Foreign Relations

FOREIGN RELATIONS

AND

NATIONAL SECURITY LAW

The Analytic Framework: Separate Branches With Shared National Security Powers
Introduction
The Original Understanding

Overview of National Security Law:

US domestic legal framework
this is the US law governing response to threats
there is some international law included in US law:
treaties
Congress can codify the law of Nations
customary international law is part of federal US CL

 this focuses on the law of incorporations itself, not what the law is when it is incorporated.

Protecting “polity” from threat of violence or theft
this is a threat on the US government or society at large
cf. to the vast majority of criminal law which is aimed at individuals
examples include:
drug trafficking
international organized crime
international money laundering

 this is when crime which is aimed at individuals threatens society as a community.

Using lethal force, intelligence ops, homeland defense, etc.
lethal force:
armed militia and covert forms – ie. assassinations
intelligence “ops”:
often involves using dirty assets – don’t just operate through US agents – it privatizes war.
homeland defense:
detection and prevention of terrorism – crisis and consequence management
immediate first response and then continuity of government.
includes punishment of terrorists:
punish by trial like techniques for punishment and/or deportation; possibly trial by military commission.

military commission: a panel of officers operating under military rules, without appellate review in the courts.
punish by use of force
economic punishment

secrets:

classified information – how can public hold government accountable if information is w/held from them?

The Constitutional Text

hypothetical: Identify any arguable constitutional authority – based on text and the framing history – for the military detention and possible trial by military commission of suspected terrorists who are U.S. citizens, such as the “Dirty Bomber,” taken into custody in Chicago, and the “Cajun Taliban,” taken into custody in Afghanistan.

Dirty Bomber: in military custody, not been charged with anything, no access to a lawyer and no court can review his detention.
Cajun Taliban: in military detention
Possible Authority:

5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;”
does the exception require a declaration of war or is the President’s authorization of use of force enough authority?
does it apply only to members of the armed forces?
Art II § 2: “The President shall be the Commander in Chief of the Army and Navy of the United States . . . .”
w/out regard to whether there has been a formal declaration of war, President can say people are unlawful combatants and there is no limitation on that – its not reviewable.
where is the check and balance on that?
political check – probably not that much of a check
appropriations: Art I § 9 cl. 7: “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;”

Congress can specifically say that no money should be spent on appropriations.
there are general appropriations items (ie 20 million for military police)
Congress’ appropriations power is limited as well: Art I § 8 cl. 12 & 13: appropriations for military must be revisited every 2 years and it must be done in public.  illustrates constitutional concern regarding the standing army and using a people based militia.

RH: this cannot mean that anytime the President orders the military around he can do whatever he wants – there are some limits on the CIC power:at the very least – the Presidents authority under this is greater in war time b/c it has to do w/ tactical command.

Art I § 9: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.”
writ of habeas corpus: right to have a court review the legality of your detention.
problem, not clear who can suspend the writ  it is in Art I which deals w/ powers of Congress BUT it is included in § 9 which is passive and farmed in the negative (ie. one interpretation – the framers didn’t want this to be a Congressional decision).
another interpretation: allow the President to suspend the writ and this part is simply focused on the conditions – not who could suspend the writ.
Art IV § 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion;”
limits: President can only step in if the legislature cant be convened.
Art II § 3: “[H]e may, on extraordinary Occasions, convene both Houses.”
this illustrates that even in emergency times the President may have to resort to Congress – he cannot act on his own.
Art I § 10 cl. 3: “No state shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
illustrates that the Federal government wants control of war.
Art II § 1: presidents oath to uphold the constitution:
argue that the President is acting in defense of people – it seems odd, but that is what Lincoln did during the Civil war.
limit: Congress takes the same oath.
Art I § 8: “The Congress shall have the Power To . . . provide for the common defence and general Welfare of the United States.”

Congress lays down the law fro when to call militia – President will presumably be the one to call them up.

 NOTE: our constitution favors legislative action – which is not the optimal scheme for dealing with emergencies. The severe constraints are no accident – emergency power by the executive is the most frequently abused.

hypothetical: If Congress wanted information on who was being detained and the Administration said no – how could Congress get classified information, secrets, etc?
Possible Authority:
Art I § 5: secret journal provision:

allows Congress to keep secrets – doesn’t say the President can keep secrets from Congress.
Art II § 3: state of the Union address:
President gives Congress info on the state of the Union – but is limited from time to time – not necessarily whenever Congress asks for it.
Art I § 1:
implied power to give information to legislature to allow Congress to legislate appropriately – this would place limits on what Congress could ask from the President.
Art II § 2:
in order to command troops during wartime, President would presumably have to have some right to classifying secrets.
diplomacy: appointing ambassadors, signing treaties – requires some secrecy.
Art I § 9:
“regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
but, this deals w/ the flow of information to the public – not from the President to Congress.

