Updated November 13, 2018
Defense Primer: Congress’s Constitutional Authority with
Regard to the Armed Forces
Article I, Section 8, Clauses 11-14
However, the Supreme Court has suggested that Congress
The Congress shall have power *** ;
might overstep its bounds into presidential territory if it
were to interfere with the conduct of military operations.
To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water.
“Congress has the power not only to raise and
To raise and support Armies, but no Appropriation of
support and govern armies, but to declare war. It has
Money to that Use shall be for a longer Term than two
therefore the power to provide by law for carrying on
Years.
war. This power necessarily extends to all legislation
essential to the prosecution of war with vigor and
To provide and maintain a Navy.
success except such as interferes with the command
of the forces and the conduct of campaigns. That
To make Rules for the Government and Regulation of the
power and duty belong to the President as
land and naval Forces.
commander-in-chief.”

The War Powers:
Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866)
In Lichter v. United States, 334 U.S. 742 (1948), the
(Chase, C.J., concurring).
Supreme Court discusses the “war powers” of Congress as
the sum of many interconnected authorities found in the

Constitution. Addressing the constitutionality of the
Renegotiation Act, an act allowing the government to
Debates relating to legislation regarded by some as
renegotiate contracts related to war supplies during WWII,
interfering with the President’s Commander-in-Chief
the Court declared that “In view of this power ‘To raise and
authority are frequently framed in terms of legislative
support Armies, ... and the power granted in the same
meddling in military operations, but the line between
Article of the Constitution ‘to make all Laws which shall be
regulating the Armed Forces and directing campaigns has
necessary and proper for carrying into Execution the
proved elusive.
foregoing Powers,’ ... the only question remaining is
whether the Renegotiation Act was a law ‘necessary and
Congress has also used its authority to provide for the
proper for carrying into Execution’ the war powers of
organization and regulation of the Armed Forces to
Congress and especially its power to support armies.” In a
determine how military personnel are to be organized and
footnote, the Court listed the Preamble, the Necessary and
employed. For example, early statutes prescribed in fairly
Proper Clause, the provisions authorizing Congress to lay
precise terms how military units were to be formed and
taxes and provide for the common defense, to declare war,
commanded.
and to provide and maintain a navy, together with the
clause designating the President as Commander-in-Chief of
Examples of Legislation
the Army and Navy, as being “among the many other
provisions implementing the Congress and the President
The Uniform Code of Military Justice
with powers to meet the varied demands of war.... ”
The Uniform Code of Military Justice (UCMJ) is an
exercise of Congress’s power to raise and support armies
The power “To declare War” has long been construed to
(Art. I, §8, cl. 12); provide and maintain a Navy (Art. I, §8,
mean not only that Congress can formally take the nation
cl.13); and to make rules for organizing and disciplining
into war, but also that it can authorize the use of the Armed
their members (Art. I, §8, cl. 14). Under this authority,
Forces for military expeditions that may not amount to war.
Congress enacted the UCMJ (Chapter 47 of Title 10, U.S.
While a restrictive interpretation of the power “To declare
Code), which is the code of military criminal laws
War” is possible, for example, by viewing the Framers’ use
applicable to all U.S. military members worldwide.
of the verb “to declare” rather than “to make” as an
indication of an intent to limit Congress’s ability to affect
The President implements the UCMJ through the Manual
the course of a war once it is validly commenced,
for Courts-Martial (MCM), which was initially prescribed
Congress’s other powers over the use of the military would
by Executive Order 12473 (April 13, 1984). The MCM
likely fill any resulting void. In practice, courts have not
contains the Rules for Courts-Martial (RCM), the Military
sought to delineate the boundaries of each clause relating to
Rules of Evidence (MRE), and the UCMJ. The MCM
war powers or identify gaps between them to find specific
covers almost all aspects of military law. Military courts are
powers that are denied to Congress.
not considered Article III courts, but instead are established
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Defense Primer: Congress’s Constitutional Authority with Regard to the Armed Forces
pursuant to Article I of the Constitution and, as a result, are
male citizens of the United States and all other able-bodied
