Discussion Topic: National Security Authority and the U.S. Constitution

Background
The words of the U.S. Constitution are an appropriate starting point for this discussion. The first three articles of the Constitution create and empower the legislative, executive, and judicial branches of our federal government. The allocation of authority and responsibility created by the constitutional framework vests the three branches with separate powers, while putting into effect a system in which the powers of each branch are checked and balanced by the powers of the other two.

Article I states that Congress is authorized to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”; “raise and support” and “make Rules for the Government and Regulation” of the armed forces; and “provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections, and repel Invasions.” In addition, Congress is empowered to “make all Laws which shall be necessary and proper” for executing any power conferred by the Constitution. Article II states that the President “shall be Commander in Chief.” However, the Constitution does not define the term Commander in Chief, discuss what powers can be exercised by the Commander in Chief, or describe how these powers relate to the authorities vested in the co-equal branches. Article III fails to provide any guidance as the specific role that the judiciary should play in reviewing and resolving cases and controversies arising in the national security context.

While our 230 years of history as a nation has not given us clear answers to the questions we now face, our collective experience has engendered some lasting principles that should serve as our guide. Among these is the guidance of Justice Jackson in a 1952 U.S. Supreme Court opinion striking down an action taken by President Truman during the Korean War (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579). The President asserted a national security justification for the action. The Court found that such a justification, even during armed conflict, did not excuse a President’s failure to comply with a procedure established by Congress in a lawfully enacted statute. In an opinion concurring with the majority, Justice Jackson wrote, “while the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

Recent American history has witnessed a steady shifting of power from the Congress to the President in matters related to the development and execution of national security policies. While there appears to be much support within the academic world for the proposition that the framers intended for the Congress to have the sole power to authorize war, over the past fifty years presidents of both parties have directed U.S. forces to engage in combat operations without an explicit Congressional declaration of war.

Even beyond the fundamental decision to commit to a war, various polices pursued by the President have fueled the debate about checks and balances which can and should exist on the power of the Commander in Chief to execute a war on terror. For example, the President’s implementation of an electronic surveillance program conducted without judicial involvement and apparently outside the context of a statutorily-created process designed to govern such surveillance has created substantial controversy.

While the Constitution does not specifically provide for judicial review of the actions of the other branches of government, it is well settled that such a role for the judiciary is an important part of our system of checks and balances. That said, in exercising such authority in the national security context, courts have been exceedingly deferential of the judgments made by the other branches. The courts do not wish to substitute their judgments for those of our elected officials, particularly on matters requiring specialized knowledge and expertise. However, as Justice O’Connor wrote in a 2004 case involving the balance between personal liberties and national security after 9/11, “"a state of war is not a blank check for the president when it comes to the rights of the nation's citizens" (Hamdi v. Rumsfeld, 542 U.S. 507).