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                                                                                  Updated December 16,2020
Defense Primer: Congress's Constitutional Authority with

Regard to the Armed Forces

     A  tc K1 Sectkmn 8, Cass         I -4
The Congress shallhavepower ***;

To declare War, grant Letters ofMarqueandReprisal, and
make Rules concerning Captures on Landand Water.

To raise and support Armies, butno Appropriation of
Money  to that Use shall befor a longer Term than two

To provide and maintaina Navy.

To make Ru lesfor the Government and Regulation ofthe
land an dn ava lForces.

TKe   War~  Ptwers
In Lichterv. United States, 334U.S. 742 (1948), the
Supreme Court discusses the war powersofCongress as
the sumof many interconnected authorities found in the
Constitution. Addressing the constitutionality of the
Renegotiation Act, an act allowing thegovernmentto
renegotiate contracts related to war supplies during WWII,
the Court declared that

    In viewofthis power 'To raise and support Armies,
    ... and the power granted in the s ame Article of the
    Constitution 'to make all Laws which shall be
    necessary and proper for carrying into Execution
    the foregoing Powers,' . . . the only question
    remaining is whether the Renegotiation Act was a
    law  'necessary and proper  for carrying into
    Execution' the war  powers  of Congress  and
    especially its power to support armies.
In a footnote, the Court listed the Preamble, the Necessary
and Proper Clause, theprovis ions authorizing Congress to
lay taxes and provide for the common defense, to declare
war, and to provide and maintain a navy, together with the
clause designating the President as Commander-in-Chief of
the Army and Navy, as being amongthe many other
provisions implementing the Congress andthePresident
with powers to meet the varied demands of war....

The power To declare War has long been construed to
mean not only that Congress can formally take the nation
into war, but also that it can authorize the use of the Armed
Forces for mihtary expeditions thatmay not amount to war.
While ares trictive interpretation of the power To declare
War is possible, for example, by viewing the Framers' use
of the verb to declarerather than to make as an
indication ofan intentto limit Congress's ability to affect
the course of a war once it is validly commenced,
Congres s's other po wers over the us e of the military would
likely fill any resulting void. In practice, courts have not

sought to delineate the boundaries of each clause relating to
war powers or identify gaps betweenthemto find specific
powers that are denied to Congress.

However, the Supreme Court has suggested that Congress
might overstep its bounds into presidential territory ifit
were to interfere with the conduct of military operations.

  Congress has the power not only to raise and
  support and govern armies, but to declare war. It has
  therefore the power to provide by law for carrying on
  war. This power necessarily extends to all legislation
  essential to the prosecution of war with vigor and
  success except such as interferes with the command
  of the forces and the conduct of campaigns. That
  power  and duty belong to the President as
  comman  der-in-chief.

  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866)
  (Chase, C.J., concurring).

Debates relating to legislation regarded by some as
interfering with the President's Commander-in-Chief
authority are frequently framed in terms of legislative
meddling in military operations, but the line between
regulating the Armed Forces and directing campaigns has
proved elusive.

Congress has also used its authority to provide for the
organization and regulation of the Armed Forces to
determine how military personnel are to be organized and
employed. For example, early statutes prescribed in fairly
precise terms how military units were to be formed and

The  U nfomn' Code& of M~ztar  jusc
The Uniform Code of Military Justice (UCMJ) is an
exercise of Congress's powerto rais e and support armies
(Art. I, § 8, cl. 12); provide and maintain a Navy (Art. I,
§ 8, cl.13); and to make rules for organizing and
disciplining their members (Art. I, § 8, cl. 14). Under this
authority, Congress enacted the UCMJ (Chapter 47 of Title
10, U.S. Code), which is the code of military criminal laws
applicable to all U.S. military members worldwide.

The Presidentimplements the UCMJ through the Manual
for Courts -Martial (MCM), which was initially prescribed
by Executive Order 12473 (April 13, 1984). The MCM
contains the Rules for Courts-Martial (RCM), the Military



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