National security Summary

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.Cases and controversies The courts are thus prohibited from providing advisory opinionsAdvisory opinions that are, in reality, hypothetical in nature. In the 1979 Taiwan treaty case,Treaties members of Congress challenged the constitutionality of President Jimmy Carter’s decision to repeal a security treaty with Taiwan to establish diplomatic relations with the People’s Republic of China. Goldwater v. Carter[case]Goldwater v. Carter[Goldwater v. Carter] (1979) was dismissed, but the Court could not agree upon the proper grounds for its decision. Justice Lewis F. Powell, Jr., argued that the case should be dismissed because the level of conflict between the branches had not reached the level of “controversy.” He stated that a dispute between Congress and the president is not ready for judicial review until each branch has taken action asserting its constitutional authority. Also, the majority of the differences between the two branches turn on political rather than legal considerations. Therefore, the judicial branch should not decide issues affecting the allocation of power between the president and Congress until the political branches reach a constitutional impasse. A Court receptive to such challenges would encourage small groups or even individual members of Congress to seek judicial resolution of issues before the normal political process resolves the conflict.

The two principal writers of The FederalistFederalist, The[Federalist] (1788), Alexander Hamilton and James Madison, agreed that the national government gains significant power in times of war and emergency. When national defense was at issue, Hamilton declared that the grant of power should exist without limitation because it was impossible to foresee or to define the extent to which such powers might be needed. Madison concurred, stating that it was futile to oppose constitutional barriers to the impulse of self-preservation. In Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919), Justice Oliver Wendell Holmes affirmed these priorities when applying them to questions of First Amendment speech protections. “When a nation is at war many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”War and civil liberties

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 WarCivil War, President Abraham Lincoln ordered the blockade of southern ports without prior approval from Congress. The Court’s 5-4 ruling in the Prize Cases[case]Prize Cases[Prize Cases] (1863) sustained the president’s action on the ground that he was legally empowered to recognize hostile acts of rebels or from a foreign nation as acts of war and could respond without a congressional declaration.

PresidentialPresidential powers primacy in national security policy was further enhanced in the years preceding World War II (1941-1945). In United States v. Curtiss-Wright Export Corp.[case]Curtiss-Wright Export Corp., United States v.[Curtiss-Wright Export Corp., United States v.] (1936), the Court determined that foreign affairs, with their “important, complicated, delicate, and manifold problems,” are best left to the president alone. “Into this field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” The president is to be afforded a “degree of discretion” by Congress in foreign policy that would not be admissible if domestic affairs alone were at issue. A year later in Belmont v. United States, the Court held that the conduct of foreign relations, including the recognition of foreign governments, is exclusively an executive function.

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 KoreanKorean War conflict, President Harry S Truman claimed the powerWartime seizure power to seize the nation’s steel mills based on his powers as commander in chief and through his inherent powers as chief executive. In Youngstown Sheet and Tube Co. v. Sawyer[case]Youngstown Sheet and Tube Co. v. Sawyer[Youngstown Sheet and Tube Co. v. Sawyer] (1952), the Court disagreed, handing Truman an embarrassing defeat and invalidating his claim to emergency powers. However, only Justices Hugo L. Black and William O. Douglas held that the president had no such inherent powers in protecting the national interest, and only Black took the position that the president’s power must stem either from an act of Congress or from the Constitution itself. The lack of a clear majority opinion left open the question of the scope and limits of presidential prerogative in times of war and crisis.

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 VietnamVietnam War became both lengthy and unpopular in the late 1960’s, the delegation of power from Congress to President Lyndon B. Johnson (through the passage of the Gulf of Tonkin Resolution) came into question. Members of Congress brought suit against the president, challenging his ability to conduct a war without a formal congressional declaration (Holtzman v. Schlesinger, 1973). The Court predictably declined to intervene and encouraged Congress to exert its ample constitutional powers to confront presidential policies and actions.

