Page 15
commander can seize private housing to shelter his troops. Not so, however, in the United States,
for the Third Amendment says, "No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
Thus, even in war time, his seizure of needed military housing must be authorized by Congress.
It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions. . . ." Such a limitation on the command
power, written at a time when the militia rather than a standing army was contemplated as the
military weapon of the Republic, underscores the Constitution's policy that Congress, not the
Executive, should control utilization of the war power as an instrument of domestic policy.
Congress, fulfilling that function, has authorized the President to use the army to enforce certain
civil rights. On the other hand, Congress has forbidden him to use the army for the purpose of
executing general laws except when expressly authorized by the Constitution or by Act of
Congress. [Ibid. at 64345.]
The appeal, however, that we declare the existence of inherent powers ex necessitate to
meet an emergency asks us to do what many think would be wise, although it is something the
forefathers omitted. They knew what emergencies were, knew the pressures they engender
for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may
also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside
from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion,
when the public safety may require it, they made no express provision for exercise of
extraordinary authority because of a crisis. I do not think we rightfully may so amend their work,