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National Security Law
SUNY Buffalo Law School
Kannar, George

See handwritten notes for below
U.S. Constitution – National Security Issues
Domestic tranquility
Common defense, promote the general welfare, and secure the blessings of liberty
Art. I, § 5
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy
Keep secret national security and counterterrorism information from the public
Art. I, § 6
Congressmen privileged from arrest, stops on the way to and from session, and questioning while in session à treasonous Congressmen could hide behind this privilege in trying to sabotage the U.S.
Art. I, § 8
War powers reserved to the legislature
Art. I, § 9
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
Art. I, § 10
Prevents States from usurping Congress’ war and tax powers
Art. II, § 1
The executive power shall be vested in a President of the United States of America.
Art. II, § 2
Power to make treaties with advice and consent of the Senate
Ambassadors, etc.
Art. II, § 3
he shall take care that the laws be faithfully executed
Art. III, § 2
Supreme Court has jurisdiction over domestic, cases involving ambassadors and public minister, admiralty and maritime, actions in which the U.S. is a party
Art. III, § 3
1st Amendment
Freedom of speech and assembly
2nd Amendment
Right of the people to bear arms
4th Amendment
Unreasonable searches and seizures
5th Amendment
Takings clause
Due Process
6th Amendment
Speedy trial, right to confront witnesses, right to counsel
7th Amendment
Jury trial
11th Amendment
Restricting the judicial branch’s jurisdiction à cannot adjudicate cases between two foreign citizens
14th Amendment
Due process
What is an executive order? Is it law or legislation?
Facts:             During the Korean War the steel companies and their unionized employees were unable to agree on a new collective bargaining agreement. The workers announced their intention to strike and, a few hours before the strike was to begin. The proposed work stoppage would immediately jeopardize our national defense because the country is at war. President Truman ordered the Secretary of Commerce to seize and operate most of the nation’s steel mills. Companies brought proceedings against Secretary Sawyer.
Issue:              Was the seizure unconstitutional?
Holding:        Yes. 
Rule:              President’s power to issue the order must stem either from an act of Congress or
from the Constitution itself (Black, majority).
Justice Black (majority) à Not in a statute or the Constitution
The president’s power t issue an order must stem from either:
An act of Congress. In this case, no such statute exists and therefore, there is no authority on behalf of the President.
The Constitution Itself. In this case, this act is not a part of the Commander-in Chief power because these companies are not part of the army or navy and have nothing to do with the army or navy.
As Commander-in-Chief : Even though the steel may be indispensable to the war effort, Court rejected idea that the president has the power to take “possession of private property” in order to keep labor disputes from interfering with the production of war materials. Black says that this idea is way too broad – would give president literally unlimited authority to wage war – too much discretionary power. No doctrine could be more sinister or alarming. “He has no monopoly of “war power,” whatever they are.”   
                        The Duty to Execute the laws: While the president has the duty to execute the law, he has no authority to make laws. Instead of directing that a Congressional policy be implemented, Truman was directed that a presidential policy be executed in a manner prescribed by the president. Truman is therefore usurping legislative function. Truman could have argued that the supreme law of the land was the Constitution and in preserving society is was necessary to act. In order to have a society under law at all, would have to act quickly in an emergency to preserve the country. If Truman was to exercise executive power this would completely undermine the structure of separation of powers. 
                        Inherent Executive Power: Truman relied on Article II’s grant of executive power as meaning that he had implied powers – since the Court thought that the seizure of private property was properly a legislative function and thus not among any implied powers that might exist, there was no need to address this contention at that time. Cannot defer rules of law because of necessity.
No Authorization – nothing indicates that the President has this power, therefore, he cannot do this.
Although, we are saying that the President cannot do this (alone), we are not saying that Congress can’t. (Different form commerce clause cases).Can they do together by some statute? Probably.
FRANKFURTER concurrence:
“long-headed statesman”
There is no silence, Congress spoke to the issue in 1947 à “deemed it wise to req. the Prez, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker”
“This is a Constitution we are expounding.” This is a system of government that should work. It has a text, but we have a history of living under the document. Ambiguities regarding the document have to be filled in with experiences. 
“It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which like has written upon them.”
There are traditions we have established, which should be part of the analysis
This has never been done before, so the Constitutional tradition argument does not work
Three isolated incidents in the past do not add up to a contemporaneous legal justification à President’s actions if done enough times w/o protest can lead to authority to do so (Long unbroken pattern of Congressional acquiescence)
DOUGLAS concurrence:
5th Amendment – “no ‘private property be taken for public use, w/o just compensation.’”
JACKSON concurre

r effectuate release…”
IEEPA delegates broad authority and Hostage Act grants broad discretion
Congress cannot anticipate every possible action the Prez may find necessary
US has repeatedly exercised its sovereign authority to settle claims of its nationals against foreign countries
USC has approved other executive agreements w/o the approval of the Senate
IEEPA enacted to provide some limitation, but nothing in the act was intended to interfere with the authority of Prez
Congress has not disapproved of the actions taken here à actually states it wanted a Tribunal – “of vital importance”
HOLDING: IEEPA expressly authorized the nullification of attachments and transfer of assets, but not authorized to suspend claims
The claims of American citizens are not in themselves transactions involving Iranian assets à judgments reduced to attachments on property
Acts against Congress’ express will
Public Citizen v. US Dept. of Justice, 491 U.S. 440 (1989).
“…where the Constitution commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch.”
Chapter 4 – President’s National Security Power
President’s Foreign Relations Powers
United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
Appellees conspired to sell in the US certain arms of war, namely, 15 machine guns, to Bolivia, a country then engaged in armed conflict, in violation of a Joint Resolution by Congress
ISSUE: Whether the Joint Resolution, as applied to the situation, is vulnerable to attack under the rule that forbids a delegation of the lawmaking power? No
Broad statement that the fed gov’t can exercise no powers except those specifically enumerated in the Constitution
Society cannot endure w/o a supreme will somewhere
Fed power over external affairs in origin and essential character different from that over internal affairs à no delegation problem, this is foreign not domestic affairs
The President alone has the power to speak or listen as a representative of the nation
He makes treaties w/ the advice of the Senate, but he alone negotiates
John Marshall quote à”the President is the sole organ of the nation in its external relations, and its sole representative with foreign affairs.” (rest of quote says so long as Congress approves the mode)
Foreign negotiations requires caution, and their success must often depend on secrecy
Unbroken legislative practice which has prevailed almost fomr the inception of the national gov’t
HOLDING: Prez can exercise foreign affairs powers