Examination of the text reveals the potential for the allocation of national security powers actually reflected in our history. It also demonstrates the futility of trying to divine the Framers’ intent from the text alone.

Articles I and II have overlapping functions
The text is not precise
The text fails altogether to prescribe or allocate power over some important areas of national security.

The Framers’ View:

The Convention: general consensus among Convention delegates about the need for a strengthened national government. There was a general understanding that the appropriations power would be employed to control the military. A motion to vest the war power solely in the senate was rejected and power to “declare” as opposed to “make” (which suggests “conduct”) was given to Congress. Although nothing suggests an intention to allow the President to “make” war without a declaration. In the end, the delegates themselves did little to define the executive.
Ratification: indicates a rejection of the notion of a unilateral presidential power over war-making. There is similar evidence that the Commander-in-Chief power was viewed narrowly. The ratification debates tend to confirm that the “declare” language could not fairly be read to limit Congress to formal war-initiation. No ratifier argued that the President has unilateral power to engage in hostilities without congressional approval, in the absence of a sudden attack. Undeclared wars were thought to be possible, but it is not altogether clear under what circumstances and by whom they could be initiated.

Shared Powers and Separate or Customary Authority

Some observers believe the constitution created a government of separated institutions sharing powers. Even those who disagree that the branches share power would today have to agree that they share authority over the same subjects, though they usually exercise it in different forms. Youngstown illustrates the various approaches taken to such separation of powers issues.

Youngstown Sheet & Tube Co. v. Sawyer (US S.Ct. 1952): text 31

Facts: President issued EO to seize the nations steel mills and keep production going. The Secretary of Commerce did so and the President sent a message to Congress reporting his action – Congress did nothing. The companies obeyed the EO, but brought proceedings against the Secretary. The D.Ct. issued a preliminary injunction restraining the Secretary from acting under EO and seizing the plants. The Secretary appeals here.

note: EO’s are either issued by statute (which have the force and effect of statute) or are not (which is then based on inherent constitutional authority to have the force and effect of law – if not based on constitutional authority – then doesn’t have the force and effect of law).

Issue: Whether the President was acting w/in his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills.

Black: Majority:
there is no statutory authorization for President to seize the plant
seizure statutes don’t apply and the Taft-Hartley Act illustrates that Congress concluded not to provide such authority b/c it would interfere w/ collective bargaining.
Congress has not authorized seizure, President’s actions are lawmaking and the President cannot make the laws.
Commander-in-Chief Cl:
this is not occurring in the theater of war (suggesting he may be less stringent if this took place in theater of war)
in theater have evidentiary problem of collecting evidence to work under normal criminal procedures  that is not the case here.

Vestiture/Take Care Cl:
rejects this as authority because laws are made by Congress and there are no laws here – thus there is nothing to execute faithfully.

Frankfurter: Concurring:
Commander-in-Chief Cl:
stresses that this is not a declared war – if it was, then maybe the domestic authorities would be different.
Vestiture/Take Care Cl:

even if there is no express statute to execute, it is possible that by consistent and long lasting executive practice that the President has been allowed to exercise power in which Congress by notice has acquiesced. = customary authority
the current situation, however, can be distinguished from past instances of customary authority. (ie. Midwest Oil = unique, WWI and WWII – had authority from Congress, others are all distinguishable). it’s a fairly demanding predicate and it is not met here.
Emergency Powers:

there is a temporary emergency power which authorizes collapses – acknowledges some form of emergency power under very narrow conditions.

Douglas: Concurring:
only Congress can authorize such seizure because only Congress can authorize money to compensate for it.
Jackson: Concurring:
Commander-in-Chief Cl:

this is a war the President has started on his own – how can the President start a war and then use that war to invoke further power?
not necessarily convinced that the Korean war is illegal, but regardless, it is not enough to self-vest the President to seize the plant.
makes a distinction b/w outside and inside world: “I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence.”
Emergency Powers:

framers set up a procedure for dealing w/ emergencies and it required going to Congress to ask for authorization – need to get a law.
when there isn’t time to go to Congress – don’t worry about it, Congress can see it coming and delegate authority before hand = standby statutory authority (ie. Militia Act – delegated authority for when invasion occurs).
Jackson is wholly reluctant to acknowledge emergency power for fear of abuse.

Burton: Concurring:
Commander-in-Chief Cl:

might be a war situation in which entire nation is mobilized where the President might have the power (so not completely rejecting it), but this is not such a situation.
Emergency Powers:

in a catastrophic situation there may be emergency power – but this is not one – not an insurrection or an invasion (which the constitution text talks about).

Clark: Concurring:
Emergency Powers:

there might be situations sufficiently grave where the Presdient can act – but only if Congress hasn’t occupied the field – in his opinion, the Taft-Hartley Act occupies the field.

