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Topic Indeed for some lwyers the study of the seprtion of powers is the study of government

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In the Common Defense: National Security Law for Perilous Times

James E. Baker

Constitutional Framework

The Constitution incorporates three structural limitations, or checks, on the exercise of the executive’s national security authority. First, the political branches share national security power and they each exercise separate powers as reflected in Articles I and II. Second, the vertical separation of powers, or principle of federalism, divides governmental responsibilities between the federal government, which exercises enumerated constitutional authorities, and the states, to which are reserved the remaining or residual authorities, including, most notably for national security, the police power. Third, the Bill of Rights, the first ten amendments to the Constitution, defines a zone of individual liberty within which the government acts with prescribed and, in some cases, limited authority. This chapter addresses the separate and shared national security powers of the federal government. There are many books on this topic. Indeed, for some lawyers the study of the separation of powers is the study of government. My objective is to convey the essential ingredients of the law. If I have found new ground, it is in recognizing the role of informal practice in defining the substance, process, and practice of constitutional law. The successful national security lawyer must meaningfully participate in this informal practice as much as he or she participates in the formal practice of constitutional law. I also recognize (acknowledge may be more accurate) that when the Constitution addresses national security, black-letter law is elusive and constitutional theory pervasive. By “black-letter law” I mean statements of law that lawyers generally agree are binding and enforced through effective political, administrative, or criminal sanction. Nonetheless, where national security is concerned, scholars and government practitioners often present theory as if it were black-letter law. This chapter and this book are intended to assist the reader in distinguishing between agreed “law” and constitutional theory and assertion. The chapter starts with the sources of constitutional law, including the legal benchmarks that inform the operation of the separation of powers between the political branches. Constitutional analysis starts with the text of the Constitution. The chapter then addresses supplementary sources of law, including case law, and legislation that reects the constitutional views of one or both political branches, at least at a moment in time. The discussion of case law focuses on two enduring Supreme Court cases addressing the separation of powers, Curtiss-Wright and Youngstown. In Youngstown alone, one nds many of the principles of constitutional analysis, such as Justice Frankfurter’s “gloss” and the ageless tension between plain text and evolving context. In Chapter 5, which deals with electronic surveillance, the reader will see how these principles might resonate in practice. Readers will recognize that these are but two cases out of the roughly ten Court cases that, in context, should be part of the standard national security kit.1

Collectively, this material represents the body of case law with which every national security generalist should be familiar. However, for reasons I explain, denitive constitutional cases are rare. Totten, for example, an 1875 case, remains good law and is frequently cited, as is the 1901 case involving the seizure of a shing vessel during the Spanish-American War, the Paquette Habana. The second half of the chapter observes the operation of the separate and shared powers in practice. How does constitutional law actually function? What lessons and principles can we extract from this practice? Here, the book identies the importance of the informal operation of law, unseen and often undocumented, but critical to the fabric of constitutional law. The chapter considers as well the role of history and theory in constitutional interpretation, and the importance of moral integrity in upholding the rule of law. The Constitution offers opportunity, not guaranty. Because much is unsettled in this area, and intentionally so, and because the legal landscape permits broad, even unchecked, claims of constitutional authority, legal values as much as the law govern the practice of national security law.

A. SEPARATE AND SHARED POWERS: SOURCES

OF CONSTITUTIONAL LAW

1. Text

As the president’s national security lawyer, I was initially surprised how often my legal analysis started, and often ended, with the text of the Constitution. This reected the vitality and foresight in the drafters’ choice of text. However, it also reected a dearth of accepted and binding sources of constitutional interpretation. Whereas, for example, the Supreme Court has issued multiple opinions interpreting the Fourth Amendment, there are far fewer opinions addressing specic applications of national security law. Thus, where the president’s authority to place U.S. forces under foreign operational control was at issue, it was the president’s constitutional designation as commander in chief that was cited, along with 200 years of historical practice involving Lafayette, Foch, and Mountbatten.2

Where the president sought to appoint a sitting member of Congress as U.S. ambassador, the legal issue presented revolved around the ineligibility clause. Could the president appoint a sitting member of Congress as an ambassador during a congressional term in which the member had voted to increase the salary, or emolument, of ambassadors?3

