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Article I, section 8 of the U.S. Constitution grants Congress the power to tax and spend for the common defense, to declare war, to raise and support armies and a navy, and to make rules for the government of such forces. The Constitution (Article II, section 2) makes the president commander in chief and gives him or her the power to make treaties and appoint ambassadors with the advice and consent of the Senate. Although Congress has the power to declare war, from the nation’s beginnings, presidents have claimed the authority to place military troops abroad and to wage war. The United States has been involved in only five declared wars: the War of 1812, the Mexican-American War (1846-1848), the Spanish-American War (1898), World War I (1917-1918), and World War II (1941-1945). Of those, only the War of 1812 was actively debated by Congress before a formal declaration of war was made. Nevertheless, military troops have been deployed more than two hundred times in various military actions abroad.

It has been said that the laws are no more and no less than what the courts will enforce. The Supreme Court has often avoided deciding a case on any ground that touches constitutional issues. Though vested with the power to interpret the law and the U.S. Constitution, the federal courts confront issues of national security under significant procedural restraints. Some of these are described in the Constitution itself, while others have developed out of political and administrative necessity. Taken together, they contributed to the lack of precise boundaries between the executive and legislative branches in the distribution of foreign policy powers.

Wartime seizure power may be directed at both foreign and domestic property. Although substantial resources are available to redirect the nation’s economy in support of armed conflict or national defense, Congress passed a number of statutes penalizing private businesses or persons for failure to cooperate. The most important provisions are in the Trading with the Enemy Act (1917), the Selective Service Act (1940), the Atomic Energy Act (1946), and the Defense Production Act (1950). Both Presidents Trump and Biden invoked the Defense Production Act to increase the manufacture of critical medical supplies during the COVID-19 pandemic beginning in 2020.