Defense Primer: Congress’s Constitutional Authority with Regard to the Armed Forces
Updated December 14, 2022
Defense Primer: Congress’s Constitutional Authority with
Regard to the Armed Forces
Article I, Section 8, Clauses 11-14
sought to delineate the boundaries of each clause relating to
The Congress shall have power *** ;
war powers or identify gaps between them to find specific
powers that are denied to Congress.
To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water.
The Supreme Court has suggested, however, that Congress
might overstep its bounds into presidential territory if it
To raise and support Armies, but no Appropriation of
were to interfere with the conduct of military operations.
Money to that Use shall be for a longer Term than two
Years.
“Congress has the power not only to raise and
To provide and maintain a Navy.
support and govern armies, but to declare war. It has
therefore the power to provide by law for carrying on
To make Rules for the Government and Regulation of the
war. This power necessarily extends to all legislation
land and naval Forces.
essential to the prosecution of war with vigor and
success except such as interferes with the command
The War Powers
of the forces and the conduct of campaigns. That
In Lichter v. United States, 334 U.S. 742 (1948), the
power and duty belong to the President as
Supreme Court discusses the “war powers” of Congress as
commander-in-chief.”
the sum of many interconnected authorities found in the
Constitution. Addressing the constitutionality of the
Ex parte Mil igan, 71 U.S. (4 Wall.) 2, 139 (1866)
Renegotiation Act, an act allowing the government to
(Chase, C.J., concurring).
renegotiate contracts related to war supplies during WWII,
the Court declared that
Debates relating to legislation regarded by some as
In view of this power ‘To raise and support Armies,
interfering with the President’s Commander-in-Chief
... and the power granted in the same Article of the
authority are frequently framed in terms of legislative
Constitution ‘to make all Laws which shall be
meddling in military operations, but the line between
necessary and proper for carrying into Execution
regulating the Armed Forces and directing campaigns has
the foregoing Powers,’ ... the only question
proved elusive.
remaining is whether the Renegotiation Act was a
law ‘necessary and proper for carrying into
Legislation Pursuant to Congress’s War
Execution’ the war powers of Congress and
Powers
especially its power to support armies.
The Supreme Court held in Torres v. Texas Dep’t of Pub.
Safety, 142 S. Ct. 2455 (2022), that “[a]n unbroken line of
In a footnote, the Court listed the Preamble, the Necessary
precedents supports the conclusion [that] Congress may
and Proper Clause, the provisions authorizing Congress to
legislate at the expense of traditional state [sovereign
lay taxes and provide for the common defense, to declare
immunity] to raise and support the Armed Forces.”
war, and to provide and maintain a navy, together with the
Examples of legislation follow.
clause designating the President as Commander in Chief of
the Army and Navy, as being “among the many other
The Uniform Code of Military Justice
provisions implementing the Congress and the President
The Uniform Code of Military Justice (UCMJ) is an
with powers to meet the varied demands of war.”
exercise of Congress’s power to raise and support armies
(Art. I, § 8, cl. 12); provide and maintain a Navy (Art. I,
The power “To declare War” has long been construed to
§ 8, cl.13); and to make rules for organizing and
mean not only that Congress can formally take the nation
disciplining their members (Art. I, § 8, cl. 14). Under this
into war, but also that it can authorize the use of the Armed
authority, Congress enacted the UCMJ (Chapter 47 of Title
Forces for military expeditions that may not amount to war.
10, U.S. Code), which is the code of military criminal laws
While a restrictive interpretation of the power “To declare
applicable to all U.S. military members worldwide.
War” is possible, for example, by viewing the Framers’ use
of the verb “to declare” rather than “to make” as an
The President implements the UCMJ through the Manual
indication of an intent to limit Congress’s ability to affect
for Courts-Martial (MCM), which was initially prescribed
the course of a war once it is validly commenced,
Congress’
by Executive Order 12473 (April 13, 1984). The MCM
s other powers over the use of the military would
contains the Rules for Courts-Martial (RCM), the Military
likely fill any resulting void. In practice, courts have not
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Defense Primer: Congress’s Constitutional Authority with Regard to the Armed Forces
Rules of Evidence (MRE), and the UCMJ. The MCM
remains with the States, subordinate nevertheless to
covers almost all aspects of military law. Military courts are
the paramount law of the general government.