In both cases, the essential law was found in the Constitution. In the rst instance, the drafters anticipated the potential for disputes regarding the president’s authority to command troops in defense of the nation absent congressional authorization. Thus “make war” was changed to “declare war” in describing Congress’s war power. This left the president, as commander in chief, free to make war in defense of the country, as well as to exercise whatever additional and inherent authority that clause might provide. Many of the drafters served in the military during the Revolutionary War, or oversaw military operations as members of the Congress, and surely understood the role that foreign commanders – Lafayette, Rochambeau, and von Steuben, for example – played in the conict while commanding colonial troops. With respect to the ineligibility clause, commentators generally agree that the Constitution’s drafters were contemplating an English practice where members of Parliament might create and accept lucrative appointments from the king while serving as members of Parliament, an obvious threat to the independence of the Parliament. However, in addressing the practice of kings, the drafters anticipated a range of potential conicts that might occur centuries later. Thus, whether the drafters could have foreseen the specic instance that arose, they furnished the applicable law in the Constitution. It was the Constitution, therefore, that prompted the president (along with his senior advisors) to ask rst, and appoint second. The rst source of U.S. national security law, therefore, is the text of the Constitution. One need read no further than the preamble to appreciate that national security is a paramount constitutional function and a shared function. Thus, it is the “people of the United States, [who] in order to provide . . . for the common defence . . . do ordain and establish this Constitution for the United States of America.” Enumerated responsibilities to accomplish this common goal follow in the subsequent Articles.

Article I sets out “the legislative Power.” Section 8 states inter alia that “Congress shall have power”: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” “To lay and collect Taxes . . . to . . .provide for the common Defence;” “To dene and punish. . . Offenses against the Law of Nations;” “To raise and support Armies;” “To provide and maintain a Navy;” “To make Rules for the Government and Regulation of the land and naval Forces;” “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions;” “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States;” and “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Congress has as well the more general enumerated power to raise taxes and appropriate money and to pass such laws as are “necessary and proper” to effectuate its enumerated authorities. This latter power, for example, is cited

as a constitutional basis for the War Powers Resolution. The president’s enumerated powers include those as commander in chief and chief executive as well as those express authorities dealing with foreign affairs, such as the power to appoint ambassadors, receive ambassadors, and to make treaties, with the advice and consent of the Senate. The president is also charged “to take care that the laws be faithfully executed.” From enumerated text national security lawyers, judges, and academics identify derivative or implied authorities. For example, from the commander-in-chief clause, the chief executive clause, and the president’s foreign affairs powers derives the president’s authority over the intelligence instrument as well as his authority not only to command the armed forces in times of conict, but arguably as well, authority to initiate conict. From these same authorities, the argument progresses, comes the president’s plenary (meaning exclusive in this context) authority over state secrets. For without state secrets the president could not effectively command the armed forces, engage in diplomacy, or conduct intelligence. In the legislative realm, from Congress’s express and plenary authority to raise revenue (“such bills originating in the House”) derives the power to authorize and then oversee the manner in which the money is in fact spent. A broad textual underpinning for derived authority is found in Article I’d threshold sentence creating the “legislative Powers” and in the necessary and proper clause, which grants to the Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” However, as the War Powers Resolution illustrates, what qualies as a “proper” exercise of such authority is the subject of debate. More generally, how much authority may or should in fact derive from particular clauses remains a source of ongoing tension between the branches. The tension is intentional. The drafters created a system of separate powers as a mechanism to discourage and, one hopes, prevent one branch from accumulating too much control or even absolute control over the instruments of authority. But at the same time, the drafters created shared or interlocking powers as a mechanism to encourage each political branch to check and balance the authority asserted by the other.

Statutory Gloss and Interpretation Constitutional law in the form of constitutional interpretation is also found in statute. For example, laws such as the War Powers Resolution, the National Security Act of 1947, as amended, and the Foreign Intelligence Surveillance Act (FISA) reect legislative (and in some cases executive) views regarding the allocation and reach of constitutional powers, at least at the time of passage. This reection may come in the form of positive recognition of an executive power to act. Or, it may come in the form of language delimiting by substance or process the executive’s discretion. One need not agree, or concede, that such statutes accurately portray constitutional law. Each act is the product of constitutional compromise and conict and in most cases expresses the truism that each should be read consistent with the Constitution. But they do offer insight, in the absence of other vehicles, into constitutional perspectives. The most controversial of these statutes is the War Powers Resolution (1973), which purports to regulate the president’s use of the military instrument through prospective exercise of Congress’s “war power.” In theory, the Resolution is procedural, intending to “fulll the intent of the framers...that the collective judgment of both the Congress and the president will apply to the introduction of the United States Armed Forces into hostilities.” By definition, the statute could not create constitutional authority that did not already exist nor terminate authority that did exist. Nonetheless, the Resolution’s sixty-day clock suggests that the president possesses some degree of independent constitutional authority to resort to force, at least for sixty days.4

