioncenter.org/blog/was-the-vietnam-war-unconstitutional.

 

Oyez. “Gibbons v. Ogden.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1789-1850/22us1.

 

———. “Katzenbach v. McClung.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1964/543.

 

Ramsay, Michael D., and Stephen I. Vladeck. “Declare War Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Richard Nixon Presidential Library and Museum. “War Powers Resolution of 1973.” Richard Nixon Presidential Library and Museum. Last modified July 27, 2021. Accessed May 31, 2023. https://www.nixonlibrary.gov/news/war-powers-resolution-1973#:~:text=The%20War%20Powers%20Resolution%20of,the%20executive%20branch’s%20power%20when.

 

Vladeck, Stephen I. “Congress’s Statutory Abdication of Its Declare War Power.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Reese C-Constitution Project-The Declare War Clause

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The Declare War Clause is a part of the eighth section of the first article of the Constitution of the United States. The clause states “The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” The framers of the Constitution wished to include this clause to create a concrete limit on the power of the executive branch and disallow a single person from controlling such a momentous decision as Declaring War, unlike the British Monarchy where the king can declare war.

By vesting the power to declare war in the hands of Congress, the framers guaranteed that there would be checks and balances to the decision as Congress would need to vote to instigate a war. The clause has commonly been understood as vesting the power to declare war in Congress in order to limit the power of the Executive Branch and add a democratic process into the steps to declare war However, it is slightly contested among scholars as a majority of scholars agree that Presidents cannot instigate wars without the permission of Congress while a minority believes that the Declare War Clause only gives Congress the power to make formal declarations of war and as a result, the President can declare war.

To support this point, some scholars have looked carefully at the language of the clause and argued that the power to “declare war” can be thought of as a formal declaration and not the use of military force. As well, these scholars have looked into the historical practices of the clause: In response to attacks on American Ships in the Bey of Tripoli during Thomas Jefferson’s presidency, Jefferson responded by sending ships to the Bey but instructed them to not attack the enemy ships and to only subdue them.

Jefferson felt that by commanding his ships to not attack the enemies, he wouldn’t be violating the Declare War Clause. In response to Jeffersons’ actions, former Secretary of the Treasury, Alexander Hamilton, stated that he found the clause to be vesting the power to declare war in the hands of Congress, but if another country had initiated a war, as the Tripolitans had in this case, then the country was already in a state of war and due to this, no declaration was needed to initiate war and use violence.

Using Jefferson’s actions and Hamilton’s view, scholars have argued that Presidents are allowed to deploy troops that are not involved in combat and initiate war if it is in response to attacks on the country. In the 1863 Prizes Case, the Supreme Court sustained President Lincoln’s blockade of southern states’ ports, without the permission of Congress, in response to the state’s attack on Fort Sumter. The court concluded that the blockade was constitutional because a state of war was in place as a result of the attack, therefore, the permission of Congress was not needed. The case clearly illustrates the President’s power to initiate war in the case of an attack on the country.

The Declare War Clause distinctly exhibits the separation of powers, which was heavily implemented by the French in their constitutions and it represents how both the American and French constitutions were heavily influenced by each country’s negative experiences under monarchs. I find that the scholars who believe that the Declare War Clause only gives Congress the ability to formally declare war are a minority for a reason: It seems backwards to think that the framers of the Constitution would not add a key separation of powers and that instead, that they were only talking about formalities.

I believe this because the concept of separation of powers is one of the backbones of the constitution and so I feel that it is more reasonable that this clause is using the concept. If I had the ability to amend the clause I would opt to add a section stating that the President cannot declare war unless the country has been attacked or they have the permission of Congress. I think this adds a lot of clarity and prevents any future President from feeling like they could not use the full force needed because they were trying to follow the clause so carefully.