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National Security Law
South Texas College of Law Houston
Corn, Geoffrey S.

National Security Corn Spring 2016

National Security Principles

Instruments of National Power (DIMEC):

Diplomacy
Intelligence
Military Power
Economic Power
Criminal Prosecution

What is National Security Law?

The law that frames the leverage of the above powers.The law that regulates, limits and authorizes the leverage of DIMEC.

Vesticature Clause:

Art. I.: “all legislative powers herein granted shall be vested in a Congress of the United States.”

Art. II: “the executive power shall be vested in a President of the United States.”

Youngstown Sheet and Tube. Co. v. Sawyer (1952)- The President issued an executive order directing the Secretary of Commerce to seize and operate the nations steel mills. The President issued an executive order to keep the steel mills running in support of war materials.

J. Black- rejects the argument that the President authority should be implied from the aggregate of his powers under the Constitution. If there is no express grant, he cannot do it. He is completely disinterested in the argument that this was an emergency. He is most concerned about the Executives usurpation of power from Congress. Congress had already occupied the field because they rejected an amendment that would have authorized this action. The President does not have necessary and proper authority.
J. Frankfurter (concurrence)- thinks the issue would be different if Congress had not enacted any legislation on the issue but they did. The President ignored congressional intent and disrespected the whole process. The traditional ways in which government has been conducted adds “gloss” to the words of the constitution. But even the previous times that steel mill seizures were authorized does not make this seizure constitutional.
J. Douglas (concurrence)- the Presidents order is tantamount to making law. The branch of government that has the authority to compensate for the seizure is the only branch that can do so.
J. Jackson (concurrence)- Presidential powers are not fixed but fluctuate.

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.
When the President acts in absence of either a congressional grant or denial of authority there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb.

Here, the action can only be justified by any remainder of executive power after subtraction of such powers as Congress may have over the subject.

J. Burton (concurrence)- the President’s action was not in response to an attack. (Implies emergency authority but rejects the idea that this was an emergency).
J. Clark (concurrence)- the President does have power to respond in the face of an emergency but he must act in accordance with the specific procedures laid down by Congress.
J. Vincent, J. Reed, J. Minton (dissent)- The President was acting pursuant to the Take Care Clause of the Constitution. The President acted in the face of an emergency until Congress could act. He was in a catch-22 because there was one law that said he had to stabilize these prices but there was another law that said he must procure military equipment. Congress had the authority to do something but simply didn’t.

NOTES: This could have been a political question (question within the unique confidence of another branch and the court lacks judicially manageable standards of review). But the Court simply characterized this as a taking.

What process are you due before the government can seize your property?

The government has to pay you for it.

Necessary and Proper Clause:

It’s necessary if it is linked to a vested power of the government
It’s proper if it does not violate other provisions of the constitution

Dames & Moore v. Regan (1981)- Iran took hostages and President Carter was trying to get them released so Congress passed IEEPA which declared a national emergency. Meanwhile, Dames & Moore had sued businesses in Iran for breach of K and there was a prejudgment attachment. The President issued an executive order that suspended Dames & Moore’s recovery. Thus, the President seized property of Americans.

J. Rehnquist- rejects the argument that the President was acting in accordance with Congress but nonetheless finds the order proper. He distinguishes this case from Youngstown—this case is about foreign policy and Youngstown was not. While almost everything that Congress does touches on foreign policy, here there was a direct link between the action and the foreign policy objective. And foreign affairs is exclusively within the Presidents constitutional authority. In Youngstown, it was much more attenuated. He thinks that Jackson’s three tiers are over simplified and really the power is on a continuum. He also thinks the twilight zone is wider than we thought.

If you are arguing the Congress should be able to take away historical power of the President then Dames & Moore is the BEST precedent.

Rehnquist hints that a concurrent resolution passed by Congress may take away the historical “gloss” power given to the President.
The idea is that Congress has all the power it wants as long as it acts—silence invites executive action.

Types of Congressional Resolutions:

Joint Resolution

Has the force a

in Youngstown).

Congressional Authority

Little v. Barreme (1801)- The United States was engaged in hostilities with France and Congress passed an Act that allowed the President to seize any vessel on the seas that was in commerce with France (American or French vessels) and their cargo to be forfeited if they were sailing TO France. Captain Little intercepted a Danish ship that was coming FROM France and that ship owner sued Captain Little for trespass.

Issue: Is Captain Little liable in damages for trespass?
Holding: Yes.
Reasoning: The Legislature limited the authority of the Act by specifically allowing seizures only for ships sailing TO France. It is unclear whether the President would have authority to do this without the Act. The fact that Little was acting in what he thought was accordance with Executive order does not insulate him from liability.

Remaining issue:

Is this case about war powers or not?Is it simply about executing the law?
There is an argument for both but the principle is that Congress may set limits on the scope of war

Bas v. Tingy- Captain recaptures a ship and says he is entitled to one half of the proceeds but the owner says no you are only entitled to 1/8 because it was not captured from an “enemy.” The ship w as taken from France and we were not in a declared war with France. The court defines perfect and imperfect war:

Perfect War

Legally protected war
A legally declared war
Entire nation at war with the enemy

Imperfect War

Congress can authorize an undeclared war
Congress gets to choose the methodology it wants to authorize war

You can fight in these places
You can attack these person
You can capture these things

This is a limited war

Notes: Whether or not we are at war is NOT a PQ but how Congress decides to place us in a war IS a PQ.

Dellums v. Bush (1990)- The President deployed troops to Saudi Arabia before Congressional authority was given. A Congressman sought an injunction to prevent the President from doing so because Congress had yet to declare war. The Court denies relief based on the political question doctrine, standing, and ripeness.