Of course, this same language purports to constrain whatever authority the president has, by requiring the withdrawal of U.S. armed forces from hostilities after sixty days, absent express congressional authorization (ninety days if it is impracticable for the president to safely withdraw troops at the sixty-day mark). The Resolution’s proponents argue that the sixty-day clock is a “necessary and proper” exercise of congressional authority to create the conditions for Congress to afrmatively exercise its authority over decisions of war and peace. Although the president may have broad authority to engage in emergency hostilities, the argument goes, surely that authority does not extend past sixty days absent some afrmative exercise of Congress’s own authority. Opponents return re, noting that the Resolution cannot otherwise alter the Constitution’s allocation of inherent authority, which is found in the commander-in-chief clause among other places, and is evidenced in long-standing unilateral executive resort to the military instrument. The Resolution was passed over the president’s veto, and practitioners and scholars have debated the constitutional validity of the sixty-day clock ever since. In contrast, lawyers no longer seriously debate the constitutionality of the requirement that the “President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities.”5

This language recognizes, without dening its scope, that the decision to resort to war in some manner implicates shared responsibility. But it also contains its own constitutional trap door, which may account for the executive’s acceptance of its terms. This same language is also a good example of how lawyers may agree on constitutional principle, but not on constitutional fact. The president must consult “in every possible instance.” Through a legislative lens, this language might suggest consultation in every instance short of a surprise nuclear exchange. But through an executive lens, it might reect exception in instances in which secrecy and surprise are paramount to military success. Indeed, that is how it has been applied. Likewise, to a member of Congress wearing his constitutional rather than political hat, “consult” may imply a sharing of views before a decision is taken, while to a president it means little more than a notication with opportunity to comment. (These arguments are explored further in Chapter 8.) In contrast to the War Powers Resolution, a different constitutional approach is found in the National Security Act’s covert action reporting provisions. In response to competing executive and legislative positions, the National Security Act contemplates three separate reporting scenarios, including (1) written notication to the full committees prior to initiation of an activity; (2) limited and oral notication to eight or more congressional leaders in “extraordinary circumstances”; as well as, (3) the prospect of retroactive notication in undened, but rare circumstances, presumably exceeding “extraordinary circumstances.” In other words, the branches agreed to disagree and to work out their differences in context. In summary, one should not overlook that statutes reect constitutional views and not just legislative law. But where there are disputes over the meaning of constitutional text, these disputes tend to migrate into statute. In the case of covert action this was accomplished through compromise – with each branch agreeing to disagree on fundamental positions and agreeing to address constitutional issues in political and policy context. In the case of the War Powers Resolution, the law incorporates only one view, the legislative view of the 93rd Congress, which has been met with sustained executive opposition.

Case Law. Constitutional law is also found in case law. The two most important structural cases remain Youngstown and Curtiss-Wright. The specic holdings of these cases have long been overtaken by the ascension to constitutional doctrine of what would be viewed as dicta in other cases (those portions of opinions that are viewed as nonbinding commentary as opposed to binding statements of law). The cases are signicant in locating and dening constitutional perspective. They also illustrate recurring facets of constitutional analysis and interpretation. In 1936, the Curtiss-Wright Export Corporation was prosecuted for selling fteen machine guns to Bolivia in violation of an executive proclamation proscribing such transfers. At the time of the sale, Bolivia was engaged in a conict with Paraguay over control of the Chaco Boreal, a swampy region abreast the Paraguay River. Land-locked Bolivia had sought control of the contested region in an effort to gain access to the Atlantic Ocean along the Paraguay River. The Chaco was also (erroneously) thought to hold substantial oil reserves. The three-year war resulted in the loss of more than 100,000 lives to combat and disease, representing a substantial proportion of the male populations in each country. As a result, in 1934, Congress passed a Joint Resolution authorizing the president to embargo arms shipments to the region if the president nds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conict in the Chaco may contribute to the reestablishment of peace between those countries.6

