Jonah Patel
The US Constitution grants Congress the power to make rules for the governance and regulation of the military. This includes the ability to declare war, raise and fund armies, and classify and conscript manpower for military service. The Framers of the Constitution intended to distribute power over the military between the three branches of government, including the executive and legislative branches, to prevent the concentration of military power in the hands of a single person. The Supreme Court has upheld Congress's broad authority over the military, including the power to create a separate court system for the Armed Forces. Military personnel swear allegiance to the Constitution and are expected to act without political partisanship, maintaining the trust of elected leaders and the American public they serve.
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What You'll Learn
Congress's power to declare war
The U.S. Constitution grants Congress the power to declare war, raise and fund armies, and make rules for the governance of the military. This is outlined in Article I, Section 8 of the Constitution, also known as the War Powers Clause. The Framers of the Constitution intentionally gave these powers to Congress to act as a check on the president's power as commander-in-chief of the military, ensuring that the decision to go to war is not left to a single individual.
Throughout history, there have been conflicting interpretations of Congress's war powers by Congress and the president. The Supreme Court has played a role in interpreting these powers, with cases such as United States v. O'Brien upholding Congress's broad constitutional power to raise and regulate armies. The War Powers Resolution, passed by Congress in 1973, further asserted Congress's authority by requiring the president to obtain a declaration of war or authorization to use force from Congress within 60 days of initiating hostilities.
The Constitution does not specify the form that a declaration of war should take, and there is debate over the legal extent of the president's authority to take military action without a formal declaration of war. The United States has formally declared war in five separate conflicts, with four of those declarations coming after hostilities had already begun. These include the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.
Congress also has the power to raise and fund armies, which is an essential check on the president's commander-in-chief powers. This includes the ability to conscript manpower for military service and pass legislation governing the military's operations. The judiciary generally defers to Congress in matters related to the military due to its specialized nature.
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Raising and regulating armies
The US Constitution grants Congress the power to raise and regulate armies. This is outlined in Article I, Section 8, which enumerates Congress's powers, including the ability to declare war and raise armies. The Framers of the Constitution gave these powers to Congress to act as a check on the president's ability to wage war as commander-in-chief of the military.
Throughout history, there have been conflicts between the legislative and executive branches regarding the scope of their respective powers. The Framers were cautious of granting the president excessive control over the military, so they allocated certain war powers to Congress. These powers include the ability to declare war, raise armies, and fund armies.
Congress's power to raise armies is further demonstrated by the Selective Service Act of 1917, which expanded the US military through conscription. The Supreme Court upheld the Act's constitutionality, rejecting arguments that it violated states' rights to maintain militias or the Thirteenth Amendment's protection against involuntary servitude. The Court held that states' rights to maintain militias were subordinate to the federal government's power to raise armies.
Congress has also set up a system of criminal law binding on all servicemen, with its own courts, procedures, and appeals processes. This military justice system applies to all servicemen, reservists during inactive duty training, and certain civilians with special relationships to the military.
Additionally, Congress has the responsibility to fund the military. Congress approves a military budget for the Department of Defense annually, and the president can veto this budget. This funding power acts as another check on the president's war powers, ensuring that the will of the governed plays a role in any war effort.
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Funding the military
The US Constitution gives Congress the power to declare war, raise armies, and fund them. This duty to fund the military acts as a check on the president's commander-in-chief powers. Congress approves a military budget for the Department of Defence every year, which the president can veto.
The Framers of the Constitution were cautious of granting the president excessive control over the military, so they vested Congress with the power to declare war, fund armies, and make other controls over military affairs. The Framers intended this separation of powers to limit the president's power to wage war.
The Supreme Court has ruled that the power of Congress to classify and conscript manpower for military service is "beyond question". Congress's broad constitutional power to raise and regulate armies and navies was observed to be passed pursuant to the grant of authority in clauses 12-14.
The Court has also upheld the validity of military post regulations, banning speeches and demonstrations of a partisan political nature, and the distribution of literature without prior approval of post headquarters. The commander is authorized to keep out materials that would endanger the loyalty, discipline, or morale of troops on the base.
