War Powers

The Search for Authorization: Three Eras of the President’s National Security Power

By Andrew Kent, Julian Davis Mortenson
Wednesday, October 19, 2016, 9:52 AM

The constitutional text governing national security law is full of gaps and oversights. This is particularly true with regard to the President. Notwithstanding occasional claims of extra-constitutional, emergency power by Congress or presidents, the basic theory and practice of the Constitution is and always has been that the federal government possesses only enumerated or implied constitutional power. And the defining role of the executive in U.S. constitutional governance is to execute—to perform tasks assigned by statute or the Constitution and thereby to act as the active arm of the popular will as it has been expressed through positive law. Both of these traditions complicate national security action by a chief executive who is armed with such sparse constitutional text, a difficulty with which American presidents have wrestled since the first generation of U.S. constitutional practice.

We have released a new paper, forthcoming as a chapter in the Cambridge Companion to the United States Constitution, which takes on the tensions created by these features of American constitutionalism and presidential practice in the national security area. As befits the mission of the edited volume, our piece is a short analytical-historical one, intended to stake out and sketch some evidence for our take on an important constitutional topic, but not exhaustively defend it.

We assess the national security powers of the President through the lens of what we call the authorization principle, which requires not just presidents but all federal actors to identify particularized authority for their actions. In combination with the authorization principle, gaps in constitutional text have often presented an acute dilemma for presidents charged with defending the nation. Focusing on three periods in American history, our chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, Presidents Washington and Adams responded to the authorization dilemma by seeking highly particularized, bespoke authorization from the two other constitutional branches of government. We examine the Whiskey Rebellion, the Neutrality controversy, and the Quasi-War. 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. Because of space limitations, we do not in our chapter catalogue the legal and historical scholarship with which we agree and disagree. But clearly we take different views of Article II and of the actions and underlying constitutional theories of the Washington administration than is found in scholarship by scholars like John Yoo. (For a lengthy critique of Yoo on executive power by one of us, see here.)

Second, we turn to the Civil War. Given the existential upheaval of this period, it is perhaps unsurprising that it came to be defined by far more aggressive presidential claims that the Constitution itself grants a range of inherent ex ante authorities. While the authorization principle still dominated as an organizing concept, the sources of authority actually invoked were very different. During the early republic, national security authorization had been sought primarily in the contemporaneous acts of a then-sitting Congress. The Civil War period saw a dramatically increased tendency to seek authorization in the century-old terms of the Constitution. The chapter focuses on four presidential decisions to act without specific legislative authorization:  the decisions to treat the Confederacy as subject to war powers, to blockade Southern ports, to suspend habeas corpus, and to emancipate slaves under the war power. (For a longer treatment of some of these issues by one of, see here.)

Predictably, the more assertive posture of the Civil War Presidency triggered severe constitutional controversy at each point described above. We implicitly take issue with scholarship that has portrayed the Lincoln presidency as “imperial” or dictatorial,” however, because we see Lincoln as having accepted the basic contours of a balanced system in which Congress played the dominant policy-setting role and the federal courts could and would review the legality of many presidential actions, even in the national security space.

By the end of the Cold War, the third period we discuss, the constitutional pressure had been alleviated. Essentially, the solution has been for Congress 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. To make this point, we focus on three illustrative episodes: the targeting and detention of suspected terrorists pursuant to Congress’ 2001 Authorization to Use Military Force; the use of power under the International Emergency Economic Powers Act (IEEPA) to both impose and lift sanctions on foreign powers; and the interpretive inversion of the War Powers Resolution to claim authorization for low-level presidential military interventions overseas.

The upshot in the current era 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.