Class #1: The Foundations of U.S.

National Security Powers

Professor Emily BermanTuesday, August 26, 2014

Tuesday, August 26, 2014

Sources of & Limits on U.S. National Security Power

•Constitutional Text

•Case Law

•Statute [time permitting]Course description Logistics

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Imagine that Congress passes a statute that says “when any agency of the U.S. government detains a suspected terrorist anywhere outside the territorial United States, that suspect must be transferred to the detention center at Guantanamo Bay within 48 hours of his detention.”

Does Congress have the power to enact that statute? If so, under what constitutional provision?

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The Congress Shall Have Power . . . .

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Imagine that Congress passes a statute

that says “when any agency of the U.S.

government detains a suspected terrorist

anywhere outside the territorial United

States, that suspect must be transferred to

the detention center at Guantanamo Bay

within 48 hours of his detention.”

Is the President obligated to comply with

this statute? Why or why not?

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Article II – Presidential Powers

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Article II, § 1, cl. 1:

• “The executive

power shall be

vested in a

President of the

United States of

America.”

Article II – Presidential Powers

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Compare to Art. I § 1: “All legislative Powers herein

granted shall be vested in a Congress of the United

States. . . .”

When text does not provide an answer. . . .

• Political negotiation

• Debate using other

interpretive tools,

e.g., history, intent,

etc.

• (Rarely) Judicial

review

The Limits of Text

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Facts:

• Pres. Truman issued an Executive Order

ordering Sawyer to seize the steel mills

and to operate them under the auspices of

the federal government.

• Truman notified Congress, which took no

action.

• Recently, Congress had rejected an

amendment to the Taft-Hartley Act

authorizing such seizures, favoring

continued bargaining, injunctions, strikes10

“The President’s power to issue the order must

stem either from an act of Congress or from the

Constitution itself. There is no statute that

expressly authorizes the President to take

possession of property as he did here. Nor is

there any act of Congress to which our attention

has been directed. . . .” (25)

Translation: No statute authorizes this act, so it

must be authorized by the Constitution or not at

all.

Holding: The President may not legislate.

Truman has no authority for his action.11

The Government’s Theories

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1. Sources of and constraints on the US government’s national security powers

2. The government’s intelligence collection powers

3. The criminal justice system as a national security tool

4. Non-criminal government interventions (detention, targeting, etc.)

5. Miscellaneous interesting things

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Five Sections

Institutional roles – which branch of

government should have responsibility

in this area, and why?

Counterterrorism exceptionalism – should the legal frameworks developed in other contexts apply ?

The Role of Law – what work is the law doing in this area?

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Themes

Contact information

• Email: eberman@uh.edu

• Office: 228; Office Hours: Tu 4p-6p; Th 10a-12p, or by

appointment

Reading

• Casebook: DYCUS ET AL., NAT’L SECURITY LAW (5TH ED.)

• Additional readings: Supplement & online

Exam

• In-class

• Limited open book

Attendance

• Email one hour prior to class if unprepared or absent

• Each student permitted 3 “passes” 15

More Details