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N, National Security.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 08 August 2020

National Security.

The Constitution distributes the power to “provide for the common defense” between the legislative and executive branches of the federal government. This distribution of authority over national defense has been characterized by Edward S. Corwin in The President: Office and Powers 1787–1957 as “an invitation to struggle” (p. 171). Certainly, there have been struggles, but it seems closer to the framers’ intent to say that the effective use of the constitutional arrangements for national security requires cooperation between Congress and the president. The role of the judicial branch is to monitor the constitutional boundaries between the other two branches and to protect civil liberties when they are threatened by efforts to secure the national defense. In pursuing this role, only rarely have the courts had any significant impact on the decisions of the political branches.

The “judicial power,” besides its general jurisdiction over cases arising under the Constitution, laws, and treaties, is made explicitly responsible for certain matters touching on national security, such as cases affecting ambassadors and consuls, those involving *admiralty and maritime jurisdiction, and those in which treason is alleged. The Constitution defines treason quite precisely, limiting it to “levying war” against the nation or giving “aid and comfort” to its enemies. For conviction, it requires testimony by two witnesses to the same overt act or confession in open court. (p. 667) Rarely, if ever, however, have cases falling under these definitions had a central bearing on the conduct of national security policy.

Role of the Courts.

Instead, the Supreme Court has more typically determined whether each branch has played its proper constitutional role in the initiation and conduct of military conflict. In such cases, the Court has usually deferred to the political process.

During the *Civil War, for example, ship owners challenged President Abraham *Lincoln’s blockade on grounds that, when their property was seized, Congress had not yet declared war or otherwise signaled its cooperation in the use of armed force. The Court, albeit by the narrowest of majorities, rejected this argument, noting that the president had responded to an armed attack and Congress had supported his action as soon as it could.

When confronted by a sharp disagreement between Congress and the president, however, the Court has shown less deference. In 1952, during the Korean War, President Harry S Truman cited his responsibilities as commander in chief and his inherent powers as chief executive as the basis for his power to seize steel mills that were threatened by a strike. The Court responded, in *Youngstown Sheet & Tube v. Sawyer (1952), that the president’s power must come either from a statute, which everyone agreed Congress had refused to provide in this case, or from the Constitution. Power to seize private property could not be inferred, said the Court, either from the Vesting Clause or from the president’s designation as commander in chief; to do that would make presidential power boundless. The Court therefore ordered that the mills be returned to their owners.

In protecting civil liberties, the Court has been unwilling to insist on an absolute interpretation of *First Amendment rights of free *speech and association against claims based on national security. During *World War I, Congress passed legislation making it a crime to circulate false statements intended to interfere with military success or to utter or publish words intended to bring into contempt the government, Constitution, or flag of the United States. Nearly a thousand people were convicted under these statutes. Applying the “*clear and present danger” test, the Court upheld convictions under these laws in *Schenck v. United States (1919). During the Cold War, in such cases as *Dennis v. United States (1951), the Court upheld convictions of leaders of the Communist Party for willfully conspiring to teach and advocate the overthrow of the government by force and violence (see communism and cold war). In United States v. *Nixon (1974), the Court implied that if President Richard *Nixon’s claim of *executive privilege had been grounded on the “need to protect military, diplomatic or sensitive national security secrets,” it might have succeeded.

On the other hand, the Court has occasionally shown a willingness to confront a president’s claim of national security interests with powerful countervailing considerations based on First Amendment freedoms. In *New York Times Co. v. United States (1971), the Court refused to prevent the publication of the Pentagon Papers, invoking the rule against “*prior restraint.” Because nine opinions accompanied the short *per curiam decision, from which three of the justices dissented, the case left no clear precedent.

Freedom of speech, association (see assembly and association, citizenship, freedom of), and the press are not the only civil liberties that suffer in the conflict with national security. During the Civil War, having at first challenged the president’s power to suspend *habeas corpus, Chief Justice Roger B. *Taney did not pursue the matter in the face of Lincoln’s apparent refusal to accept the writ (Ex parte Merryman, 1861). Nor did the Court effectively resist the policy by which the Lincoln administration subjected more than thirteen thousand persons to arrest without warrant, detention without trial, and release only after the danger had passed. Ultimately, the Court produced a magisterial reaffirmation of the right of civilians to a fair trial, but not until the war was over (Ex parte *Milligan, 1866).

Similarly, during *World War II, the Supreme Court found no constitutional obstacle to the relocation and internment of Japanese-American citizens (*Hirabayashi v. United States, 1943; *Korematsu v. United States, 1944). Again, it was not until after the war that the Court sought to repair the damage (*Duncan v. Kahanamoku, 1946). The issue of judicial restraint on presidential power in the field of national security arose again in 2004, when the Court ruled, on a procedural issue, that *detainees at Guantánamo Bay were entitled to legal representation and a hearing on court. How federal courts might rule on the merits, in a case pitting a prisoner at Guantánamo against the administration, is unclear.

Since 1950, a Shifting Balance.

