A Statutory National Security President

Abstract

Not all presidential power to address national security threats stems from the Constitution. Some presidential national security powers stem from statute, creating complicated questions about the limits of these powers delegated to the President by Congress. Scholars who have explored ways to achieve the proper balance between responsiveness and accountability have generally focused on the proper degree of deference that courts should provide to the President interpreting statutory provisions, with little confidence in the utility and efficacy of statutory constraints.

This Article counters this narrative by arguing that a key to achieving this balance may lie in such constraints. Instead of defaulting to the broad deference often provided when the President is exercising constitutional national security powers, this Article urges both courts and Congress to be more attentive to the differences between constitutional and statutory national security powers and realize that statutory national security authorities are more amenable to constraints.

Specifically, this Article focuses on procedural constraints as viable, yet underappreciated, mechanisms to enhance transparency and consistency. It is also the first to argue for a distinction between acute and chronic national security threats and to propose a sliding scale of procedural constraints that is tailored to each threat classification. It argues that such constraints pose minimal separation of powers concerns where the President is already acting under delegated statutory power, encouraging more thoughtful analyses without hindering the ability of the President to respond nimbly to national security threats.

Keywords: National Security, National Emergency, Emergency Powers, Statutory President, Procedural Constraints, Statutory National Security President, the Federal Power Act, Telecommunications Act, National Emergencies Act, Chevron, Youngstown, Acute, Chronic, Foreign Affairs