Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Perhaps a better example of Taney’s attitude toward the relaxing of constitutional restraints in wartime is to be found in an earlier, unpublished opinion, quoted by Swisher in his biography of the Chief Justice:

“A civil war or any other war does not enlarge the powers of the federal government over the states or the people beyond what the compact has given to it in time of war. A state of war does not annul the 10th article of the amendments to the Constitution, which declares that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.’

“Nor does a civil war or any other war absolve the judicial department from the duty of maintaining with an even and firm hand the rights and powers of the federal government, and of the states, and of the citizens, as they are written in the Constitution, which every judge is sworn to support.”[725]

For the other expressions of this absolutist view, we must look to opinions handed down in the immediate postwar periods of 1866 and 1946. Ex parte Milligan[726] involved the incarceration of a northerner suspected of Southern sympathies. Could such an individual be tried, convicted and sentenced to death by a military tribunal, in an area far behind the Northern lines, in fact, in a State which had never been invaded by the Southern armies? Scores of such instances of military trial and conviction of civilians had occurred in Northern states untouched by the war.

The majority opinion for the Supreme Court disposing of this issue was written by Justice Davis and constitutes as rigid a definition of the limits circumscribing the war powers as could possibly be stated:

“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism; but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it, which are necessary to preserve its existence....

“... It could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.”[727]

This opinion by a Lincoln appointee to the Court was offset in part by the concurring opinion of Lincoln’s former Secretary of the Treasury. Chief Justice Chase could conceive of a situation in which Congress might find such measures “essential to the prosecution of the war with vigor and success,” and would therefore be entitled under the Constitution to resort to them. Independent of statutory authorization the President, however, could not employ such power. He was limited to executing the measures adopted by Congress.[728]

Some eighty years later, in 1941, martial law was declared in Hawaii. From that time through the Fall of 1945, the Islands were ruled by the military. After bitter and protracted litigation, in which the federal courts in Honolulu were particularly outspoken against the type of military rule practiced in the Islands, the cases of Duncan v. Kahanamoku and White v. Steer managed to surmount the obstacle course to the Supreme Court.[729] Duncan and White were civilians who had been apprehended during the war and tried and convicted by the military, the former for assault against a Marine sentry, and the latter for embezzlement. Both were crimes under the Hawaiian civil code. Challenging the jurisdiction of the military to try these men, a lower federal court ordered their release upon petition for habeas corpus; and on appeal the validity of the District Court order was sustained by the Supreme Court in an opinion written by Justice Black. The case turned upon a narrow interpretation of the meaning of “martial law.” The term did not, Black said, embrace trial of civilians by military courts. He did leave the door ajar, however, implying that it is not inconceivable in a situation of dire necessity, that such trial of civilians by the military might be upheld.

In a concurring opinion, however, Justice Murphy restated the principle expressed in the Milligan case. Exalting civilian supremacy over the military, he reiterated the Milligan rule that civilians may not be tried by the military when the courts are open and functioning. Not only did he agree with Justice Black that the acts of the military contravened statutory law, but he also was of the belief they were proscribed by the due process clause and therefore manifestly unconstitutional. Unlike the Civil War Justices, however, he suggested that until the courts were able to resume their functions the military might retain custody of its prisoners.[730]