National Security And The Law
Professor Borgen
SEPARATION OF NATIONAL SECURITY POWERS – THE CONSTITUTION
Brief History
· The Framers were concerned with the notion that a single man or a single governmental body would have command over all war making power. The experience under the Royal Crown made colonists weary with the concept of one man, much like the king, having the ability to declare war, raise and support armies, and execute the war itself.
· Framers, such as Charles Pinckney of South Carolina, also lamented the idea that a house of representatives would have some substantial control over war powers. As he put it, the slowness in the ability to react to quick developments would render the usefulness of large body deliberations null in the face of a rapid threat.
· However, Federalists like James Madison elucidated the need for checks and balances among branches of the government which would never technically be completely separated:
THEORIES OF EXECUTIVE NATIONAL SECURITY POWER
Article II confers the powers of the executive
· Purposefully vague in some areas as evidenced by the difficulties the framers had earlier with the Articles of Confederation in creating any sort of power wielding executive. Much of this sentiment stemmed from the fear of a King, having just fought a war to rid themselves of one.
Sources of Presidential Power
Congressional Grant of Power
· Enabling and authorizing statutes, such as AUMFs (…granting the President the power to do whatever he sees fit to repel attacks against the forces of the United States and its Allies.)
Constitutional Grant of Power
· Specific textual grant of power “shall receive ambassadors”
· Inherent powers “laws of the US be faithfully executed”
Executive Orders
· Allows presidents to make laws (loaded statement)
· Must be published in the federal register
· In national security measures, not necessarily published
The Steel Seizure Case: Youngstown Sheet & Tube, Co. v. Sawyer, 1952
During the Korean War, steel workers were going to strike. President issued executive order for Secretary of Commerce Sawyer to take possession of most of the steel mills and keep them running with the purpose of “averting a national catastrophe.” Companies brought suit against Sawyer. Steel companies argue President’s order was a legislative act which is under the sole power of Congress. President argues authority implied from aggregate powers under the Constitution: vestiture clause (executive clause), take care clause (faithfully execute power), and Commander in Chief. Court rejected this 6-3.
· Justice Black (formalistic): no act of Congress authorized the President to seize the steel operations, so if anything his power comes from the Constitution. The Constitution does not delegate that type of power to the President, nor can it be “implied from the aggregate” of presidential powers.
o Nature of Truman’s order was legislative. He did not have authority under an act of Congress or the Constitution. Only Congress has lawmaking power.
· Justice Frankfurter, concurring (functional, historical, prudential): Court should not confine itself to the words of the Constitution but must consider the “gloss which life has put on them regarding executive power.”
o Systematic, unbroken executive practice
§ “Congress could not more clearly and emphatically have withheld authority.”
o Long pursued to the knowledge of Congress
§ “Knowing Silence of Congress”
§ Consider relevant factors: consistency, frequency, duration, density, continuity, normalcy of the executive practice, congressional notice of the practice, and meaningful congressional acquiescence
· Justice Douglas, concurring (formalistic): The President can act without constitutional delegation of authority provided that power had not been given elsewhere. Nature of the act is condemnation of the property which is a legislative act (eminent domain: seize property but must be compensated and Congress has the power of the purse.
o Only Congress has the power to raise revenues for paying compensation so only Congress can seize property for public use.
· Justice Jackson, concurring (functional approach): “Presidential powers are not fixed, but fluctuate depending upon their disjunction or conjunction with those of Congress.”
o Three Categories (according to Justice Jackson)
§ 1. President acts pursuant to an express or implied authorization of Congress
§ 2. President acts in absence of either a Congressional grant or denial of authority (so-called zone of twilight)
§ 3. President takes measures that are incompatible with the express or implied powers
o In this case, Congress consciously did not the President seizure power when passing the Taft-Hartley act (acting in conflict against Congress).
Black
Douglas
Jackson
Frankfurter
Commander in Chief
Outside theater of war (geographically bound?
Gloss and history
Emergency (Inherent)
Rejects that special power occurs when there is an emergency
Short period unless extended by Congress
Vestiture (Take Care Clause)
Rejects, no specific grant
Rejects broad reading, no specific grant
Gloss on executive power, acquiescence by Congress
Vestiture Clause: “The executive Power shall be vested in a President of the United States of America” (Art. II, § 1, cl. 1).
Take Care Clause: The president “shall take Care that the Laws be faithfully executed” (Art. II, § 3).
Commander in Chief: 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” (Art. II, § 2, cl. 1).
FOREIGN AFFAIRS & WAR POWERS
· Congress derives its power in foreign policy, especially war, from Art. I section 8: The power to lay and collect duties, to raise and support armies, to regulate commerce with foreign nations, to declare war, to regulate piracy.
· Article II Presidential foreign policy powers: Commander in Chief, grants him the power to negotiate treaties and to appoint ambassadors and other public ministers with the
advice and consent of the Senate, and to receive ambassadors and other public ministers.
o 4 Powers: Foreign relations, Commander in Chief, Emergency powers, power to protect information
Article II section 2 makes President Commander in Chief
US v. Curtiss-Wright Export Corporation, 1936
Defendant indicted for selling 15 machine guns to Bolivia during the war in violation of Proclamation by President. Curtis Wright said there was an invalid delegation of legislative power to the President.
· 1934 Join Congressional Resolution: That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco (area between Bolivia and Paraguay that was thought to be rich in oil) may contribute to the reestablishment of peace between those countries, and if he makes proclamations to that effect, it shall be unlawful to sell any arms or munitions of war in any place in the United States to the countries now engaged
Constitution and oath of office.
Presidential power through Acts of Congress of 1795 and 1807: President authorized to call out the militia and use the military and navy in invasion by foreign nations and to suppress insurrection against the government of a state or of the U.S.
Intertwined constitutional and delegated power.
“The right of prize and capture has its origin in the jus belli and is governed and adjudged under the law of nations. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory, in possession of the other.”
Inherent authority regardless of whether or not there is statutory permission.
Dissent: When a war is declared, ordinary citizens turn into public enemies and are treated accordingly. The great power over the business and property of the citizen is preserved to Congress and cannot be delegated.
Notice: 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.
Congressional ratification of the seizures was an ex post facto law and hence invalid.
President’s Commander in Chief Power
Article II designates that the President is the Commander in Chief of all armed forces. The President is the “first general” and is in charge of all ultimate tactical decision making. While Congress has the power to declare war, many theorize that absent withdrawal of funds to the army and navy, i.e. political suicide, that Congress lacks power in this area to curb the President’s power.
Can Congress authorize military force in an AUMF but add a clause that says “So long as no nuclear weapons are deployed…”
Arguably Congress cannot do this. The use of nuclear weapons is a tactical decision intimately involved in the process of prosecuting a war or conflict. The President is Commander in Chief and Congress cannot erode those powers through legislation.
Two Theories of Presidential Commander in Chief Power
· Unitary Executive Theory: Theodore Roosevelt, do anything that the needs of the nation demands unless expressly forbidden.
o The President under Article II is afforded expansive power and control over the executive branch. Congress can do little to nothing to erode this power.
o Framers intended for an “energetic executive” (Hamilton)
o The specific grant of power in the Congressional vestiture clause “…herein granted” versus the open ended vestiture clause for the President shows the intent for the President to wield such power.
o “Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining intelligence he believes necessary to prevent attacks upon the United States.”
