The Sweeping Domestic War Powers of Congress
Saikrishna Bangalore Prakash*
With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions. In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented federal legislative power to prevail in domestic wars. The “Sweeping Clause” grants Congress far-reaching authority to carry federal powers—legislative, executive, and judicial—into execution. Using this authority, Congress may suspend the ordinary forms of government and some civil liberties as a means of implementing federal powers. For example, Congress may suspend the privilege of the writ of habeas corpus or authorize military trial of civilians if it supposes that such measures will help ensure that federal authority extends throughout the United States. Hence Congress has something of a domestic wartime power that permits it to enact laws meant to defeat rebels and invaders and thereby ensure the continuity of the Constitution and the federal and state governments that sustain it.
* James Monroe Distinguished Professor of Law & Horace W. Goldsmith Research Professor, University of Virginia Law School. Thanks to participants in the Berkeley Law Public Law Workshop, the Northwestern University School of Law Constitutional Colloquium, the University of San Diego School of Law Faculty Workshop, and the University of Virginia Law School Faculty Workshop. Thanks also to Will Baude, John Harrison, Tonja Jacobi, Kurt Johnson, Eugene Kontorovich, John McGinnis, Caleb Nelson, Eric Posner, Michael Rappaport, Mike Ramsey, Hannah Swanson, Amanda Tyler, Adrian Vermeule, Steven Walt, and John Yoo. Thanks to the reference librarians at the University of Virginia for excellent research assistance and to the Virginia Law School for summer research support. Thanks to Ryan Baasch and Rachel Kincaid for research assistance.