Form and Function in the National Security Constitution

65 Pages Posted: 15 Jul 2008

See all articles by Deborah N. Pearlstein

Deborah N. Pearlstein

Yeshiva University - Benjamin N. Cardozo School of Law


Since Alexander Hamilton first wrote of the functional virtues of the presidency in matters of foreign affairs, his claim that a unitary executive is specially blessed with advantages of "[d]ecision, activity, secrecy, and dispatch" has been invoked regularly to argue for a limited role for Congress in national security decision-making, and even more rigorous deference to executive preferences by the courts. The Hamiltonian virtues have proven particularly compelling to a modern set of functionalist scholars from Bruce Ackerman to John Yoo, who rely on the same metrics of institutional competence to defend executive-heavy security detention programs (and other initiatives) against separation-of-powers arguments that the Constitution requires greater multi-branch engagement. While embracing the relevance of functional considerations in separation-of-powers disputes, this Article rejects the notion that unitary executive power is the structural arrangement most functionally advantageous for combating terrorism and associated threats. Although some terrorist-related events are "emergencies" that may implicate the Hamiltonian virtues, the new functionalist tendency to view counterterrorism only through the lens of emergency power exaggerates the importance of high-speed rights-security trade-offs, and obscures the range of trade-offs any security policy decision-making structure must confront - including regular trade-offs between strategy and tactics. Moreover, as organization theory helps demonstrate, while flexibility, unity, and speed can have advantages in the management of high-consequence risk, they also carry significant disadvantages that traditional separation-of-powers interpretation ignores, and that bear directly on the efficacy of executive-only decision structures. In the end, the alternative approach to evaluating comparative institutional competence proposed here leads to a far more favorable view of the functional desirability of multi-branch participation in programs geared to addressing the terrorist threat.

Suggested Citation

Pearlstein, Deborah N., Form and Function in the National Security Constitution. Connecticut Law Review, Forthcoming, Princeton Law and Public Affairs Working Paper No. 08-007, Available at SSRN:

Deborah N. Pearlstein (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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