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1. When it comes to foreign affairs, the president has a great deal of power to set objectives,

manipulate troops, and order specific actions, but the president is not necessarily without

obstacles when it comes to making use of executive power in foreign affairs. The president is

facilitated in his war making powers by several factors and hindered by several others.

At the outset of a war, public opinion is typically overwhelmingly in support of the war

and the president himself. This gives the president several advantages in utilizing executive

power at this time. Firstly, this positive public opinion gives Congress an incentive to support the

president’s war-making efforts rather than hindering them. Recruitment and economic support of

wars is also at its peak when public opinion of the war is high, as it typically is at the start of a

war. According to Polsky, Lincoln’s governors had no problem finding willing volunteers at the

outset of the war when Lincoln made decrees requesting that soldiers be trained and armed, due

to a combination of an economic slump and the patriotism that the start of a war inspires in the

public. The accepted view of wartime as a “state of exception” also facilitates the president’s use

of executive power, allowing him to circumvent parts of the Constitution (including due process

and freedom of speech stipulations) to reach war objectives more effectively. The 1918 seizure

of the railroads with the support of Congress and the Courts in World War I (as described by

Polsky) demonstrates the flexibility granted to the president in wartime. Finally, the use of

presidential war powers is facilitated by the president’s reliance on generals. According to

Polsky, both Lincoln and Wilson relied on the expertise of their generals (although Lincoln was

significantly more hands-on than Wilson) to inform their war-time actions. Both set broad

strategic goals and allowed generals with military experience to execute them, and by

empowering a larger set of people the president was able to have more influence on the course of

the war.
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Several obstacles prevent presidents from attaining carte blanche when it comes to

matters of war. Just as public opinion can be a boon, it also presents a significant obstacle as the

war goes on. Public opinion of a war near universally falls as the war goes on, and presidents risk

electoral defeat and repudiation by Congress if they do not manage public opinion of the war

successfully. Thus, presidents do not have an unlimited amount of time with which to conduct

their wars, because public opinion will eventually make their position untenable. Additionally,

politics plays a major role in wartime actions. According to Polsky, Polk alienated large groups

of people by using military appointments during the Mexican-American War as another means

of Democratic patronage, and during the Civil War Lincoln made a concerted effort to make

“politically inclusive” appointments to general roles. Furthermore, it is essential for presidents to

maintain support for war efforts among diverse and often conflicting coalitions, so strategically-

sound decisions may nonetheless be politically dangerous. Finally, it is possible for domestic

courts and Congress to strike down executive orders during wartime, often stymying presidential

war efforts and presenting a constraint on presidential power. Congress holds “the power of the

purse,” and may rescind funding from presidential war efforts if it so chooses. The courts have

also interfered in the past in the Sawyer case (known as the Steel Seizure case), where President

Truman’s attempt to exercise presidential powers during the Korean War was repudiated by the

court.

The president did not always wield such significant war-making power, but over time

Congress has delegated significant amounts of power to the president. The reason for this is that

wars essentially never end popularly, but typically start out popular among the public. The result

is a sort of Catch-22 for elected officials, in which to explicitly vote against a war at the outset is

politically risky, but to have voted for the war when it’s no longer popular is also similarly
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dangerous. Thus, Congress has delegated significant war-making powers to the president so that

they do not have to risk electoral defeat due to war matters. Additionally, the president can act

more decisively than Congress, which can be valuable in emergencies and presents an alternate

reason why Congress has delegated war-making powers to the president. The results of this

decision are not necessarily positive. Congress has essentially lost oversight over presidential

war-making, as laws such as the War Powers Act which attempt to regulate the president have

easily usable loopholes. The president has also been left with a “blank check” of sorts in the form

of the AUMF which grants unlimited and undefined powers of war-making to the president. This

has cleared the way for such Constitutional rights infringements as the expanded surveillance

state and indefinite detention of “enemy combatants”. The final result of Congress’s delegation is

the permanent “state of exception” which now exists; the War on Terror is now used as an

excuse for the president’s permanent authorization to use any force deemed necessary.
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2. The circumstances of a war as well as pre-war sentiment toward various groups generally

predict whether certain civil rights will be restricted or expanded, and whose rights will be the

target. According to Graber, rights are expanded in wartime for various reasons; the group

targeted for an increase in rights may be an essential military or economic resource, or the nature

of the conflict may be one which is being justified through an emphasis on the US’s superior

record of civil rights and inclusivity and thus the government may have a stake in demonstrating

inclusivity. In the case that rights are expanded, the beneficiaries are nearly always groups which

are not ethnically or ideologically tied to the enemy in any way. On the other hand, the

restriction of civil liberties can occur when the targeted group is ideologically or ethnically tied

to the enemy, pre-existing prejudices about that group allow for ill treatment, or political actors

were already inclined to reduce specific civil liberties before wartime.

