Executive Power and National Security Power
The constitutional text governing national security law is notoriously underspecified. The first thing the Constitution does after vesting “the executive power” in the President is to name the chief executive “commander in chief of the Army and Navy of the United States” and of the state militias “when called into the actual service of the United States.” After that, clauses granting specific powers to the President are few and far between. If two thirds of the Senate concurs, the President can “make treaties.” “On extraordinary occasions,” the President can convene both houses of Congress. The President has an overarching obligation to “take care that the laws be faithfully executed” and must take an oath to “preserve, protect and defend the Constitution of the United States,” perhaps implying a grant of power to do so. When it comes to Article II powers that plausibly bear on national security, that’s more or less it.
This lack of particularized authority creates two related problems. First, the federal government has no general police power to promote the public welfare; rather, it possesses only specific and limited powers. Just as Congress can only enact statutes pursuant to a specifically enumerated or implied constitutional power, presidential action must likewise be grounded in some constitutional authority. Second, the defining role of the executive in US constitutional governance is to execute – to perform tasks assigned by statute or the Constitution and thereby to serve 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 US constitutional practice.
This chapter will 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.
Publication Information & Recommended Citation
Kent, Andrew and Julian Davis Mortenson. "Executive Power and National Security Power." In The Cambridge Companion to the United States Constitution, edited by Karen Orren and John W. Compton, 261-91. Cambridge Companions. Cambridge: Cambridge University Press, 2018. Available at SSRN: https://ssrn.com/abstract=2824416 or http://dx.doi.org/10.2139/ssrn.2824416