7.2 War, Foreign Affairs, Civil Rights Enforcement & Other Congressional Powers
Key Takeaways
- Congress's war and defense powers include declaring war, raising and supporting armies, regulating the armed forces, and punishing offenses against the law of nations, and courts give heavy deference to military judgments (Rostker v. Goldberg).
- A valid treaty can support implementing legislation Congress could not otherwise enact (Missouri v. Holland), but neither treaties nor executive agreements may violate the Constitution (Reid v. Covert).
- Section 2 of the Thirteenth Amendment lets Congress reach private racial discrimination that it rationally determines is a badge or incident of slavery (Jones v. Alfred H. Mayer Co.), with no state action requirement.
- Section 5 of the Fourteenth Amendment authorizes remedial and preventive legislation against state action that is congruent and proportional to constitutional violations (City of Boerne), but not legislation that redefines rights or targets purely private conduct (United States v. Morrison).
- Other powers include plenary control over federal property and immigration, uniform bankruptcy and naturalization laws, limited-term copyrights and patents, and an implied power to investigate in aid of legislation.
7.2 War, Foreign Affairs, Civil Rights Enforcement & Other Congressional Powers
Beyond commerce, taxing, and spending, NCBE's outline tests Congress's war, defense, and foreign affairs powers, its power to enforce the Thirteenth and Fourteenth Amendments, and its other enumerated powers. Questions often ask whether a civil rights statute can reach private conduct and, if so, under which provision.
War and Defense Powers (Art. I, § 8, cls. 11–16)
Congress possesses the exclusive constitutional power to declare war, raise and support armies, maintain a navy, and make rules for the government and regulation of land and naval forces. During wartime and post-war demobilization, Congress's war powers extend broadly to domestic economic controls, including civilian price controls, rent caps, rationing, and labor regulation (Woods v. Cloyd W. Miller Co.).
Other Enumerated Powers
- Bankruptcy (Art. I, § 8, cl. 4): Power to establish uniform laws on the subject of bankruptcies throughout the United States.
- Naturalization & Immigration (Art. I, § 8, cl. 4): Plenary authority over alien admission, exclusion, and citizenship naturalization.
- Copyright and Patent (Art. I, § 8, cl. 8): Power to secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Extending existing copyright terms was upheld in Eldred v. Ashcroft (2003).
More on War, Defense, and Foreign Affairs
- Raising armies: Congress may draft citizens into military service (Selective Draft Law Cases, 1918), but no appropriation to raise and support armies may run longer than two years (Art. I, § 8, cl. 12).
- Military deference: Courts give great deference to Congress's judgments about military affairs; for example, male-only draft registration was upheld in Rostker v. Goldberg (1981).
- Military courts: Congress may subject service members to courts-martial, but civilians—including civilian dependents of service members abroad in peacetime—may not be tried by court-martial for capital crimes (Reid v. Covert, 1957).
- Treaties and implementing legislation: A statute implementing a valid treaty may regulate matters that Congress could not otherwise reach (Missouri v. Holland, 1920). Treaties and executive agreements, however, cannot authorize action the Constitution forbids (Reid v. Covert).
- Foreign commerce: Congress's power to regulate commerce with foreign nations is plenary, and states may not impose duties on imports or exports without its consent (Art. I, § 10, cl. 2).
- War Powers Resolution (1973): The President must report to Congress within 48 hours after introducing armed forces into hostilities and must end the use of forces within 60 days (with a 30-day withdrawal period) unless Congress authorizes it. The Supreme Court has never ruled on the Resolution's constitutionality.
- Habeas corpus: The writ may be suspended only "when in Cases of Rebellion or Invasion the public Safety may require it" (Art. I, § 9, cl. 2). Noncitizens detained at Guantanamo Bay are entitled to habeas review or an adequate substitute (Boumediene v. Bush, 2008).
Enforcing the Thirteenth, Fourteenth, and Fifteenth Amendments
| Provision | Reach | Standard | Leading Cases |
|---|---|---|---|
| Thirteenth Amendment, § 2 | Private and government conduct | Congress may rationally determine what are badges and incidents of slavery | Jones v. Alfred H. Mayer Co. (1968) (private refusals to sell property, 42 U.S.C. § 1982); Runyon v. McCrary (1976) (private schools, § 1981) |
| Fourteenth Amendment, § 5 | State action only | Remedial or preventive legislation must be congruent and proportional to the constitutional injury | City of Boerne v. Flores (1997); United States v. Morrison (2000); Nevada Department of Human Resources v. Hibbs (2003); Tennessee v. Lane (2004) |
| Fifteenth Amendment, § 2 | Race discrimination in voting | Appropriate legislation, judged in light of current conditions | South Carolina v. Katzenbach (1966); Shelby County v. Holder (2013) |
Key Points
- Remedy, not redefinition: Under Section 5, Congress may enact prophylactic legislation that prohibits some constitutional conduct to prevent or remedy violations, but it may not change the substance of the right. In City of Boerne, the Religious Freedom Restoration Act was invalid as applied to states and localities because it effectively rewrote the Free Exercise standard the Court adopted in Employment Division v. Smith. RFRA still applies to the federal government.
