National Security (Spring 2013)
Judge Whitney
I. The Framework of National Security Law
a. National Security Law: The Constitution and the Basics…
i. Art. I
1. Section 8
a. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
b. To borrow Money on the credit of the United States;
c. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
d. To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
e. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
f. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
g. To establish Post Offices and post Roads;
h. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
i. To constitute Tribunals inferior to the supreme Court;
j. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
k. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
l. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
m. To provide and maintain a Navy;
n. To make Rules for the Government and Regulation of the land and naval Forces;
o. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
p. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
q. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
r. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
2. Section 9
a. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
b. No Bill of Attainder or ex post facto Law shall be passed.
c. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
d. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
3. Section 10
a. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
b. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
ii. Art. II
1. Section 1
a. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
b. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
c. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
2. Section 3
a. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
iii. Art. III
1. Section 2
a. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
i. Amendment XI: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
b. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
2. Section 3
a. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
b. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
iv. Art. IV
1. Section 4
a. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
v. Amendment III
1. 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.”
vi. Amendment V
1. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger
vii. Art. 1 and 2 assign overlapping functions
viii. The text is general, vague, and not precise
ix. The text fails to prescribe or allocate power over some important areas of national security
x. Locke recognized the importance of balancing and mixing powers when he conceded that many things must be left to executive discretion, subject to nullification or modification by legislation
xi. There was no consensus among the theorists about whether a declaration was necessary to initiate war, though no one argued that a declaration was required to wage a defensive war
xii. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)
1. Generally believed to be the most important decision the Court has handed down in a separation-of powers case, especially Justice Jackson’s concurrence.
2. Background: Following a protracted labor struggle, the United Steelworkers of America decide to go on strike in April 1952, in the midst of the Korean War. Pres. Truman issued an Executive Order (pp. 26-27) ordering Sawyer to seize the steel mills and to operate them under the auspices of the federal government. Truman notified Congress, which took no action. Companies sued challenging the seizure of the mills.
3. Case produces seven opinions—one from each of the Justices in the majority (striking down the seizure), and one from the three dissenters:
4. There was no Congressional Authorization
5. When the Taft-Hartley Act was argued in Congress, Congress had explicitly rejected including an amendment allowing the resolution of labor disputes in such a manner
6. Presidential action may be authorized by constitutional text
a. This does not fall under the President’s power as Commander in Chief
b. The president enforces laws, doesn’t make law. He can recommend laws.
7. Frankfurter, J. concurring
8. Look to what Congress speaks of, and although not included in the legislation, if Congr
ed by Dames & Moore in breach-of-contract action against Iranian company. Dames & Moore sues Sec’y of Treasury, arguing that President Carter exceeded his statutory and constitutional authority in so acting.
Holding: For 8-1 Court, Rehnquist, J., holds that Carter acted lawfully under Jackson’s Youngstown approach…
2. Congress did not authorize this action but it is still ok.
3. “Concluding that neither the IEEPA nor the Hostage Act constitutes specific authorization of the President's action suspending claims, however, is not to say that these statutory provisions are entirely irrelevant to the question of the validity of the President’s action. We think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. . . . We cannot ignore the general tenor of Congress’s legislation in this area in trying to determine whether the President is acting alone or . . . with the acceptance of Congress.” (62-63)
a. It reflected a broader acquiescence of Congress
b. This looks kind of like Youngstown, but this isn't a bad thing because this is a situation where the president has more power because his conduct deals with foreign affairs issues unlike Youngstown (domestic).
c. The issue is that some of these assets were domestic assets. Rehnquist says that this holding is very narrow.
4. “Finally, we re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. . . . But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President’s action, we are not prepared to say that the President lacks the power to settle such claims.” (65)
a. The Court won’t admit that the rules are different in foreign affairs cases, it will apply the same rules but apply them differently, allow for a little more flexibility and room to maneuver on the Gov’ts part.
iv. Justice Brennan in Haig
1. A requirement of evidence of the Executive’s exercise of discretion as opposed to its possession of discretion may best be understood as a preference for the strongest proof that Congress knew of and acquiesced in that authority. The presence of sensitive constitutional questions in the passport revocation context cautions against applying the normal rule that administrative constructions in cases of statutory construction are to be given great weight. Only when Congress had maintained its silence in the face of a consistent and substantial pattern of actual passport denials or revocations-where the parties will presumably objet loudly, perhaps through legal action, to the Secretary’s exercise of discretion-can this Court be sure that Congress is aware of the Secretary’s actions and has implicitly approved that exercise of discretion. Moreover, broad statements by the Executive Branch relating to its discretion in the passport area lack the precision of definition that would follow from concrete applications of that discretion in specific cases. Although Congress might register general approval of the Executive’s overall policy, it still might disapprove of the Executive’s pattern of applying that broad rule in specific categories of cases.
v. Whatever else may be said about Curtiss-Wright and Dames & Moore, the former “upheld an exercise of statutory authority,” and the latter “upheld a consistent executive practice because of substantial evidence of congressional acquiescence . . . .” As they conclude, “Neither found an inherent, let alone preclusive, power of the President to take the challenged actions.”
vi. This Term, the Supreme Court will decide M.B.Z. v. Clinton, which raises the question whether Congress or the President gets to control whether Jerusalem is considered part of Israel (for purposes of U.S. passports, at least).
1. No one contests that the President has the sole power to “recognize” foreign governments, but is there an argument that this case raises a distinct power—perhaps one that is shared by the legislature and executive? If so, what is it?
2. Might be helpful to break this issue down into two distinct questions:
a. The President’s constitutional power to initiate hostilities; and
b. The President’s constitutional power to conduct hostilities once they have been (validly) initiated.
