Article 1, Section 8, Clause 1 — War Of 1812 Mexican War And War Powers

prev | next

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; . . .

Congress issued its first formal declaration of war by declaring war against the United Kingdom of Great Britain and Ireland on June 18, 1812.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn1art1 " Act of June 18, 1812, ch. 102, 2 Stat. 755. Some scholars argue that Congress first “exercised its power to declare war and did, in fact, declare war, albeit without using that phrase” against Native American tribes in the Northwest Territory in the 1790s. See William Hall, Saikrishna Bangalore Prakash, The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95, 107 Va. L. Rev. 119 (2021). ") The War of 1812 had its roots in the British Navy’s impressment of American sailors, disputes over trade, American westward expansion, and Native American policy.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn2art1 " See Introduction, War of 1812 Resource Guide, Library of Congress, >https://guides.loc.gov/war-of-1812 (last visited Sept. 10, 2024); David Barron, Waging War 84–85 (2016). ") In Brown v. United States, the Supreme Court considered whether the declaration of war against Great Britain created authority for the United States to condemn a cargo of timber in route to Great Britain.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn3art1 " Brown v. United States, 12 U.S. (8 Cranch) 110, 122 (1814). ") Congress had not passed a statute authorizing confiscation of enemy property, but the United States argued that, after the declaration of war, the executive branch had the power to “execut[e] the laws of war,” which permit condemnation.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn4art1 " Id. at 128. ") In an opinion by Chief Justice John Marshall, the Supreme Court rejected this view, holding that only the legislative branch has the power of confiscating enemy property in wartime, and therefore Congress must enact legislation authorizing condemnation.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn5art1 " Id. at 129. ")

The United States’ next declaration of war came in the Mexican War (also called the Mexican-American war),[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn6art1 " An Act Providing of the Prosecution of the Existing War Between the United States and the Republic of Mexico, 9 Stat. 9 (May 13, 1846). ") which arose in the 1840s from a dispute over the United States’ annexation of Texas.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn7art1 " Introduction, Mexican War: A Resource Guide, Library of Congress, >https://guides.loc.gov/mexican-war (last visited Sept. 10, 2024); The Annexation of Texas, the Mexican-American War, and the Treaty of Guadalupe-Hidalgo, U.S. Dep’t of State: Office of the Historian, >https://history.state.gov/milestones/1830-1860/texas-annexation (last visited Sept. 10, 2024). ") The United States placed portions of Mexico under military occupation during this conflict, which led to questions of how U.S. law would apply in American-occupied portions of Mexico. In Fleming v. Page, an importer of commercial goods argued that a statute imposing tariffs on imports from a “foreign country” did not apply to goods shipped from a U.S.-occupied port in Mexico.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn8art1 " 50 U.S. (9 How.) 603, 614 (1850). ") The Supreme Court declined to adopt this interpretation, reasoning that, while the port was governed by U.S. military authorities, it did not become part of the United States or cease to be a foreign country.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn9art1 " Id. ")

In reaching its conclusion, the Fleming Court rejected the view that the President possesses broad authority to conquer territory akin to a British Monarch, stating

[T]here is a such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that, it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn10art1 " Id. at 618. ")

The Court instead described presidential power as “purely military.” [11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn11art1 " Id. at 615. ") Presidents are “authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual[,]” but their conquests cannot enlarge the boundaries of the United States or extend operation of U.S. law beyond its borders.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn12art1 " Id. ")

Some aspects of the War of 1812 and the Mexican War raised constitutional questions that were not addressed in the Supreme Court. For example, after imposing martial law and suspending habeas corpus in New Orleans at the end of the War of 1812,[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn13art1 " 3 The Papers of Andrew Jackson 205 (Harold D. Moser ed. 1991). For background on martial law under the Constitution, see . ") then-General Andrew Jackson ordered the imprisonment of a newspaper editorialist who criticized Jackson’s actions and a federal judge who granted the editor’s petition for a writ of habeas.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn14art1 " See 3 The Papers of Andrew Jackson, supra note 13, at 298–99; Louis Fisher, Military Commissions: Problems of Authority and Practice, 24 B.U. Int’l L.J. 15, 21 (2006); Matthew Warshauer, Andrew Jackson and the Battle of New Orleans, in A Companion to the Era of Andrew Jackson 35–39 (2006). ") The editorialist was acquitted of wrongdoing in a military trial, and the judge, who was never tried, returned to the bench after news that the United States concluded a peace treaty with Great Britain reached New Orleans.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn15art1 " See 3 The Papers of Andrew Jackson, supra note 13, at 298–99, Louis Fisher, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism 26–28 (2005). ") The judge eventually tried Jackson for contempt of court, after which Jackson was found guilty and paid a $1,000 fine.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn16art1 " See 3 The Papers of Andrew Jackson, supra note 13, at 340–43. ") Decades later, after Jackson had served as President, Congress passed legislation reimbursing him for the fine.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn17art1 " 5 Stat. 651 (1844). ")

In the Mexican War, the United States used military commissions, then known as “councils of war,” extensively to prosecute offenses by and against U.S. soldiers in occupied Mexico.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn18art1 " See David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5, 36–37 (2005). ") Some U.S. military officials questioned whether congressional legislation was necessary to give the executive branch authority to establish the military commissions, but Congress declined to provide new legislative authority.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn19art1 " See, e.g., Letter from U.S. Sec’y of War, W. L. Marcy to General Winfield Scott (Feb. 15, 1863), in H. Exec. Doc. No. 56, 30th Cong., 1st Sess. 64 (1848) ( “I have had a conversation on [military commissions] with the chairman of the committee of the Senate, and understand from him that he did not consider legislation necessary, as the right to punish in such cases necessarily resulted from the condition of things when an army is prosecuting hostilities in an enemy’s country.” ). ") Both the writ of habeas corpus and military commissions would become a topic of several Supreme Court cases in later conflicts.[20](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/war-of-1812-mexican-war-and-war-powers#fn20art1 " See ; . ")

Footnotes

1

Act of June 18, 1812, ch. 102, 2 Stat. 755 . Some scholars argue that Congress first “exercised its power to declare war and did, in fact, declare war, albeit without using that phrase” against Native American tribes in the Northwest Territory in the 1790s. See William Hall, Saikrishna Bangalore Prakash, The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95, 107 Va. L. Rev. 119 (2021).

2

See Introduction, War of 1812 Resource Guide, Library of Congress, >https://guides.loc.gov/war-of-1812 (last visited Sept. 10, 2024); David Barron, Waging War 84–85 (2016).

3

Brown v. United States, 12 U.S. (8 Cranch) 110 , 122 (1814).

4

Id. at 128.

5

Id. at 129.

6

An Act Providing of the Prosecution of the Existing War Between the United States and the Republic of Mexico, 9 Stat. 9 (May 13, 1846).

7

Introduction, Mexican War: A Resource Guide, Library of Congress, >https://guides.loc.gov/mexican-war (last visited Sept. 10, 2024); The Annexation of Texas, the Mexican-American War, and the Treaty of Guadalupe-Hidalgo, U.S. Dep’t of State: Office of the Historian, [>https://history.state.gov/milestones/1830-1860/texas-annexation](htt