The Joint Resolution provided for nes and imprisonment for whoever violated such a prohibition. That same day, President Roosevelt issued a proclamation giving effect to the law and delegating to the secretary of state the power of proscribing exceptions and limitations to its application. The Curtiss-Wright Corporation soon found itself on the wrong side of the law. The company challenged its conviction on among other grounds that the Joint Resolution constituted an invalid delegation to the president of the legislative power to dene the criminal law. The Court disagreed, concluding that there is sufcient warrant for the broad discretion vested in the president to determine whether the enforcement of the statute will have a benecial effect upon the reestablishment of peace. . . whether he shall. . . bring the resolution into operation; . . . when the resolution shall cease to operate; and to prescribe limitations and exceptions. . . . The Court further noted, It is important to bear in mind that we are here dealing not alone with an authority vested in the president by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the eld of international relations – a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.7

Today this might seem a straightforward analysis tting within the paradigm subsequently stated and celebrated in Justice Jackson’s Youngstown concurrence. In the rst sentence above, the Court recognizes that the president is acting pursuant to delegated congressional authority to proscribe. In other words, the president is acting pursuant to both legislative and executive authority. In present context the president does this all the time. In the case of the International Economic Emergency Powers Act (IEEPA), for example, presidents almost routinely declare “emergencies” pursuant to Congress’s delegated authority to criminally proscribe transactions with designated countries or entities. However, in the second sentence, the Court also recognizes that the president is exercising a measure of independent – exclusive – authority in the eld of foreign relations. Both powers are subordinate in some manner to “applicable provisions of the Constitution.” Note that the Court does not hold that the president can proscribe federal criminal law in the absence of an afrmative congressional authorization setting out the parameters for executive action. This might have been the last heard ofCurtiss-Wrightand fteen machine guns; however, the case is identied with Justice Sutherland’s broad theory of executive authority over foreign affairs, which he suggests is derived from the nation’s sovereignty and not enumerated constitutional authority. The opinion offers ample quotation for the executive branch brief. First, the president is “the sole organ of the federal government in the eld of international relations.” Justice Sutherland continues, he, not Congress, has the better opportunity of knowing conditions which prevail in foreign countries and especially is this true in time of war. He has his condential sources of information. He has his agents in the form of diplomatic, consular, and other ofcials. This is powerful language if you advise the president on foreign relations or intelligence law. This language represents a rhetorical zenith in Court rulings interpreting the executive’s foreign affairs power. But read on to the second point. The investment of the federal government with the power of external sovereignty did not depend upon afrmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Is the power of the executive to conduct foreign relations and wage war extra-constitutional?

On the one hand, the attraction of this theory is apparent, at least to executive lawyers. If the president’s authority as the sole organ of the nation in external affairs is derivative of the nation’s sovereignty and not the Constitution, then arguably the president’s exercise of this authority is outside the reach of congressional or judicial checks and balances. This is particularly so if one places theoretical emphasis on the separation of powers among the branches rather than on the interlocking nature of the branches’ responsibilities. On the other hand, this same text can be read as a legal truism. “Under international law, a state is an entity that has a dened territory and a permanent population, under the control of its own government, and that engages in, or has capacity to engage in, formal relations with other such entities.”8

Thus, for the United States to qualify as a state, its national government would have to hold the capacity to conduct international relations, including the making of treaties, and the conduct of war. This principle is indeed extraconstitutional. In international law, external sovereignty does not depend on internal governing mechanisms, unless the internal organ asserting the capacity to conduct foreign relations does not in fact possess the domestic constitutional wherewithal to do so. But Justice Sutherland was addressing the federal government generally. Moreover, by denition, the federal government’s competence to conduct foreign affairs is necessarily subject only to the applicable provisions of the Constitution. In Youngstown, the Court left no doubt as to the Constitution’s applicability. In 1952, during the Korean conict, President Truman ordered the attorney general to seize U.S. steel mills in response to an impending labor strike. The president defended his decision on the ground that steel was an essential commodity on which the war effort depended. The commander in chief, the government argued, possessed inherent authority to ensure its supply. The Youngstown Sheet and Tube Company and other affected industry members sued Secretary of Commerce Charles Sawyer, seeking a judicial bar to enforcement of the order. The Court ruled against the president, holding that the president could not, as a matter of military authority, take possession of private property in order to keep labor disputes from stopping steel production. Justice Black, writing for the Court, stated Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power to take possession of private property in order to keep labor disputes from stopping production.9

