The Land and Naval Forces Clause
82 Pages Posted: 23 Aug 2017 Last revised: 13 Sep 2017
Date Written: August 18, 2017
What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws? There are a series of such statutory frameworks, including the Uniform Code of Military Justice (UCMJ), Posse Comitatus Act and its relatives (particularly parts of the Insurrection Act), Foreign Intelligence Surveillance Act (FISA), the covert action statute, anti-torture laws, and the War Powers Resolution. The best textual footing for these statutes, this article argues, is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” Although the common assumption is that this Land and Naval Forces Clause is a single enumerated power, this article theorizes the Clause as providing Congress two powers: a well-recognized Internal Regulation power over military justice and discipline, and also an External Government power over operations. This article analyzes the Clause’s text, counter-authoritarian origins, and its constitutional interpretation since the Founding Era. It argues for the Clause’s constitutional rediscovery and embrace as the primary textual footing for a series of vital statutory frameworks that govern the military and the Intelligence Community at the intersection of liberty and security, and regarding the use of force domestically and internationally. Ultimately, the Clause’s power is contingent: Congress must use it and other legal actors give life to its statutes and constitutional values for it to be meaningful.
Keywords: Constitution, military, intelligence, war powers, FISA, surveillance, torture, interrogation, Congress, President, military justice, UCMJ, legislation, originalism, posse comitatus, foreign affairs, separation of powers
JEL Classification: K10, K30
Suggested Citation: Suggested Citation