National Security

As before, the executive branch also sacrificed civil liberties to the war effort. In February of 1942, an official War Department memo expressed alarm that "112,000 potential enemies of Japanese extraction are at large today," and reasoned that the absence of any sabotage to date "is a disturbing and confirming indication that such action will be taken." Within two months, the Roosevelt administration declared the entire West Coast a military area, evacuated and detained 112,000 Japanese Americans, and held them in "relocation centers" for the duration of the war. About 70,000 of the detainees were U.S. citizens. A legal challenge against the internment in Korematsu v. United States (1943) failed. Extreme measures by the government, the Court held, were justified in wartime by the compelling interest in maintaining national security.

During the Cold War era, presidential power grew. Presidents Harry Truman and Lyndon Johnson sent U.S. troops to Korea and Vietnam without a congressional declaration of war. Known euphemistically as police actions, these deployments, at least initially, brought no objection from Congress. Politicians of the era commonly accepted the premise that the national defense depended upon stopping Communist expansion around the globe. Leaving this up to the president, Congress concerned itself with fighting "the Red menace" at home, investigating alleged Communist infiltration of the government, army, and entertainment industries. Besides asserting the power to wage war, the executive branch issued sweeping orders. The Constitution does not define the extent of the power to issue a so-called "executive order," which is remarkably similar to legislation. In 1952, however, it was tested when President Truman seized the nation's private steel mills in order to prevent an imminent labor strike from harming the Korean War effort. The steel industry succeeded in stopping this takeover in Youngstown Sheet & Tube Co. v. Sawyer (1952), which the Supreme Court, in one of its few intrusions into the national security area, held unconstitutional. Finding that the president had usurped lawmakers' role, Justice Hugo Black's opinion insisted that the executive branch must observe the separation of powers.

The Vietnam War eventually produced a backlash against presidential power. Despite promises by President Richard Nixon to end the unpopular war, hostilities continued, casualties increased in number, and the United States expanded fighting into Cambodia. At home, social upheaval accompanied legal challenges to the president's war effort. Some lawsuits claimed that the war was unconstitutional because Congress had not declared it. The Supreme Court rejected these arguments. DaCosta v. Laird (1973) upheld military conscription, and in Holtzman v. Schlesinger (1973), a suit brought by members of Congress, the Court rejected their challenge to the president's right to wage undeclared war by noting a long history of the very practice and concluding that Congress had the legislative power to resist presidential actions.

But the justices ruled differently in a major civil liberties case. The lawsuit in New York Times Company v. United States (1971) began when the White House tried to stop publication of government war documents by the Times and the Washington Post. This was a 7,000-page classified study on the Vietnam War through 1968, popularly called the "Pentagon Papers". The newspapers claimed the government's censorship violated the First Amendment. Claiming national security interests, the Nixon administration said publication would hurt the nation militarily and prolong the war. The Supreme Court rejected this argument and allowed publication, but only in a sharply divided manner that included nine separate opinions. While varying in their reasons, the majority would not permit the government to curtail speech rights before material was even published, an unconstitutional abridgment known as prior restraint. The decision marked an historical watershed in limiting the government's power to put its definition of national security above the First Amendment.