National Security Law
Vermont Law School
Stephen Dycus
Fall Semester
I. National Security Powers
A. Separation of Powers Theory: assigned different powers to different institutions and persons in government in order to forestall tyranny, to promote the government’s legitimacy, and make the government more efficient
B. Presidential Powers
1. A President’s power, if any, to issue an order must stem either from an act of Congress or from the Constitution itself. Youngstown Sheet and Tube Co. v. Sawyer (pg. 24)
a. The President does not have the power to take possession of private property in order to keep labor disputes from stopping production
2. Delegated President Powers
a. Executive Power
b. Commander in Chief
i. Places the President at the top of the military chain of command without war policy-making policy authority
c. Command the Armed Forces only when called into actual service
i. Authorize and direct the movements of the naval and military forces placed by law at his command
ii. Command the military in authorized armed forces
iii. Including: conducting campaigns, command troops on battlefield, and decide tactics
d. Take care that the laws be faithfully executed
e. Make treaties (shared power with the Senate)
f. Appoint and receive ambassadors and ministers (shared power with the Senate)
3. Jackson’s Grouping of President’s Powers
a. When the President acts pursuant to Delegated Authority
i. The President’s authority is at his maximum
ii. Congress may delegate at least some of its legislative powers to the Executive
iii. Delegation Test:
A. Whether Congress may delegate the specific authority
B. Whether the delegating statute contains standards for exercise of the delegated discretion
C. Whether the Executive follows the standards
D. Whether the exercise of delegated authority otherwise violates the Constitution
iv. Congress has found it necessary to delegate many foreign relations powers to the President. U.S. v. Curtiss-Wright Export Corp (pg. 53)
A. Stating that the President had the authority to make it unlawful to sell arms and munitions of war in the U.S. to the countries engaged in armed conflict in accordance with a Joint Resolution of Congress
B. Stressed the importance between external and internal affairs
C. Deference to the President – The President has a better opportunity to know the conditions of foreign countries
v. The President has the power to suspend claims pending in American Courts. Dames & Moore v. Reagan (pg. 60)
A. Holding: the IEEPA and Hostage Acts enacted by Congress granted the President authority to deal with international crises and previous/continuous congressional acquiescence in executive claims settlements authorizes the President to suspend claims
B. Failure of Congress specifically to delegate authority does not, “especially in areas of foreign policy and national security,” imply congressional disapproval
C. Congress has implicitly approved the practice of claim settlement by executive agreement
b. When the President acts with Congressional Acquiescence
i. “Zone of Twilight”
ii. Congressional acquiescence may be enough to give the President authority for certain actions, even without explicit statutory authority. Dames & Moore
iii. Elements to require authority by acquiesce: long-standing and frequent practice, Congress has notice, collateral legislation. Dames & Moore
iv. But, Congress can’t just be silent. Dames & Moore
c. When the President takes measures incompatible with the express or implied will of Congress
i. Lowest “ebb” of power
ii. Test:
A. Whether the extent of the intrusion on the President’s power is justified by an overriding need to promote objectives within the constitutional authority of Congress
B. Where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch
4. Repel Attack/Defensive War Power
a. The President has repel attack authority; the power to repel invasions. The Prize Cases (pg. 68)
i. The President is “the sole and exclusive judge of whether the exigency has arisen” and implied the unsuitability of such a determination for judicial review
ii. The President must determine what degree of force the crisis demands
b. The President had the authority to institute a blockade of the ports in possession of persons in armed rebellion against the government. The Prize Cases (pg. 68)
c. The President does not have to wait for Congress to officially declare war after an attack. The Prize Cases (pg. 68)
5. Emergency Power
a. Faithfully execute the laws is an inferred power – to do what is necessary for the government to function. In re Neagle (pg. 83)
i. It is a necessary government function to protect it’s judges; therefore, the Attorney General was authorized to appoint a US Marshal as a bodyguard to Supreme Court justices. In re Neagle (pg. 83)
ii. Neagle was authorized to keep the peace and protect a judge from assault and murder
b. If Congress says nothing (as in Neagle), President can do what he feels necessary under implied emergency powers. If they speak, President can’t ignore express mandate of Congress. Neagle (pg. 83)
c. President has the power to meet and respond to a crisis by whatever means necessary. Prize Cases
6. Statutory Limits
a. Commander in Chief power does not grant the President power beyond the limits assigned to them by the legislative power. Little v. Bareme (pg. 78)
i. During the war between the U.S. and France, Congress passed an act authorizing the President to stop any U.S. ship sailing to any French port
ii. The President’s Order stating the navy to seize vessels bound to or from a French port
iii. Holding: The order of the President was in contradiction of Congress’ act and therefore is not constitutional
iv. Congressional intent to limit the authority to seize the vessel bound or sailing to a French port
b. Congress cannot intrude on the President’s core command powers
i. Examples: “day-to-day” tactical decisions an
Delegations of War
i. Congress may delegate the power of national security and war/foreign affairs. Lichter v. United States (pg. 99)
A. Congress has to power to authorize the government to determine and recapture “excessive profits” by private contractors (Renegotiation Act)
1. Congress has the power “to raise and support Armies”
2. Congress has the power under the Necessary and Proper Clause
3. These powers authorize the Renegotiation Act
4. The power to wage war is the power to wage war effectively
B. A Constitutional power implies a power of delegation of authority under its sufficient to effect its purposes
ii. Delegations of authority must specify its policies and standards. Lichter v. United States (pg. 99)
iii. Congress can delegate freely, but if delegation authorizes a denial of a constitutional right, Congress must state that clearly. Greene v. McElroy (pg. 102)
iv. Congress must delegate power clearly – The Endo Rule
A. “To authorize or ratify executive action an appropriation must “plainly show a purpose to bestow the precise authority which is claimed.”
f. Defense Appropriations
i. In some instances appropriations may be regarded as a form of congressional acquiescence in executive practice. Greene
ii. Federal agencies may not use nonappropriated funds because their activities are authorized only to the extent of their appropriations
II. Using Force Abroad
A. Right to Wage War (jus ad bellum)
1. UN Charter, Article 2, paragraph 4 – “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
a. General Rule: UN Charter Article 2(4) forbids the “threat or use of force against the territorial integrity or political independence of any state”
i. The UN Charter does not permit use of force without clear approval from the Security Council
b. Exceptions:
i. Intervention – “the use of force when the Security Counsel determines the existence of a threat to the peace, a breach of the peace, or an act of aggression”
ii. Self Defense – a nation has the right “to defend itself from an armed attack by another or come to the aid of another state that is attacked”
A. “Nothing in the charter shall impair the inherent right of individual and collective self-defense if an armed attack occurs against a Member of the United Nations.” Article 51