Justice Black also noted that Congress had passed two statutes that would authorize the president to take personal and real property under certain conditions. But the president had not relied on these statutes and could not be said to have exhausted his remedies. More so than Curtiss-Wright, Youngstown is a primer on constitutional interpretation and a reservoir of quotation. There are ve concurring opinions to Justice Black’s short lead opinion as well as Chief Justice Vinson’s dissent joined by Justices Reed and Minton. These opinions spill with the

principles of analysis familiar to the separation of powers debate. Justice Jackson, for example, zeros in on the executive’s reliance on the commanderin-chief authority to derive a broad range of implied authorities. The Constitution did not contemplate that the title Commander in Chief

of the Army and Navy will constitute him also commander in chief of the

country....10

Justice Jackson also sounds a familiar refrain from the war powers debate – the Congress has ample authority to act in the realm of national security; however, the existence of Congress’s authority does not demonstrate the absence of executive authority. The Congress must act to preserve its role in national security matters. Thus, We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its ngers.11

Also found are many of the traditional tools of constitutional analysis. For example, Justice Clark describes the relationship between a specic and a generalized exercise of authority. That where Congress has laid down specic procedures to deal with the type of crisis confronting the president, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the president’s independent power to act depends upon the gravity of the situation confronting the nation. Justice Frankfurter, in turn, introduces the concept of a constitutional gloss on executive power, often cited by executive lawyers in national security

debates involving the military and intelligence instruments. One sees as well in Frankfurter’s concurrence the importance of practice in constitutional analysis. It is an inadmissibly narrow conception of American constitutional law to conne it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive

practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’

vested in the president by s 1 of Art. II.13

In Youngstown, one also feels the ageless tension between those jurists and scholars who nd the source and check on governmental authority in the plain text of the Constitution, and those who interpret the Constitution as a living or evolving document. Justice Douglas, usually associated with the latter view, cautions that the government’s authority ows from the Constitution and the law, not from the necessity of response. But the emergency did not create power; it merely marked an occasion when power should be exercised. The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efciency but to preclude the exercise of arbitrary power.14

Justices Vinson and Jackson respond, stressing that the meaning of the Constitution is found outside its text and is derived in part from the reality of circumstantial interpretation. Subtle shifts take place in the centers of real power that do not show on

the face of the Constitution.15 the Constitution is ‘intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs’ and that ts means are adequate to its ends.’ Cases do arise presenting questions that could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new

situations.16

Justice Jackson’s warning to the Court appears addressed not just to his brethren, but to future generations. Such institutions of free government may be destined to pass away. But it is the duty of the Court to be last, not rst, to give them up. One feels as well the pressure placed on the Constitution and those who wield its authority when national security is at stake. Justice Jackson, recalling his experience as President Roosevelt’s attorney general, describes it well. That comprehensive and undened presidential powers hold both practical advantages and grave dangers to the country will impress anyone whom has served as legal adviser to a President in time of transition and public anxiety. . . . The tendency is strong to emphasize transient results upon policies – such as wages or stabilization – and lose sight of enduring consequences upon the balanced power structure of our Republic.17

This tension is greatest when U.S. lives are directly at risk. Youngstown involved the seizure of steel mills, presenting questions about the taking of private property. Imagine these same tensions played out in a scenario involving a more imminent and direct threat to the physical safety of Americans, like the possible introduction of a pathogen into the U.S. food supply. Justice Jackson also identies and describes the tension presidential lawyers feel to apply the law in good faith, but not to concede an argument, and thus an authority, the president may need later. The president shall be Commander in Chief of the Army and Navy of the United States . . . These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued presidential advisors who would not waive or narrow it by nonassertion yet cannot say where it begins and ends.18

Finally, Justice Frankfurter demonstrates his own humorous knowledge of government. He notes that government is far more complex than most realize. And he was writing before the Department of Homeland Security was established. He also suggests that where government is concerned one ought to check one’s facts for they may not always prove as advertised. Before the cares of the White House were his own, President Harding is reported to have said that government after all is a very simple thing. He must have said that, if he said it, as a eeting inhabitant of fairyland.19

Notwithstanding this reservoir of constitutional wisdom about the practice of government, Youngstown is best known for Justice Jackson’s concurrence in which he presents an essential paradigm of separation of powers law.

