Congressional Authority in Wartime

Article I.

Section 8.  The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerninig Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . .

Current Issues

War Powers Resolution Revisited (also posted under Executive Authority in Wartime).  The National War Powers Commission, led by former Secretaries of State James A. Baker, III and Warren Christopher, recommended that Congress repeal the War Powers Resolution and replace it with a new statute that would require the President to consult with a newly created Joint Congressional Consultation Committee before deploying U.S. troops into "significant armed conflict."  Congress would then vote up or down on the action within 30 days.  Read coverage in the New York Times here; read the full Commission report here.

Suspension of Habeas Corpus (also posted under Executive Authority in Wartime).  By a 5-4 vote, the U.S. Supreme Court ruled on June 12, 2008, in Boumediene v. Bush that the Suspension Clause has full effect at Guantanamo Bay, and that alien detainees at Guantanamo have the privilege of habeas corpus, notwithstanding section 7 of the Military Commissions Act of 2006, which denies federal courts jurisdiction to hear such habeas actions.  UPDATE (July 23, 2008):  Attorney General Michael Mukasey encouraged Congress in his July 21 speech to the American Enterprise Institute to enact legislation to guide the courts in hearing habeas petitions in the wake of Boumediene--to answer "the questions that Boumediene left unanswered," in Mukasey's words.  Read the prepared speech here; link to audio or video with Q&A, here.  Not surprisingly, the speech generated some controversy; get a sense critical reactions from the Center for Constitutional Rigths, here.