The Land and Naval Forces Clause
93 Pages Posted: 23 Aug 2017 Last revised: 30 Oct 2018
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 or at least strong additional 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 other internal affairs of the national security apparatus, 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. This article argues for the Clause’s constitutional rediscovery and embrace as 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 and cyber operations. Ultimately, the Clause’s power is contingent: Congress must use it and other legal actors must 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, posse comitatus, cyber, cyberattack, cyber attack, nuclear weapons, War Powers
JEL Classification: K10, K30
Suggested Citation: Suggested Citation