ArtI.S8.C11.3.2 Delegation of Legislative Power in Wartime

Article I, Section 8, Clause 11:

[The Congress shall have Power . . .] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

During wartime, Congress has been prone to delegate more powers to the President than at other times. 1 The Court, however, has insisted that, [i]n peace or war it is essential that the Constitution be scrupulously obeyed, and particularly that as in times of peace the respective branches of the government keep within the power assigned to each by the Constitution. On the other hand, . . . [i]n time of crisis nothing could be more tragic and less expressive of the intent of the people than so to construe their Constitution that by its own terms it would substantially hinder rather than help them in defending its national safety.2 Few cases, however, actually discuss when a wartime delegation of legislative power might be excessive. 3 Two theories have been advanced at times when the delegation doctrine carried more force than it has in recent years. First, has been suggested that, because the war power is inherent in the Federal Government, and one shared by the legislative and executive branches, Congress does not really delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner. But this view overlooks the fact that the Constitution expressly vests the war power as a legislative power in Congress. Second, it has been suggested that Congress’s power to delegate in wartime is as limited as in other situations, but that the existence of a state of war is a factor weighing in favor of the validity of the delegation.

The first theory was fully stated by Justice Bradley in Hamilton v. Dillin, 4 upholding a levy imposed by the Secretary of the Treasury pursuant to an act of Congress. To the argument that the levy was a tax the fixing of which Congress could not delegate, Justice Bradley noted that the power exercised does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government. . . .5

Both theories found expression in different passages of Chief Justice Stone's opinion in Hirabayashi v. United States, 6 upholding executive imposition of a curfew on Japanese-Americans pursuant to legislative delegation. On the one hand, he spoke to Congress and the Executive, acting in cooperation, to impose the curfew, 7 while, on the other hand, he noted that a delegation in which Congress has determined the policy and the rule of conduct, leaving to the Executive the carrying-out of the policy, is permissible delegation. 8

A similar ambiguity is found in Lichter v. United States, 9 upholding the Renegotiation Act, but taken as a whole the Court there espoused the second theory. The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.10 The Court then examined the exigencies of war and concluded that the delegation was valid. 11

Footnotes

  1.  For an extensive consideration of this subject in the context of the President's redelegation of it, see N. Grundstein, Presidential Delegation of Authority in Wartime (1961).
  2.  Lichter v. United States, 334 U.S. 742, 779-80 (1948).
  3.  In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), a contention that an act [was] void as a delegation of federal power to state officials was dismissed as too wanting in merit to require further notice. Likewise, the contention that . . . vesting administrative officers with legislative discretion [is unconstitutional] has been so completely adversely settled as to require reference only to some of the decided cases. Id. (citing three cases). A wartime delegation was upheld by reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).
  4.  88 U.S. (21 Wall.) 73 (1875).
  5.  88 U.S. at 96-97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).
  6.  320 U.S. 81 (1943).
  7.  320 U.S. at 91-92, 104.
  8.  320 U.S. at 104.
  9.  334 U.S. 742 (1948).
  10.  334 U.S. at 778-79, 782.
  11.  334 U.S. at 778-83.