One of the ways in which Congress followed the advice of the Court was through passage of the War Powers Act in 1973War Powers Act of 1973 over the veto of President Richard M. Nixon. Its procedural mechanisms calling for consultation with Congress prior to placing military forces into hostilities and regular reports thereafter have been uniformly denounced by presidents as unconstitutional. When members of Congress have brought suit seeking enforcement of the War Powers Act (Crockett v. Reagan, 1982), the federal courts have rejected their claims. Again, the courts determined that such controversies are best left to Congress acting through the passage of statutes. In 1990 fifty-four members of Congress sought an injunction against President George Bush using military force against Iraq. The decision of the Washington, D.C., district court stated that the case lacked ripeness, as the plaintiffs represented only 10 percent of the members of Congress. This left open the possibility that if a majority of Congress had joined in the suit, it might have been granted. The 1999 conflict in Bosnia saw the House of Representatives debating a motion to issue a formal declaration of war. Though the proposal was rejected, it highlighted the ongoing struggle within Congress to define war and to confront presidential initiative abroad.

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 1798Sedition Act of 1798. The law forbade any person from writing, printing, or uttering anything “false, scandalous, or malicious” against the government, its officials, Congress, or the president. The passage of the act coincided with an undeclared war with France (1798-1800) that saw Congress debate the possibility of war and pass a number of laws to place the country on a war footing.

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 militaryMilitary and the Court trials.

As World War I (1917-1918) began in Europe, Congress passed the Espionage Act of 1917Espionage Act of 1917, prohibiting interference or obstruction with military operations and activities. One year later, Congress passed the Sedition Act, prohibiting “the uttering of, writing, or publishing of anything disloyal to the government, flag, or military forces of the United States.” Close to one thousand citizens were arrested and convicted under these statutes. In Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919), the Court upheld these convictions while pronouncing the “clear and present danger” doctrine. In the decade that followed, the Court upheld state convictions based on laws designed to suppress socialist and subversive organizations (Gitlow v. New York, 1925; Whitney v. California, 1927). Using a less restrictive “bad tendency test,” the Court declared that freedom of speech does not confer an absolute right to speak and that a state may take steps to prevent its government’s “overthrow by unlawful means.”

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).Japanese American relocation

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 KoreaKorean War brought about concerns about communist influence in U.S. government and life. Congress, claiming broad powers to investigate, commissioned the House Un-American Activities Committee to determine if CommunistCommunism Party sympathizers had infiltrated the upper echelon of government. The Cold WarCold War era saw the Court uphold both convictions against free speech claims (Dennis v. United States, 1951) and speech, association, and self-incrimination protections (Barenblatt v. United States, 1959). Though the Constitution did not explicitly grant Congress the power to investigate, the Court consistently held that it was an implied power incident to lawmaking. Congress, the Court concluded, cannot legislate wisely or effectively without sufficient information pertaining to the subject or issue the legislation is intended to affect or change (McGrain v. Daugherty, 1927).

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[case]O’Brien, United States v.[OBrien, United States v.] (1968), the Court ruled that a legitimate governmental activity (the issuance of draft cards to raise and support armies) superseded O’Brien’s First Amendment right to symbolic speech and political protest (burning the draft card). The most controversial form of symbolic expression has been flag burning. Rooted in the Vietnam antiwar protests, flag burning touches on issues of freedom, patriotism, national interest, and political rights. Many states had laws outlawing flag desecrationFlag desecration during the 1960’s, but the question remained whether such laws were constitutional. In Street v. New York[case]Street v. New York[Street v. New York] (1969), the justices divided four to four on whether states could prohibit flag burning and desecration. The landmark case of Texas v. Johnson[case]Texas v. Johnson[Texas v. Johnson] (1989) upheld the right to such symbolic expression. Congress reacted that same year with a federal law prohibiting flag burning. The Court, using the same reasoning articulated in Texas v. Johnson, invalidated the law in United States v. Eichman[case]Eichman, United States v.[Eichman, United States v.] (1990).

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[case]New York Times Co. v. United States[New York Times Co. v. United States] (1971), the Court refused to enjoin publication, claiming that such actions would amount to prior restraint. However, the hastily delivered ruling was decided per curiam (by the court), and nine separate opinions (six in favor of The New York Times) were written. The variety of constitutional reasoning and argument within the opinions left no clear direction or precedent. The Court did not see a significant challenge to press freedoms based on national security after this case.

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).

Civil War

Curtiss-Wright Export Corp., United States v.

Federalist, The

Foreign affairs and foreign policy

Schenck v. United States

Vietnam War

War and civil liberties

War powers

War Powers Act of 1973

World War I

World War II

Youngstown Sheet and Tube Co. v. Sawyer