Historically, from the founding until the middle of the twentieth century, the need for the branches to cooperate, as the framers intended, was reinforced by two deep-seated cultural traditions: resistance to the maintenance of a standing army in peacetime and reluctance to enter into “entangling alliances.” Because of these commitments, political leaders in both branches approached each looming conflict on its own terms and had to persuade each other and the nation of the need to prepare for armed conflict and to send troops into battle. Small engagements required no major mobilization, (p. 668) and presidents were often able to begin and end them without much public debate, although consultation with congressional leaders routinely took place in such circumstances.

After World War II, the usual pattern of radical demobilization began, but soon the Cold War settled in, and the nation reluctantly agreed to abandon these historic commitments. The Truman administration negotiated and the Senate ratified a set of mutual defense treaties and other agreements (the North Atlantic Treaty of 1949 was the most important), by which the United States agreed to join with other nations in resisting communist aggression. Some of these agreements stated that an attack on any of the nations in the alliance would be viewed as an attack on all of them, and each would respond in accordance with its own constitutional procedures. As debates during the Constitutional Convention of 1787 had made clear, the president alone, under the Constitution, has power “to repel sudden attacks.”

Congress and the president decided that the nation’s responsibilities for defense of the “free world” required a massive military establishment. These armed forces included nuclear weapons mounted on rockets capable of devastating a foreign nation in a matter of hours. Since both sides had such weapons, command over the American arsenal had to be in hands capable of acting quickly.

These new facts greatly affected the balance of constitutional war powers. No longer would leaders in Congress and the administration have to seek political support for a mobilization of armed forces to meet a specific threat; they were continually ready. No longer would the president need authorization to respond when he or she perceived a communist threat; it was already there, in the treaties and agreements of the Cold War and in the consensus from which these agreements arose.

These arrangements fortified Presidents Harry Truman and Lyndon Johnson when they led the nation into war in Korea and *Vietnam, respectively. Both wars were entered into without a congressional declaration. But when they proved to be prolonged and deadly, they exacted high political costs.

As the Vietnam War dragged on, many people began to question whether the constitutional distribution of war powers was still capable of ensuring that the use of military force required the cooperation of the political branches. In due course, some of the questions were presented to the courts. Young men drafted into military service challenged the government’s power to make them fight in an undeclared war (DaCosta v. Laird, 1973). Members of Congress challenged the president’s power to wage war without a declaration (Holtzman v. Schlesinger, 1973). In each case, the courts refused to intervene, noting that former presidents had, on more than two hundred separate occasions, sent military forces into combat without a formal declaration of war, that control over the use of military forces was committed by the Constitution to the political branches, and that Congress had many ways of resisting a president’s policy, if it chose.

Only near the end of the war, in a case brought by thirteen members of Congress (Mitchell v. Laird, 1973), did a federal court finally acknowledge that appropriations ought not to be taken as indication of congressional support for the president’s policy. “This court [the Court of Appeals for the District of Columbia] cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war” (p. 615). In the same opinion, however, Judge Charles Wyzanski, noting that President Nixon’s stated policy was to bring the war to an end, held that the courts could not second-guess his strategy, and he refused to grant the congressmen’s plea that the president been joined from prosecuting the war.

Frustration with the operation of the system during the Vietnam War led Congress to enact, over President Nixon’s *veto, the *War Powers Resolution of 1973. Presented in its preamble as a fulfillment of the framers’ intent, it enjoined the president to “consult” with “Congress” (neither term was defined in the legislation) before introducing armed forces into hostilities and to report to Congress within forty-eight hours whenever he or she did so. It further required the president to remove the troops, unless Congress specifically affirmed the engagement, within sixty days and gave the chief executive an additional thirty days to accomplish the evacuation.

Every president since Nixon has regarded the War Powers Resolution as an unconstitutional invasion of powers provided by the Constitution. On the other hand, presidents have generally sought to abide by its requirements. Thus, in 1983, Ronald Reagan secured a resolution from Congress authorizing the commitment of troops in Lebanon for eighteen months. In 1991, George H. W. Bush sought and obtained a congressional resolution to undertake military action against Iraq to liberate Kuwait. And in October 2002, Congress authorized the George W. Bush to attack Iraq if Saddam Hussein refused to give up weapons of mass destruction, as required by a series of United Nations resolutions. In each case, the president insisted that he did not need Congress’s permission to take the nation to war, but did ask for, and received, resolutions of support.

Lawsuits seeking court enforcement of the resolution have been unsuccessful. In cases such (p. 669) as Crockett v. Reagan (1982), the federal courts have rejected claims by members of Congress on grounds that the facts are ambiguous and that the controversy had best be pursued by congressional majorities, acting through legislation, rather than by individuals or groups of members bringing suit.

Justice Robert *Jackson summed up the jurisprudence of national security in his eloquent dissent from the Supreme Court’s acceptance of the internment of Japanese-Americans in Korematsu v. United States: “If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country … must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history” (p. 248).

See also foreign affairs and foreign policy; separation of powers.

David Adler, “The Constitution and Presidential Warmaking,” Political Science Quarterly 103 (Spring 1988): 1–36. Charles A. Lofgren, “Government from Reflection and Choice”: Constitutional Essays on War, Foreign Relations, and Federalism (1986). H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation (2002). Clinton Rossiter, The Supreme Court and the Commander in Chief (1951). Abraham D. Sofaer, War, Foreign Affairs and Constitutional Powers: The Origins (1976).

Donald L. Robinson