Street Law, Inc. and The Supreme Court Historical Society present

Landmark Cases of the U.S. Supreme Court

Street Law /

Presidential Powers in Wartime (••/•••)

Introduction

The delegates to the 1787 Constitutional Convention were very concerned about the balance of power in the government they sought to create.  In the office of presidency, they were worried from past experience with England’s king that a single person at the head of government would take too much power and become a tyrant.  However, they were also aware that legislatures with too much power could also be oppressive.  Thus, they sought to divide power between the branches, so that no one had too much, and they incorporated a system of limits on each branch of government by the others.  Thus, explained James Madison in Federalist 51, "Ambition must be made to counteract ambition."

Directions

Since the ratification of the U.S. Constitution, there have been many battles between the branches of government over the scope of their respective powers.  One such battle concerns the power to conduct war.  The activity below will help you understand how the Framers of the U.S. Constitution dealt with the question of who should have this power in government. 

  1. Using the Chart: Advantages and Disadvantages of Location of War Powers, brainstorm some advantages and disadvantages of having the power to conduct war held exclusively by one branch of government, or in sharing that power.
  2. As a whole class, share your ideas with one another by creating a chart for the entire class either on the board or on a large piece of paper.  Do the advantages and disadvantages seem to favor giving more power to the president, or to the legislature, or for shared power?
  3. Examine the excerpts from the U.S. Constitution regarding the powers of the president and legislature in war and answer these questions:
    • List the powers that the U.S. Constitution gives to the Congress.
    • List the powers that the U.S. Constitution gives to the president.
    • Which branch appears to have more war powers, in terms of number?
    • Which branch appears to have more dominance with its war powers?  In other words, does one branch appear to have more important war powers than the other?  Explain.
    • Without mentioning every single power, how would you summarize the way that the Framers divided the war powers between the two branches?
    • In your opinion, did the Framers divide the power well?  Why or why not?
  4. While the U.S. Constitution may appear clear in the way it divides power, in practice, there have been questions over whether presidential actions in wartime were constitutional. Your teacher will divide the class into three groups and assign you the number 1, 2, or 3.  Read the situation corresponding to your number on the Should the President have this Power in Wartime? handout. Appoint a recorder and reporter and discuss whether the president should have the power in wartime to do as he did.  The recorder should write the arguments from the discussion.  After your discussion, read the Supreme Court’s decisions.
  5. The reporter from each group then explains to the class as a whole the arguments that the group formulated regarding the use of presidential power in the situation.  The reporter should also explain how the Supreme Court decided the case.

For homework, or class work, students should complete the Questions about Presidential Power in Wartime handout.  These could be discussed as a class or submitted to the teacher for feedback.

< Korematsu v. United States