Legislating Clear-Statement Regimes in National-Security Law
Jonathan F. Mitchell
Solicitor General of Texas
September 19, 2008
Georgia Law Review, Vol. 43, No. 4, Summer 2009, pp. 1059-1115
George Mason Law & Economics Research Paper No. 08-56
Congress’s national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it “specifically authorizes” them. And the Foreign Intelligence Surveillance Act of 1978 required its own amendment or repeal of its "exclusive means" provision before authorizing warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post- September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional" authorization," and that can induce Congress to confront Presidents who act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language.
Number of Pages in PDF File: 58
Keywords: Authorization to use Military Force, Clinton, constitutional avoidance, cruel, degrading, Detainee Treatment Act, entrenchment, Hamdan, inhuman, McCain Amendment, National Security Agency, 9-11, OLC, precommitment, retrenchment, separation of powers, statutory interpretation, torture, unilateralism
Date posted: September 24, 2008 ; Last revised: August 26, 2009
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