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The Declare War Clause, Part 5: The Civil War
September 30, 2024
This Legal Sidebar is the fifth part of an eight-part series that discusses the Declare War Clause in Article
I, Section 8, Clause 11 of the Constitution, which grants Congress the power To declare War, grant
Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.] The power
to take the nation to war is a central element of the Constitution's scheme of war powers, but
interpretation of the Declare War Clause is complex and evolving. This Sidebar series discusses the
Supreme Court's jurisprudence related to declarations of war by Congress and highlights interbranch
practices that illuminate the executive and legislative branches' sometimes differing interpretations of the
clause. Additional information on Congress's war powers and the President's powers as Commander-in-
Chief can be found in the Constitution Annotated.
Outbreak of the Civil War
Upon the outbreak of hostilities in the Civil War, Congress did not formally declare war on the
Confederate states due to the internal nature of the conflict, because Congress was not in session at the
conflict's onset, and because the war disrupted Congress's normal functioning. Instead, President Lincoln
took the initiative by issuing a set of proclamations in spring 1861 calling forth the militia, instituting a
naval blockade of ports in states that had seceded from the Union, and calling for volunteers and
enlistment in the military. When Congress returned in session later that summer, it passed legislation
authorizing the President to declare the inhabitants of rebelling states to be in a state of insurrection and
stating that Congress approved and in all respects legalized the President's earlier proclamations.
The Prize Cases
The absence of a formal declaration of war led to some dispute over the legality of the Union military's
actions. After Union forces seized neutral ships and their cargo to enforce the naval blockade of
Confederate ports, a group of shipowners filed suit challenging the seizures' lawfulness. A consolidated
set of these challenges, known as The Prize Cases, reached the Supreme Court in 1863 in the midst of
active conflict. The claimants argued that the President had no authority to order their ships' seizure
without a declaration of war, especially during the period before Congress ratified the President's
proclamations. The Supreme Court rejected this formalistic interpretation of the Constitution and
Congressional Research Service
https://crsreports.congress.gov
LSB11234
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/goveqtr0001&div=1&collection=&method=preview&ext=.png&size=3)
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