not considered Article III courts, but instead are established
pursuant to Article I of the Constitution and, as a result, are
The National Defense Act of 1916 brought the militia,
of limited jurisdiction.
which had been an almost purely state institution, under the
control of the national government. The term “militia of the
Servicemembers Civil Relief Act
United States” was defined to comprise “all able-bodied
The Servicemembers Civil Relief Act (SCRA), Chapter 50
male citizens of the United States and all other able-bodied
of Title 50, U.S. Code, is an exercise of Congress’s power
males who have ... declared their intention to become
citizens of the United States,” between the ages
to raise and support armies (U.S. Const. Art. I, § 8, cl. 12)
of 18 and
and to declare war (Art. I, § 8, cl. 11). The purpose of the
45. The act divided the militia into the National Guard and
act is to provide for, strengthen, and expedite the national
the Unorganized Militia. Among other things, the act
defense by protecting servicemembers, enabling them to
organized the National Guard, determined its size in
“devote their entire energy to the defense needs of the
proportion to the population of the several states, required
Nation.” The SCRA protects servicemembers by
that all enlistments be for “three years in service and three
years in reserve,”
temporarily suspending certain judicial and administrative
and limited the appointment of officers to
those who “shall have successfully passed such tests as to
proceedings and transactions that may adversely affect their
legal rights during military service. The SCRA does not
. . . physical, moral and professional fitness as the President
provide forgiveness of all debts or the extinguishment of
shall prescribe.” It also authorized the President in certain
emergencies to “draft into the military service of the United
contractual obligations on behalf of servicemembers who
have been called to active duty, nor does it grant absolute
States to serve therein for the period of the war unless
immunity from civil lawsuits. Instead, it provides for the
sooner discharged, any or all members of the National
Guard and National Guard Reserve,” who thereupon
suspension of claims and protection from default
should
“stand discharged from the militia.”
judgments. In this way, it seeks to balance the interests of
servicemembers and their creditors, spreading the burden of
national military service to a broader portion of the
The militia clauses do not constrain Congress in raising and
citizenry. Congress has amended the SCRA from time to
supporting a national army under the war powers clauses
time, most recently to include certain protections for
previously discussed. In Perpich v. Department of Defense,
spouses of servicemembers and for servicemembers whose
496 U.S. 334 (1990), the Supreme Court approved the
system of “dual enlistment,” under which persons enlisted
relocation orders were stopped due to the COVID-19
pandemic.
in state militia (National Guard) units simultaneously enlist
in the National Guard of the United States, and, when called
The Militia
to active duty in the federal service, are relieved of their
Article I, Section 8, Clauses 15 and 16, provide that:
status in the state militia. Consequently, the restricted
purposes in the first militia clause have no application to the
The Congress shall have power *** ;
federalized National Guard. There is no constitutional
requirement that state governors hold a veto power over
To provide for calling forth the Militia to execute the Laws
federal duty training conducted outside the United States,
of the Union, suppress Insurrections and repel Invasions;
even without a declaration of national emergency or war.
To provide for organizing, arming, and disciplining, the
Relevant Statutes
Militia, and for governing such Part of them as may be
Titles 10 and 32, U.S. Code.
employed in the Service of the United States, reserving to
the States respectively, the Appointment of the Officers, and
Title 50, U.S. Code, Chapter 50.
the Authority of training the Militia according to the
discipline prescribed by Congress.
The Supreme Court, in Houston v. Moore, 18 U.S. (5
CRS Products
Wheat.) 1 (1820), stated that the power of Congress over
CRS Report R45283, The Servicemembers Civil Relief Act (SCRA):
the militia
Section-by-Section Summary, by Jennifer K. Elsea
CRS Report R46503, Military Courts-Martial Under the Military
being unlimited, except in the two particulars of
Justice Act of 2016, by Jennifer K. Elsea and Jonathan M.
officering and training them, ... it may be exercised
Gaffney
to any extent that may be deemed necessary by
Congress.... [T]he power of the State governments
to legislate on the same subjects, having existed
prior to the formation of the Constitution, and not
Jennifer K. Elsea, Legislative Attorney
having been prohibited by that instrument, it
IF10535
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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 9 · UPDATED