Foreign and domestic policy designed to protect the independence and political and economic integrity of the United States. The constitutional and legal powers granted to government that provide both domestic and global security.
It has been said that the laws are no more and no less than what the courts will enforce. The Supreme Court has often avoided deciding a case on any ground that touches constitutional issues. Though vested with the power to interpret the law and the U.S. Constitution, the federal courts confront issues of national security under significant procedural restraints. Some of these are described in the Constitution itself, while others have developed out of political and administrative necessity. Taken together, they contributed to the lack of precise boundaries between the executive and legislative branches in the distribution of foreign policy powers.
Article III, section 2, of the Constitution limits the jurisdiction of federal courts to cases and controversies.
The two principal writers of The Federalist
The federal courts have historically exercised restraint when deciding issues touching on national security. Yet, one legal question has been consistently appealed to the judicial branch: the extent of presidential power absent congressional authorization when faced with threats to national security. During the Civil War
However, when a conflict touches domestic issues and there is a strong assertion of power by Congress, the Court has given the president less latitude. During the Korean
The aftermath of World War II saw dramatic shifts in international relations that had a profound impact on U.S. national security. The United Nations charter, ratified and put into effect in 1945, created a system of collective security that brought all member nations together to seek diplomatic, economic, and military solutions to solve crises and conflicts. In 1949 the United States joined the North Atlantic Treaty Organization to provide a single unified defense force for the North Atlantic region. These legal commitments, coupled with the presence of permanent standing armies stationed on foreign soil, changed the balance of war power between the president and Congress. The Soviet Union’s demonstration of nuclear capability and the expanded U.S. role overseas enhanced the president’s role as commander in chief and his constitutional power to “repel sudden attacks.” The qualities of an effective president championed by Alexander Hamilton energy, unity, secrecy, and dispatch became necessary components of presidential power in the nuclear age.
As the undeclared war in Vietnam
One of the ways in which Congress followed the advice of the Court was through passage of the War Powers Act in 1973
When personal rights and liberties have come into conflict with national security claims, the federal courts have usually sided with the government. Despite the clear wording of the First Amendment (“Congress shall make no law…”), the Court has never held to a literal interpretation of the expression’s guarantees of speech, press, assembly, and petition. Instead, it has sought to determine the legal boundaries of where the government’s right to restrict expression begins and constitutional protections end. Historically, these questions reached the Court during or immediately following times of war or national crisis and presented some of the greatest challenges to the constitutional framework of government.
The first major challenge to civil rights and liberties based on security concerns occurred seven years after ratification of the Bill of Rights by the states when Congress passed one of the most restrictive laws ever written, the Sedition Act of 1798
Sixty years later, the Court openly challenged the power of President Lincoln to suspend the writ of habeas corpus (a court order directing an official who has a person in custody to bring the prisoner to court and to show cause for his or her detention). When Lincoln refused to accept the writ, the Court did not force a confrontation with the president (Ex parte Merryman, 1861). When the Court sought to clarify the role of military courts and strengthen the constitutional guarantees of a fair trial after the Civil War (1861-1865) in Ex parte Milligan (1866), Congress passed legislation limiting the Court’s jurisdiction to hear cases involving military
As World War I (1917-1918) began in Europe, Congress passed the Espionage Act of 1917
Following the Japanese attack on Pearl Harbor in 1941, President Franklin D. Roosevelt issued an executive order authorizing “military zones” in which curfews and restrictions of movement could prevent espionage and sabotage. Congress followed with legislation affirming Roosevelt’s orders and providing criminal penalties for their violation. Legal challenges to these laws relocating and interning Japanese Americans did not prevail. The Court, by wide margins, affirmed laws concerning curfews (Hirabayashi v. United States, 1943) and internment (Korematsu v. United States, 1944).
National security concerns did not cease with the close of World War II. In rapid succession, the fall of mainland China to communism, the detonation of an atomic weapon by the Soviet Union, and the war in Korea
During the Vietnam War (1965-1973) and the 1960’s, cases based on rights of symbolic expression came before the Court. In United States v. O’Brien
The Court on occasion ruled against broad claims of presidential power and prerogative based on national security claims. In the 1970’s, as the Vietnam War was winding down, The New York Times was sued by the government to prevent the publication of the Pentagon Papers, which documented U.S. military strategy in Southeast Asia. In New York Times Co. v. United States
In early 1991 during the war in Iraq, military authorities placed significant restrictions on both television and print media. Most reports from the field had to be cleared by military personnel. However, in late 1992 U.S. military forces took part in a United Nations operation to protect humanitarian assistance to Somalia. Throughout the conduct of the operation, the news media had nearly complete freedom of movement and reporting.
For a comprehensive survey of Court cases and a discussion of the political and social contexts in which they were decided, see Lee Epstein and Thomas G. Walker’s Constitutional Law for a Changing America: Rights, Liberties, and Justice (5th ed. Washington, D.C.: CQ Press, 2004). The United States and the International Criminal Court: National Security and International Law (Lanham, Md.: Rowman & Littlefield, 2000), edited by Sarah B. Sewall and Carl Kaysen, is a collection of articles examining the relationship between national security and international crime. Norris Smith and Lynn M. Messina’s Homeland Security (New York: H. W. Wilson, 2004) contains twenty-eight articles reprinted from newspapers and magazines about aspects of national security, terrorism, and civil liberties. Important to any study of legislative/executive relations is the first commentary on the Constitution, The Federalist, which is contained in The Federalist Papers (New York: New American Library of World Literature, 1961), edited by Clinton Rossiter. Note especially Hamilton’s treatment of the presidency and executive power in Nos. 70 to 78. Abraham Sofaer’s War, Foreign Affairs, and Constitutional Power (2 vols. Cambridge, Mass.: Ballinger, 1984) discusses the complexities of squaring foreign policy with constitutional dictates. Harold Koh’s The National Security Constitution (New Haven, Conn.: Yale University Press, 1990) argues that many national security issues--especially the definition of “war”--are not political questions and should be reviewed by the Court. For a comprehensive discussion of all aspects of international and constitutional law, see John Norton Moore, Frederick Tipson, and Robert Turner’s National Security Law (Durham, N.C.: Carolina Academic Press, 1990). See chapter 17, “The Constitutional Framework for the Division of National Security Powers,” in The Constitution and the Conduct of American Foreign Policy, edited by David Gray Adler and Larry George (Lawrence: University Press of Kansas, 1996), which brings together fourteen essays on law and policy. John Hart Ely’s War and Responsibility (Princeton, N.J.: Princeton University Press, 1993) includes a treatment of policy making, public opinion, and the role of Congress during the Vietnam War. An assessment of Ely’s work that provides an examination of constitutional interpretation can be found in “War Powers: An Essay on John Hart Ely’s War and Responsibility” by Philip Bobbitt, Michigan Law Review 92 (May, 1994). For an in-depth treatment of the Youngstown case and a study of presidential power and constitutional constraints, see Maeva Marcus’s Truman and the Steel Seizure Case (Durham, N.C.: Duke University Press, 1994).
Curtiss-Wright Export Corp., United States v.
Foreign affairs and foreign policy
Schenck v. United States
War and civil liberties
War Powers Act of 1973
World War I
World War II
Youngstown Sheet and Tube Co. v. Sawyer