1. When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty.

2. When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

3. When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.20

This is not a remarkable statement of law; arguably it merely echoes the eloquent balance found in the Constitution itself. The text describes the legal relationship between the political branches, as applied everyday by executive, congressional, and judicial actors. But the paradigm is important because it is presented in Supreme Court case law, giving lawyers something to cite along with the apparently familiar comfort of black-letter law. And, the paradigm is presented with clarity and eloquence. But note that Justice Jackson’s third category leaves the constitutional door ajar, stating that the president’s power is at its lowest ebb, not necessarily that it is extinguished, as the Court actually held in Youngstown. Youngstown and Curtiss-Wright are often presented as bookends. To the extent one case recognizes presidential power and the other limits it, this is accurate. But they might better be viewed on a continuum with two axes, one moving from the solely external to the solely internal, and one moving from a president acting pursuant to legislative as well as executive authority to a president relying solely on executive authority in the face of a contrary legislative view. Thus, the Court recognized, in the context presented, that the president’s authority is at its zenith not just when he acts consistent with the express will of Congress, but when he acts in the realm of external relations overseas. Conversely, the president’s authority ebbs when he acts contrary to legislative pronouncement and when he is exercising his authority within the United States to effect national security ends. The Court itself has recognized that the Jackson paradigm is not a rigid set of analytic chimneys, but rather occurs along a continuum of factual and constitutional contexts. He great ordinances of the Constitution do not establish and divide elds of black and white.’ Justice Jackson himself recognized that his three categories represented ‘a somewhat over-simplied grouping,’ and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. In the summer of 2006, the Court revisited the Youngstown paradigm in Hamdan v. Rumsfeld. The immediate question presented was whether the president had the authority to try Salim Hamdan before a military commission established by the president at Guantanamo, Cuba. Hamdan, a Yemeni national, was captured in Afghanistan by militia forces and turned over to the United States during hostilities between the Taliban and the United States in November 2001. Hamdan challenged the authority of the military commission on two grounds. First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy – an offense that, Hamdan says, is not a violation of the law of war. Second, Hamdan contends, the procedures that the president has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. A ve-judge majority of the court concluded that the commission “lacks power to proceed because its structure and procedures violate both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions.” The separation of powers question therefore was whether the Congress had authorized such a commission pursuant to the UCMJ, and in particular through operation of Articles 21 and 36. If not, could the president, pursuant to his authority as commander in chief, et al., nonetheless establish such a commission?

In this context, the case is signicant for three reasons. First, the Court addressed the substantive question presented, rather than applying doctrines of national security deference, avoidance, or by addressing the case on the ground that appellant lacked standing, as the three justices in dissent urged.

Second, the Court applied the Youngstown framework, validating that framework fty years later and in a new and challenging context. Moreover, in doing so the Court appeared to repudiate the line of emphasis in Curtiss-Wright dicta regarding the president’s inherent powers. The Court left little doubt where it stood on the concept of extra-constitutional authority. The Court emphasized the shared and interlocking relationship among the powers of the political branches rather than the separate nature of those powers. Exigency alone, of course, will not justify the establishment and use of penal tribunals not contemplated by Article I, section 8 and Article III, section 1 of the Constitution unless some other part of that document authorizes a response to the felt need see also Quirin, 317 U.S., at 25 (“Congress and the president, like the courts, possess no power not derived from the constitution”). And that authority, if it exists, can derive only from the powers granted jointly to the president and Congress in time of war. See id. at 26–29; In re Yamashita, 327 U.S. 1, 11 (1946).22

Third, the Court opened the door to the possibility that in applying Youngstown, the Court had adjusted the paradigm. Recall, that in Justice Jackson’s three circumstances, the third states: When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. In Hamdan, the Court states in footnote 23: Whether or not the president had independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown. The Government does not argue otherwise. This language can be read as a restatement of Youngstown, as suggested by the citation. But it can also be read to signal a subtle shift in the Court’s constitutional analysis. To the extent it represents a shift, it is not clear whether the shift is strictly contextual, that is applying only to military commissions, or whether this represents a shift to theYoungstown paradigm generally. On the one hand, Congress possesses a number of enumerated Article I powers applicable in the commission context that might not apply elsewhere, just as Congress’s commerce power was specially implicated in Youngstown. Among other things, the Congress shall make rules and regulations for the Armed Forces, dene the law of nations, and establish inferior courts. Thus, the Youngstown balance might be struck in a particular manner here, but not elsewhere. On the other hand, the Court has relied on the congressional war power in its footnote. In the end, we do not know whether the author lacked

the votes to develop the note, was applying “case or controversy” principles, or adopted the language for other reasons. The bottom line remains. The Youngstown paradigm remains the essential structural framework in today’s perilous context. Whether the president will in the future nd himself at a low ebb, or out of the water altogether, when confronting Justice Jackson’s third paradigm will depend on the legal and ground facts presented. It will also depend on whether there is an available and effective means to adjudicate the question.




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