- No private-conduct regulation under Section 5: The civil damages remedy of the Violence Against Women Act was invalid under Section 5 because it targeted private actors rather than state action (Morrison).
- Voting rights: Congress may ban literacy tests and require federal preclearance of voting changes where justified (South Carolina v. Katzenbach; Katzenbach v. Morgan, 1966). In Shelby County, however, the Voting Rights Act's coverage formula was struck down because it relied on decades-old data that no longer justified treating some states differently.
- Section 3 disqualification: States may not enforce Section 3 of the Fourteenth Amendment against federal officeholders or candidates; that responsibility rests with Congress under Section 5 (Trump v. Anderson, 2024).
Choosing the Right Source of Power
When a federal civil rights statute is challenged, test each possible source in turn:
- Is the defendant a private person? Section 5 of the Fourteenth Amendment will not support the statute, because that amendment reaches only state action. Look to the Thirteenth Amendment (for racial discrimination that Congress can treat as a badge or incident of slavery) or to the commerce power (for discrimination by businesses that affect interstate commerce, as in Heart of Atlanta Motel).
- Is the defendant a state or local government? Section 5 can support the statute if it is congruent and proportional to a documented pattern of constitutional violations. The stronger the constitutional protection for the affected group or right, the easier this is: laws protecting against sex discrimination (Hibbs) and denial of access to courts (Lane) survived, while laws protecting against age and disability discrimination in employment (Kimel; Garrett) did not support damages suits against states.
- Does the statute authorize damages against a state? Even if the commerce power supports the substantive rule, Congress generally cannot use Article I to abrogate state sovereign immunity (Seminole Tribe), so private damages suits against the state may depend on a valid Section 5 basis (see Section 6.1).
- Does the statute concern voting? Section 2 of the Fifteenth Amendment, together with Section 5 of the Fourteenth, supports voting-rights legislation, but burdens that treat some states differently must be justified by current conditions (Shelby County).
For example, a federal law making private employers liable for firing workers because of race is best supported by the commerce power. The same law applied to state employers is supported by Section 5 as well, which matters if the employee seeks damages from the state treasury.
Other Powers of Congress
| Power | Scope | Examples and Limits |
|---|---|---|
| Property Clause (Art. IV, § 3, cl. 2) | Plenary power over federal lands and property | Protecting wild horses and burros on public lands (Kleppe v. New Mexico, 1976); disposing of federal property |
| Naturalization and immigration (Art. I, § 8, cl. 4) | Uniform rule of naturalization; broad power over admission and removal of noncitizens | Great deference to immigration classifications (Trump v. Hawaii, 2018); Congress may not involuntarily strip a citizen of citizenship (Afroyim v. Rusk, 1967) |
| Bankruptcy (Art. I, § 8, cl. 4) | Uniform laws on bankruptcies | A fee increase applied differently among judicial districts violated the uniformity requirement (Siegel v. Fitzgerald, 2022) |
| Postal, coinage, and borrowing (Art. I, § 8, cls. 2, 5, 7) | Establish post offices, coin money, borrow on the credit of the United States | Supports federal postal crimes, currency laws, and debt obligations |
| Indian affairs | Broad power to legislate regarding Indian tribes | Upholding the Indian Child Welfare Act against Article I challenges (Haaland v. Brackeen, 2023) |
| Investigation (implied) | Compel testimony and documents in aid of a valid legislative purpose | McGrain v. Daugherty (1927); subpoenas for a President's personal information require special care for separation of powers (Trump v. Mazars USA, LLP, 2020) |
The United States negotiated and ratified a bilateral international treaty with a foreign nation providing that citizens of the foreign nation residing in the United States would be entirely exempt from any federal excise taxes on imported cultural art objects. Two years later, facing significant budget deficits, Congress enacted the 'Cultural Import Tariff Act,' an internal revenue statute explicitly imposing a 15% excise tax on all imported cultural art objects from all nations, expressly stating that 'this tax shall apply to all residents and foreign nationals notwithstanding the provisions of any prior international agreement or treaty.' A citizen of the foreign nation residing in the United States imported a cultural sculpture and refused to pay the tax, relying on the treaty exemption. Does the federal statutory tax apply to the foreign citizen?
After the Supreme Court held that neutral, generally applicable laws that incidentally burden religious practice do not violate the Free Exercise Clause, Congress enacted a statute requiring state and local governments to satisfy strict scrutiny whenever they substantially burden a person's religious exercise, even through neutral and generally applicable laws. Congress relied solely on Section 5 of the Fourteenth Amendment and made no findings of widespread religious discrimination by states. A city denied a church a permit to expand under a neutral historic-preservation ordinance, and the church sued under the statute. The city argues that the statute is unconstitutional as applied to it. How should the court rule?
Congress enacted a statute, citing Section 2 of the Thirteenth Amendment, that prohibits any private person from refusing to sell or rent residential property to another person because of race. A homeowner who refused to sell his house to a buyer because of the buyer's race was sued under the statute. He argues that the statute is unconstitutional because his conduct involved no state action and his single sale had no effect on interstate commerce. How should the court rule?