Clear Statement Principles and National Security: Hamdan and Beyond

37 Pages Posted: 7 Aug 2006

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Abstract

In resolving conflicts between individual rights and national security, the Supreme Court has often said that Congress must unambiguously authorize presidential action; the Court has also attempted to ensure that defendants are not deprived of their liberty except pursuant to fair trials. These decisions, a form of liberty-promoting minimalism, reject claims of unilateral or exclusive presidential authority. The Court's decision in Hamdan v. Rumsfeld reflects a distinctive clear statement principle, one that bans the President from convening a military commission, or otherwise departing from the standard adjudicative forms, unless Congress explicitly authorizes him to do so. The Court's conclusion diverges sharply from a plausible alternative view, which is that in view of the President's role as Commander-in-Chief, he should be permitted to construe ambiguous enactments as he see fits. The Court's approach has implications for numerous other problems involved in the war on terror. Most generally, it suggests the need for clear congressional authorization for presidential action that intrudes on liberty or departs from well-established historical practices. More specifically, it significantly weakens the President's argument on behalf of the legality of warrantless wiretapping by the National Security Agency.

Keywords: terrorism, military commissions, warrantless wiretapping, Commander-in-Chief

Suggested Citation

Sunstein, Cass R., Clear Statement Principles and National Security: Hamdan and Beyond. Supreme Court Review, Forthcoming; U of Chicago, Public Law Working Paper No. 134. Available at SSRN: https://ssrn.com/abstract=922406

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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