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

National Security Law
Spring 2009—Professor Corn

Introduction to National Security

– What is National Security?
o Four Components of National Power (DIME)
§ Diplomacy
§ Ideology
§ Military
§ Economics
o National Security Law
§ Policies promulgated by legislature and executive
§ Body of authority of how policy makers apply four components of national power
§ Domestic Law and International Law
o Friction Points
§ Produces disputes, which is resolved by law
§ Examples
· Federalism
o Federal gov’t overstepping boundaries and violating states’ rights
o Treaties—∆ alien being able speak with consulate
· Separation of Powers
o War Powers Resolution
· Liberty Tension
o Spread of disease from dirty bomb; shut down borders?
– Purpose Statement of the Course—United States v. Robel (U.S. 1968)
o This concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power designated to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which make the defense of the Nation worthwhile
– What was Truman’s catch-22 in Youngstown
o Law dictates national security policy
§ Policy should be a slave to law
o Judicial Restraint
§ Doctrine of Judicial Abstention—when the branches work together the country is at its strongest
– Origins of National Security Law
o Presidents Power
§ (1) Make treaties
· Need advice and consent of senate
· Executive is the one who ratifies (mail box rule)
§ (2) Commander in Chief
· When called in the service of the United States
· Can either go to Congress or States
§ (3) Appoint Ambassadors
§ (4) Take care that law be faithfully executed
o Congressional Power
§ (1) Raise and support Army
§ (2) Provide for Navy (Appropriations can only be two years)
§ (3) Call forth Militia
§ (4) Declare War
§ (5) Grant letters of marquee and reprisal
§ (6) Make rules concerning captures on land and water
o Vestiture Clause
§ All legislative powers herein granted shall be vested in a Congress
§ Article I carves powers away from the states
§ Same language, “herein granted,” not in Article II
§ Congress has to enact law to enable another branch to execute powers
o Necessary and Proper Clause—U.S. Const. art. I § 8, cl. 18
§ 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
§ Deep well of power for the legislature
o Suspension of Writ of Habeas Corpus—U.S. Const. art. I § 9, cl. 2
§ 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
§ Writ = Show cause order
· Protects tyranny against the government
· Inference that Congress is the one to suspend
· Must be suspended by law
o Limitations on the President
§ Impeachment—For high crimes and misdemeanors
o Presidential Oath
§ 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.”
§ Originally judgment was used instead ability
o National Security in Constitution
§ Not much on national security and defense
§ Biggest concern at time of founders was disunity of the nation

Theories of Presidential Power

– Youngstown Sheet v. Sawyer (Steel Seizure Case) (U.S. 1952)
o Known as National Security Constitution
o U.S. at war with Korea. Steel Union announced it was going to strike
o President Truman issued executive order
§ Authorized Commerce Sec. to take possession of steel industry and keep mills operating to provide goods for a nat’l emergency
§ Congress refused Truman’s request twice to act
o Suit for injunction against president brought in federal district court
§ Note à not dismissed for being political question; this is a political issue
§ Demonstrates that a court can rule against a president in a time of war
o Taft-Hartley Act—Congress refused to adopt method of settling labor disputes by gov’t seizures
o Majority (Black)
§ Formalistic and textual approach
§ Past practices are irrelevant
· Illegal conduct oft repeated remains illegal
§ Ar.t II Power may have had more of an effect if the US was attacked
§ In a foreign conflict, however, Pres can’t use Commander-in-Chief title and “national emergency” to take private property
§ President only has power under Constitution or by statute (enacted by Congress)
· Executive vested in President
o Power not here b/c would make president a dictator power
· Faithfully execute laws
o No law by Congress, so nothing to execute
· Take Care Clause
o The we need power belongs to congress, not the president
· Commander in Chief
o Can’t take private pp in order to keep labor dispute from stopping production
o Not a “theater of war” situation to allow president to seize property
o Contrast to Lincoln: Civil War was domestic
o Concur (Frankfurter)
§ “Emergency Power”
· Pure and limited act of necessity allowed
· But does not find emergency power
o Emergency exists, but not power to act on it
§ No twilight zone here
· Either occupied by congress or the president
· Here, there is no vacuum of power for the president to enter
§ Framers viewed seizure as such a drastic power that it be used only when the president was specifically vested with the power
§ Congress specifically denied right to seizure in Taft Hartley
· So not issue of implied right that it is acceptable b/c right directly denied
§ Structural Argument
· “Executive Power” can’t be taken w/out looking at the rest of the Const
§ Constitutional Gloss
· Executive can not take powers from Congress, but can operate in areas that Congress has allowed previously
· In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our gov’t, may be treated as a gloss on “executive power” vested in the President
· Systematic and Unbroken
o One function of white house counsel is to maintain power of the president
· Notorious
o Acquiescence of Congress has to have meaning
§ So Congress must know
§ I.e., should have opportunity to reject President’s exercise of power
§ Frankfurter’s opinion included matrix of every seizure in the history of the republic
· No seizure ever made without the express or implied consent of Congress
§ History—3 six-month periods do not amount to what Truman is attempting to do
o Concur (Douglas)
§ Emergency did not create power;
· Marked occasion where power could be exercised
· Strict view gov’t power
§ Branch that has the power to pay for the seizure/condemnation is the branch that may authorize it
o Concur (Jackson)
§ Emergency power would tend to kindle emergencies
· Forefat

Twilight Zone


No but maybe



– Youngtown: Two Fundamental Messages
o (1) Case does not stand for an inflexible standard of power (it is a case of necessity)
o (2) For the practical, case is a clear and unequivocal statement to the president and congress that if they work together they are the most powerful

– Dames & Moore v. Regan (U.S. 1981)(When President Acts with Congressional Acquiescence)
o Treasury Secretary (Regan) promulgated regulations nullifying attachments of Iranian assets
o Executive Order
§ Fed Dist. Cts. to release & terminate all legal proceedings involving claims of U.S. nationals against Iran
§ Judicial claim is a property interest; President terminating claims is takings issue
· Entitled to due process before deprivation of life, liberty, and property
o Hostage Act: inapposite here b/c applied to different situations
o Congress’ actions shows willingness to give President authority to take property away
§ History of acquiescence—Congress can’t anticipate and legislate w/ regard to every possible action the President may find it necessary to take or every possible situation in which he might act
§ Failure of Congress specifically to delegate authority, does not, especially in the area of foreign policy and national security imply “congressional disapproval” of executive action
o Congress was silent on the issue and silence can be deadly
§ Congress limits the President’s power when it expresses dissatisfaction or when it takes a decisive action in the field
§ Congress had previously limited such action by the president (but did not do so here)
o Congress may not want to expressly authorize the President to do something
§ B/c it doesn’t want to be held accountable
§ By legislating “around” the issue, it invites the Pres to fill in the gaps when there is a foreign affair issue
§ Ct is more likely to say that Pres is justified in filling the void
– Reconciling Dames and Youngstown
o Dames à Inward
§ This is a foreign issue that touches on a domestic sphere
§ Congress has legislated around the heart of the issue
o Youngstown à Outward
§ Domestic issue that touches on a foreign affair
§ Cases deal with two fundamentally different issues
· Different application depending whether domestic or foreign effect
o Ct acknowledges that there is executive power in the aggregate of powers
§ When it analyzes the executive power in the 3rd tier (lowest power), if implied power, ct will balance Congress’ interest and executive power
o If express power, executive branch gets the power; SC endorses 3-tier spectrum by its holding
o **Important** à Foreign affairs and war are not synonymous