Form and Function in the National Security Constitution
Deborah N. Pearlstein
Benjamin N. Cardozo School of Law
Connecticut Law Review, Forthcoming
Princeton Law and Public Affairs Working Paper No. 08-007
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.
Number of Pages in PDF File: 65
Date posted: July 15, 2008