The subject of Japanese internment camps during World War II is one of the clearest

examples of a restriction on civil liberties during wartime. FDR made a series of Executive

Orders which established curfews, exclusion zones, and internment camps for people of Japanese

descent living in the US, including American citizens. These executive orders were then upheld

by the Supreme Court in Korematsu v. United States, in an opinion which directly cites the need

to attend to national security concerns in wartime as part of its reasoning. The internment of

Japanese-Americans was certainly impacted by pre-existing anti-Asian sentiment on the West

Coast, as well as the ethnic link between Japanese-Americans and the Japanese who were the

enemy in World War II. The Alien and Sedition Acts of 1798 served to restrict citizenship, allow

for greater freedom in deporting those non-citizens sympathetic to enemy forces, and restrict

speech which is critical of the government, constituting a major restriction on freedom of speech.

These bills were passed by Congress and signed by President John Adams. The Alien and
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Sedition Acts constitute a wartime restriction of civil liberties because, during this time, the US

was engaged in hostilities with France. The Acts were designed to target dissidents and

supporters of France and the Democratic-Republicans and were signed to attempt to shift the

political balance in favor of the Federalists. Public support for the war was shaky at best and the

status of the United States as a relatively new, weak nation meant that an unsupported war would

be disastrous. The ongoing War on Terror and the prevalence of indefinite detention is the last

example of restriction of civil liberties during wartime. Both Congress and the executive branch

have had a hand in the perpetuation of prisoner abuses and indefinite detention; Congress had

oversight over Abu Ghraib, a detention facility in Iraq notorious for prisoner abuses. Other

facilities could remain open due to the judiciary’s acceptance of their status in an “active theater

of war”. Most notoriously, Guantanamo Bay still holds prisoners with no scheduled release date,

even those who had already been cleared of wrongdoing, and is influenced by the president and

the Justice Department. The continuance of these restrictions on civil liberties can be partially

attributed to the prisoners’ ethnic links to the perceived enemy in the War on Terror.

The issue of whether all citizens were required to salute the flag and recite the pledge of

allegiance was one which was settled because of wartime considerations. According to Graber, a

pre-war atmosphere that lent itself to a distrust of those who refused to engage in displays of

patriotism (such as Jehovah’s Witnesses) led to the case of Minersville School Dist. v. Gobitis,

which declared that it was constitutional to require individuals to salute the flag despite religious

objections. However, the circumstances of the war that followed (WWII) led to the overturning

of Gobitis and the establishment of new protections for the religious freedom of Jehovah’s

Witnesses and others who would choose not to salute the flag. First, Congress, concerned about

potential comparisons between American patriotic rituals and the Nazi salute, passed a law
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which regulated displays of patriotism, which included a provision that citizens need only stand

at attention rather than saluting the flag. Then, the executive branch declared that this preempted

all state and local laws requiring students to salute the flag. Finally, the Supreme Court

overturned the Gobitis decision in West Virginia State Board of Education v. Barnette, citing in

the majority opinion a desire to distinguish the US from the totalitarian practices of the enemy,

thereby establishing a constitutional right to abstain from saluting the flag. The right to an 8-hour

workday was another civil right which was expanded in wartime, during WWI. According to

Graber, the possibility that railroad workers could strike at the onset of a war in Europe posed a

great enough risk to national security, at least in the eyes of President Wilson and Congress, that

drastic measures had to be taken to prevent major stoppages. Congress passed the Adamson Act

mandating an eight-hour work day, and President Wilson pressured the management of

important industries to enforce the eight-hour work day even if the act were to be declared

unconstitutional. The Supreme Court then reinforced this expansion of civil liberties by

upholding the Adamson Act. The working population was a particularly vital resource at the

onset of WWI, so it was able to attain expansions of its civil rights which would have been more

difficult to reach in peacetime. Finally, women’s rights expanded during World War I and II.

When men were sent off to war, there was a sudden dearth of eligible workers on the domestic

scale, so women were given access to jobs and opportunities previously denied to them. Women

were also allowed to volunteer for military positions, and social movements ensured they were

paid the same as men for similar jobs. These advancements were typically lost after wars, when

men returned home and expected their jobs back. Women were well-placed for this type of civil

rights expansion because they were already widely perceived as just as loyal to the US as

American men, and therefore a good substitute in roles men could no longer fill.