Friday, September 9, 2016

Kent and Mortenson Periodize the President's National Security Power

Andrew Kent, Fordham University School of Law, and Julian Davis Mortenson, University of Michigan Law School, have posted The Search for Authorization: Three Eras of the President's National Security Power, which is forthcoming in the Cambridge Companion to the United States Constitution:
The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims of direct constitutional authorization were strikingly modest, and their requests for (and compliance with the terms of) specific statutory and judicial instructions were strikingly precise.

Second, the Civil War. While the authorization principle still dominated as an organizing concept, the executive branch began to invoke very different sources of authority in the face of existential crisis. During the early republic, Presidents had sought national security authorization primarily in the contemporaneous acts of a then-sitting Congress. The Civil War period, by contrast, saw a dramatically increased tendency for the executive branch to respond by seeking authorization in the century-old terms of the Constitution. Predictably, these far more assertive claims triggered severe constitutional controversy.

By the end of the Cold War, the third period discussed here, that constitutional pressure had been alleviated. Essentially, the solution has been for Congress -- drawing on the legacy of the New Deal, World War II and the Cold War alike -- to enact a broad set of permanent and interlocking ex ante statutory authorizations, the collective effect of which is to charge the President with taking virtually any national security action that seems needful. Combined with aggressive statutory interpretation and a large standing military, these statutes have enabled presidents to take an extraordinarily wide range of significant national security measures without seeking particularized, contemporaneous authorization from any other constitutional actor.

The upshot is a constitutional arrangement that relies on remarkably open-ended statutory authorization to mitigate anxieties about both power and constraint -- about the risks of a disempowered presidency in a dangerous world, but also about the risks of letting presidents rely on abstract constitutional text as the sole basis for violent action. While these authorizations don’t purport to constrain the executive branch with anything like the specificity of statutory regimes in earlier eras, their nature as legislative enactments entails a more meaningful possibility of authoritative supervision and even revision via subsequent democratic enactment than the Constitution ever could.