of limited jurisdiction.
males who have ... declared their intention to become
citizens of the United States,” between the ages of 18 and
Servicemembers Civil Relief Act
45. The act divided the militia into the National Guard and
The Servicemembers Civil Relief Act (SCRA), Chapter 50
the Unorganized Militia. Among other things, the act
of Title 50, U.S. Code, is an exercise of Congress’s power
organized the National Guard, determined its size in
to raise and support armies (U.S. Const. Art. I, §8, cl. 12)
proportion to the population of the several states, required
and to declare war (Art. I, §8, cl. 11). The purpose of the act
that all enlistments be for “three years in service and three
is to provide for, strengthen, and expedite the national
years in reserve,” and limited the appointment of officers to
defense by protecting servicemembers, enabling them to
those who “shall have successfully passed such tests as to ...
“devote their entire energy to the defense needs of the
physical, moral and professional fitness as the President
Nation.” The SCRA protects servicemembers by
shall prescribe.” It also authorized the President in certain
temporarily suspending certain judicial and administrative
emergencies to “draft into the military service of the United
proceedings and transactions that may adversely affect their
States to serve therein for the period of the war unless
legal rights during military service. The SCRA does not
sooner discharged, any or all members of the National
provide forgiveness of all debts or the extinguishment of
Guard and National Guard Reserve,” who thereupon should
contractual obligations on behalf of servicemembers who
“stand discharged from the militia.” The National Guard is
have been called to active duty, nor does it grant absolute
now governed by Title 32, U.S. Code.
immunity from civil lawsuits. Instead, it provides for the
suspension of claims and protection from default
The militia clauses do not constrain Congress in raising and
judgments. In this way, it seeks to balance the interests of
supporting a national army under the war powers clauses
servicemembers and their creditors, spreading the burden of
previously discussed. In Perpich v. Department of Defense,
national military service to a broader portion of the
496 U.S. 334 (1990), the Supreme Court approved the
citizenry.
system of “dual enlistment,” under which persons enlisted
in state militia (National Guard) units simultaneously enlist
The Militia:
in the National Guard of the United States, and, when called
Article I, Section 8, Clauses 15 and 16
to active duty in the federal service, are relieved of their
status in the state militia. Consequently, the restricted
The Congress shall have power *** ;
purposes in the first militia clause have no application to the
federalized National Guard. There is no constitutional
To provide for calling forth the Militia to execute the Laws
requirement that state governors hold a veto power over
of the Union, suppress Insurrections and repel Invasions;
federal duty training conducted outside the United States, or
that a national emergency be declared before such training
To provide for organizing, arming, and disciplining, the
may take place.
Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to
Relevant Statutes
the States respectively, the Appointment of the Officers, and
the Authority of training the Militia according to the
Titles 10 and 32, U.S. Code
discipline prescribed by Congress.

The Supreme Court, in Houston v. Moore, 18 U.S. (5
Wheat.) 1 (1820), stated that the power of Congress over
the militia “being unlimited, except in the two particulars of
CRS Products
officering and training them ... it may be exercised to any
CRS Report R41989, Congressional Authority to Limit Military
extent that may be deemed necessary by Congress.... The
Operations, by Jennifer K. Elsea, Michael John Garcia, and
power of the state government to legislate on the same
Thomas J. Nicola
subjects, having existed prior to the formation of the
CRS Report R45283, The Servicemembers Civil Relief Act (SCRA):
Constitution, and not having been prohibited by that
Section-by-Section Summary, by Jennifer K. Elsea
instrument, it remains with the States, subordinate
nevertheless to the paramount law of the General

Government.... ”
Jennifer K. Elsea, Legislative Attorney
The National Defense Act of 1916 brought the militia,
which had been an almost purely state institution, under the
IF10535
control of the national government. The term “militia of the
United States” was defined to comprise “all able-bodied

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Defense Primer: Congress’s Constitutional Authority with Regard to the Armed Forces



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https://crsreports.congress.gov | IF10535 · VERSION 5 · UPDATED

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