The Sweeping Domestic War Powers of Congress

61 Pages Posted: 24 Oct 2016

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Date Written: June 2015


With the Habeas Clause standing as a curious exception, the Constitution seems mysteriously mute regarding federal authority during invasions and rebellions.

In truth, the Constitution speaks volumes about these domestic wars. The inability to perceive the contours of the domestic wartime Constitution stems, in part, from unfamiliarity with the multifarious emergency legislation enacted during the Revolutionary War. During that war, state and national legislatures authorized the seizure of property, military trial of civilians, and temporary dictatorships. Ratified against the backdrop of these fairly recent wartime measures, the Constitution, via the Necessary and Proper Clause and other provisions, rather clearly augmented federal legislative power to prevail in domestic wars. The “Sweeping Clause” grants Congress far-reaching authority to carry federal powers—legislative, executive, and judicial—into execution.

Using this authority, Congress may suspend the ordinary forms of government and some civil liberties as a means of implementing federal powers.

For example, Congress may suspend the privilege of the writ of habeas corpus or authorize military trial of civilians if it supposes that such measures will help ensure that federal authority extends throughout the United States. Hence Congress has something of a domestic wartime power that permits it to enact laws meant to defeat rebels and invaders and thereby ensure the continuity of the Constitution and the federal and state governments that sustain it.

Keywords: Congressional Authority, Sweeping Clause, Habeas Corpus. Separation of Powers, Domestic War Powers

Suggested Citation

Prakash, Saikrishna, The Sweeping Domestic War Powers of Congress (June 2015). Michigan Law Review, Vol. 113, No. 1337, 2015, Available at SSRN: or

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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