67 U.S. 635, (1863)
Facts. In April 1861 President Lincoln declared a blockade of southern ports. Congress did not recognize a state of war until July 13. During that interval of almost three months, the Union Navy captured a number of merchant vessels, and those seizures were challenged in court on the basis that Lincoln had exceeded his constitutional authority. The owners of the ships and cargo appealed. In 1861, Congress approved, legalized and made valid all acts, proclamations and orders of the President as if they had been done under the previous express authority and direction of the Congress.
Issue. Did the President have the authority to institute a blockade of southern ports?
Held. Justice Grier. Yes. By the Acts of Congress of 1795 and 1807, the President is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a state or of the United States. Even if it was necessary to get Congressional sanction for the existence of war, Congress did approve of the President’s actions by the Acts they passed in 1861, which allowed the government to prosecute the war with vigor and efficiency. Therefore even if he needed Congress to ratify his actions, they did so and therefore cured any defect.
Dissent. Justices Nelson, Catron, Clifford and Chief Justice Taney dissenting. The Acts of 1795 and 1807 did not and could not confer on the President the power of declaring war against a state. When Congress declares war, ordinary citizens convert into public enemies and are treated accordingly. This great power over the business and property of the citizen is preserved to Congress by the United States Constitution. It cannot be delegated or surrendered to the Executive. Until Congress declares war, then no citizen of the State can be punished in his person or property unless he has committed some offense against a law of Congress passed before the act was committed which made his act a crime. The Congressional ratification of the seizures was an ex post facto law and hence invalid.
Discussion. The majority opinion held that the President could resist an attack by a foreign nation. The fact that the attack in this case came from an internal part of the Union rather than from a foreign power does not eliminate the President’s power to take action.