The Posse Comitatus Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law. This law embodies the American value that military interference in civilian affairs is a threat to democracy and personal liberty.
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Military justice and court-martial jurisdiction
The U.S. Constitution grants Congress many war-related powers, including the power to raise and fund armies, declare war, and make rules for the governance of the military. The Constitution also gives Congress the authority to prescribe rules for the military's governance, which is subject to deference by the judiciary. This authority is based on the understanding that the military is a specialized society separate from civilian society, requiring different rules and discipline.
The scope of congressional and executive authority in governing the military is broad, and the judiciary generally defers to their judgments. This deference is based on the recognition of the unique nature of the military community and its mission. However, constitutional guarantees still apply to the military, and the Court has upheld the validity of certain constitutional rights for servicemen, such as in the case of United States v. Stanley, where an officer who was a subject of an Army experiment was allowed to bring a constitutional tort action for damages.
The military justice system operates within the framework set by Congress and the Constitution. Courts-martial, for example, are empowered by Congress to try servicemen for crimes proscribed by the Uniform Code of Military Justice (UCMJ). The UCMJ grants due process rights comparable to civilian procedures, and courts-martial have jurisdiction over active-duty service members and certain retirees who continue to receive pay.
When it comes to jurisdiction, military courts generally refrain from reviewing courts-martial decisions until all available military remedies are exhausted. This is known as the exhaustion of remedies doctrine. Additionally, courts outside the military justice system may issue writs necessary or appropriate to aid the court's existing jurisdiction under the All Writs Act. However, they cannot invoke this Act to enlarge their jurisdiction over actions outside their subject matter jurisdiction, such as administrative separations.
In conclusion, military justice and court-martial jurisdiction are shaped by the rules and regulations set forth by Congress and interpreted by the courts. The unique nature of the military is considered in the application of constitutional rights and protections, and the judiciary generally defers to the judgments of Congress and the executive branch in military affairs.
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Conscription and selective service
The US Constitution gives Congress the power to raise and fund armies, declare war, and make rules for the governance and regulation of the military. The Framers of the Constitution gave these powers to Congress to act as checks and balances on the president's commander-in-chief powers.
The Selective Service System (SSS) is an independent agency of the US government that maintains a database of registered male US citizens and other male residents potentially subject to military conscription, or the draft. While the US military is currently an all-volunteer force, registration is still required for contingency planning. Federal law requires nearly all male US citizens and male immigrants aged 18 to 25 to register with the SSS. Men up to age 26 can complete their registration, and those who fail to do so by age 26 may face consequences such as ineligibility for federal jobs, citizenship, or state-funded student financial aid.
The Selective Service Act of 1917 expanded the US military through conscription. The Supreme Court upheld the Act's constitutionality, rejecting arguments that it violated states' rights to maintain militias, Congress's authority to enact a draft, and the Thirteenth Amendment's protection against involuntary servitude.
Throughout history, the Selective Service System has been used to conscript men for military service during times of war or national emergency. For example, the Selective Training and Service Act of 1940 established the first peacetime conscription in US history, and the Selective Service Act of 1948 created the basis for the modern system, requiring all men aged 18 and older to register. During the Korean War (1950-1953), the number of conscripts was greatly increased to meet the demands of the conflict.
While the United States has not had a draft since 1973, the SSS continues to play a role in contingency planning and preparation for a potential draft. In the event of a national emergency, the SSS would be responsible for drafting eligible young men and providing personnel to the Department of Defense, with alternative service for conscientious objectors if authorized by the President and Congress.
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Frequently asked questions
Yes, Article I, Section 8 of the US Constitution enumerates Congress's powers, including the ability to declare war, raise armies, and make rules for the governance of the military.
The Framers of the Constitution gave these powers to Congress to ensure that the legislature had checks on the president's ability to wage war as commander-in-chief of the military.
The scope of Congress's authority to make rules for the military is broad and subject to great deference by the Judiciary. However, it is not entirely clear which constitutional guarantees apply to court-martial trials.
The Supreme Court has interpreted and upheld the constitutionality of various rules and regulations related to the military. The Court has also transitioned to an approach based on the Framers' intent when interpreting the Government and Regulation of the Military Clause.