Vinson: Dissenting:
Vestiture/Take Care Cl:

argues that the President is executing legislative programs and he reported to Congress:

(1) wage and price stabilization
(2) Defense Production Act
Count da Justices:

3 Justices agree that there is CIC power to do this under some circumstances – but this aint it.
5-6 Justices agree that there is emergency authority in other circumstances  there is inherent emergency powers.
5-6 Justices agree that there is other executive power (ie. vestiture and take care cl) IF Congress has not occupied the field and you buy into FF customary authority argument.

Youngstown leaves the question open as to what happens if a conflict arises between a statute and a claim of independent authorization from the President – who prevails?

Public Citizen v. United States Department of Justice (US S.Ct. 1989): text 56
. . . Kennedy’s concurring opinion suggests a solution
Kennedy writes that there are 2 categories of separation of powers cases:

(1) formalist: the constitution already struck a balance b/w branches and assigned the authorization to one branch. (ie Black’s opinion in Steel Seizure)
where the constitution is silent – there the courts do have a role and its left to the S.Ct. to balance the degree of intrusion of the Executive against the need for a statute from Congress. (ie. Morrison v. Olsen)

Kennedy believes that national security cases will generally use

category (2) b/c either: (a) the constitution is silent or (b) the authority is assigned to both branches.

The President’s Constitutional Authority
“Curtiss-Wright, So I’m Right”: The President’s Foreign Relations and War Authority

Foreign Relations Power:

United States v. Curtiss-Wright Export Corp. (US S.Ct. 1936): text 61

Procedural History: Appellees were indicted for conspiracy to sell arms from US to Bolivia during conflict in Chaco, in violation of the Joint Resolution of Congress and the proclamation issued by the President.
Facts: Joint Resolution directs that if President finds the prohibition on the sale of arms would contribute to the reestablishment of peace b/w the countries, he may make a proclamation to that effect and it will be unlawful to sell arms except under such limitations as the President prescribes. The President made such proclamation and delegated to the Secretary of State power of prescribing exceptions. Appellee’s contend that in four different (see 62) provisions of the Resolution, Congress unconstitutionally abdicated its essential functions and delegated them to the Executive.
Issue: Whether Congress is permitted to delegate authority with less specificity than would be required in the domestic arena.
The Ct. upholds the statute even though it is not specific enough to pass muster under domestic delegation doctrine, b/c:

(1) Inherent authority theory: the President has some inherent authority in the Foreign Affairs area to begin w/ cf. in domestic arena, any power he has must come from Congress.
(2) Necessity theory: Congress doesn’t have access to the same information as the President (some of which is secret) so Congress is not in a position to legislate effectively.
(3) Flexibility: in foreign affairs, the Ct. assumes the events to which US has to respond are harder to predict in advance then domestic prediction, so to the extent it delegates any authority – it has to do so loosely.
Sutherland explains the inherent authority theory: “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

foreign affairs powers are inherent in the sovereign and are derived from the law of nations – not taken from the people or the states.
counterarguments

as a historical matter, most think this is bullshit – the Continental Congress and states both exercise foreign affairs power – so it does come from the states.
logically erroneous: even if concede that nation has foreign affairs power, who says the President has to have it?
“sole organ” language doesn’t necessarily mean what it has been used for  its been used to say that the President has huge foreign affairs power.
Marshall was speaking on the floor re: a treaty – if there is a duty imposed on the Executive branch Congress can say how and when – if Congress doesn’t specify, the President has to b/c he still has to execute the laws  this is a far cry from plenary and exclusive foreign affairs power.

President’s War Authority:

Little v. Barreme(US S.Ct. 1804): text 71

Marshall: Majority

Procedural History:US frigate was detained as it returned from a FrenchPort. The ship owners sued Captain Little (of the armed ship) for trespass.
Facts: The Act authorizes the President to instruct the commanders of armed vessels to stop and examine a ship is has reason so suspect is engaging in traffic or commerce … so can stop ships going to any French port. The US ship here was stopped returning from a FrenchPort. It turns out the President authorized the seizure of ships returning from a FrenchPort as well.
Barreme argued that the statute is controlling and the executive re-writing of it is unlawful.
2 issues to examine:

(1) would the seizure have been lawful if there was no statute? ie. could the President have authorized the seizure?

if Congress hasn’t occupied the field by specifying the means by which to execute war, the President has CIC powers to execute it. Justice Marshall thinks the President’s order is more logical than the statute.
(2) How does the court find the action unlawful when the statute doesn’t expressly prohibit seizing vessels coming from the port?
Marshall feels bad b/c Little is just following President’s order and Little will be personally liable.
In the Ct’s view, Congress has occupied the field – has specified the means and precluded other modes of carrying this out. Marshall: doesn’t think the President has unfettered authority (note: this is 2 years after his sole organ speech)

President’s Defensive War Power: