Executive Power and National Security Power

Cambridge Companion to the United States Constitution (2018)

Fordham Law Legal Studies Research Paper No. 2824416

39 Pages Posted: 7 Sep 2016 Last revised: 23 Jun 2018

See all articles by Andrew Kent

Andrew Kent

Fordham University School of Law

Julian Davis Mortenson

University of Michigan Law School

Date Written: August 16, 2016

Abstract

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims of direct constitutional authorization were strikingly modest, and their requests for (and compliance with the terms of) specific statutory and judicial instructions were strikingly precise.

Second, the Civil War. While the authorization principle still dominated as an organizing concept, the executive branch began to invoke very different sources of authority in the face of existential crisis. During the early republic, Presidents had sought national security authorization primarily in the contemporaneous acts of a then-sitting Congress. The Civil War period, by contrast, saw a dramatically increased tendency for the executive branch to respond by seeking authorization in the century-old terms of the Constitution. Predictably, these far more assertive claims triggered severe constitutional controversy.

By the end of the Cold War, the third period discussed here, that constitutional pressure had been alleviated. Essentially, the solution has been for Congress -- drawing on the legacy of the New Deal, World War II and the Cold War alike -- to enact a broad set of permanent and interlocking ex ante statutory authorizations, the collective effect of which is to charge the President with taking virtually any national security action that seems needful. Combined with aggressive statutory interpretation and a large standing military, these statutes have enabled presidents to take an extraordinarily wide range of significant national security measures without seeking particularized, contemporaneous authorization from any other constitutional actor.

The upshot is a constitutional arrangement that relies on remarkably open-ended statutory authorization to mitigate anxieties about both power and constraint -- about the risks of a disempowered presidency in a dangerous world, but also about the risks of letting presidents rely on abstract constitutional text as the sole basis for violent action. While these authorizations don’t purport to constrain the executive branch with anything like the specificity of statutory regimes in earlier eras, their nature as legislative enactments entails a more meaningful possibility of authoritative supervision and even revision via subsequent democratic enactment than the Constitution ever could.

Keywords: national security, executive power, President, presidency, Youngstown, constitution, Article II, AUMF, IEEPA, Washington, Adams, Lincoln, Roosevelt, Obama, Bush, terrorism

Suggested Citation

Kent, Andrew and Mortenson, Julian Davis, Executive Power and National Security Power (August 16, 2016). Cambridge Companion to the United States Constitution (2018); Fordham Law Legal Studies Research Paper No. 2824416. Available at SSRN: https://ssrn.com/abstract=2824416 or http://dx.doi.org/10.2139/ssrn.2824416

Andrew Kent

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Julian Davis Mortenson (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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