A Statutory National Security President - Amy Stein 2019
A Statutory National Security President - Amy Stein 2019
A Statutory National Security President - Amy Stein 2019
2019
Recommended Citation
Amy L. Stein, A Statutory National Security President, 70 Fla. L. Rev. 1183 (2018)
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A STATUTORY NATIONAL SECURITY PRESIDENT
Amy L. Stein*
Abstract
Not all presidential power to address national security threats stems
from the Constitution. Some presidential national security powers stem
from statute, creating complicated questions about the limits of these
powers delegated to the President by Congress. Scholars who have
explored ways to achieve the proper balance between responsiveness and
accountability have generally focused on the proper degree of deference
that courts should provide to the President interpreting statutory
provisions, with little confidence in the utility and efficacy of statutory
constraints.
This Article counters this narrative by arguing that a key to achieving
this balance may lie in such constraints. Instead of defaulting to the broad
deference often provided when the President is exercising constitutional
national security powers, this Article urges both courts and Congress to
be more attentive to the differences between constitutional and statutory
national security powers and realize that statutory national security
authorities are more amenable to constraints.
Specifically, this Article focuses on procedural constraints as viable,
yet underappreciated, mechanisms to enhance transparency and
consistency. It is also the first to argue for a distinction between acute
and chronic national security threats and to propose a sliding scale of
procedural constraints that is tailored to each threat classification. It
argues that such constraints pose minimal separation of powers concerns
where the President is already acting under delegated statutory power,
encouraging more thoughtful analyses without hindering the ability of
the President to respond nimbly to national security threats.
INTRODUCTION ...................................................................................1184
* Professor of Law and University Term Professor, University of Florida Levin College
of Law. I am grateful to Stephanie Bornstein, Alyson Flournoy, Aziz Huq, Harold Koh, Margaret
Kwoka, Richard Pierce, Shalini Ray, Sudha Setty, Kevin Stack, and Steve Vladeck and to my
tireless research assistants, Joshua Rieger, Kelly Hallisey, Emily Weaver, Andres Perotti, Katie
Slattery, and Shannon Boylan for their outstanding assistance.
1183
1184 FLORIDA LAW REVIEW [Vol. 70
CONCLUSION .......................................................................................1256
INTRODUCTION
The linchpin of our Republic, the separation of powers, is being tested
like never before, particularly with respect to national security matters.
Although courts and scholars have long debated the proper balance of
national security powers among the branches, much of this analysis
focuses on a president’s constitutional war powers to perform acts related
to national security. But not all of a president’s national security powers
come from the Constitution. Some of a president’s national security
authority stems from statutes, delegated by Congress. Professor Kevin
Stack has spent the last decade expertly exploring the nuances of a
“statutory President,” focusing on complicated and necessary questions
of deference, reviewability, and contingent delegations.1 This Article
1. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 1013–
14 (2007) [hereinafter Stack, Constitutional Foundations]; Kevin M. Stack, The President’s
Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 304–10 (2006) [hereinafter
Stack, Statutory Powers]; Kevin M. Stack, The Reviewability of the President’s Statutory Powers,
62 VAND. L. REV. 1171, 1172–73 (2009) [hereinafter Stack, Reviewability]; Kevin M. Stack, The
Statutory President, 90 IOWA L. REV. 539, 553 (2005) [hereinafter, Stack, Statutory President]
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1185
(“The only potential constitutional source of procedural constraint on presidential orders is the
Fifth Amendment's Due Process Clause.”).
2. See infra note 37.
3. Press Release, Office of the Coordinator for Counterterrorism, U.S. Dep’t of State,
Executive Order 13224 (Sept. 23, 2001), https://www.state.gov/j/ct/rls/other/des/122570.htm
[https://perma.cc/5KCB-X3Q7].
4. DOE’s Use of Federal Power Act Emergency Authority, OFFICE ELEC.: U.S. DEP’T
ENERGY, https://energy.gov/oe/services/electricity-policy-coordination-and-implementation/
other-regulatory-efforts/does-use [https://perma.cc/KWT3-A7X6].
5. Associated Press, Congress Declares Climate Change a National Security Threat, N.Y.
POST (July 14, 2017, 1:38 PM), https://nypost.com/2017/07/14/congress-declares-climate-
change-a-national-security-threat/ [https://perma.cc/R3P4-6UKW].
6. Mattis: US National Security Focus No Longer Terrorism, BBC (Jan. 19, 2018),
http://www.bbc.com/news/world-us-canada-42752298 [https://perma.cc/G2YV-DKVK].
1186 FLORIDA LAW REVIEW [Vol. 70
7. See infra Section II.B. As Robert Schapiro has defined it, “deference involves a
decisionmaker following a determination made by some other individual or institution that it
might not otherwise have reached had it decided the same question independently.” Paul Horwitz,
Three Faces of Deference, 83 NOTRE DAME L. REV. 1061, 1072 (2008) (citing Robert A. Schapiro,
Judicial Deference and Interpretive Coordinacy in State and Federal Constitutional Law, 85
CORNELL L. REV. 656, 665 (2000)).
8. See infra note 105 and accompanying text.
9. Deborah N. Pearlstein, After Deference: Formalizing the Judicial Power for Foreign
Relations Law, 159 U. PA. L. REV. 783, 786 (2011) (“If there is no predictable or sensible way of
determining how much attention the Court will pay executive views in construing foreign relations
law, rule-of-law interests require, at a minimum, the development of a new understanding of the
judicial relationship to the executive on questions of law interpretation.”); see infra notes 184–
217 and accompanying text.
10. See infra notes 311–33 and accompanying text.
11. See, e.g., Aziz Z. Huq, Against National Security Exceptionalism, 2009 SUP. CT. REV.
225, 226.
12. The concept of delegated authority from Congress may be difficult for some formalists,
see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472–73 (2001), but delegations to a president
may be less controversial than delegations to an agency.
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1187
Hoffstadt, Normalizing the Federal Clemency Power, 79 TEX. L. REV. 561, 565 (2001)
(“The President’s pardon power, on the other hand, is largely unfettered by substantive
or procedural constraints.”); Liaquat Ali Khan, A Portfolio Theory of Foreign Affairs: U.S.
Relations with the Muslim World, 20 TRANSNAT’L L. & CONTEMP. PROBS. 377, 406 (2011) (stating
that statutory constraints act as barriers in a president’s attempt to change the foreign policy
statutory portfolios launched by prior administrations and fortified with federal statutes); Heidi
Kitrosser, It Came From Beneath the Twilight Zone: Wiretapping and Article II Imperialism, 88
TEX. L. REV. 1401, 1410 (2010) (evaluating the exclusivist narrative, which posits that throughout
most of American history, Congress respected presidential exclusivity, imposing few statutory
constraints on presidential powers over foreign affairs or national security); Harold Hongju Koh,
Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair,
97 YALE L.J. 1255, 1263–64 (1988) (explaining that a number of statutes enacted in the 1970s
delegated foreign affairs authority to President while subjecting the exercise of such authority to
procedural constraints; however, by the late 1980s, it had become clear that the Executive was
“paying only lip service” to these procedural constraints); Jason Luong, Forcing Constraint: The
Case for Amending the International Emergency Economic Powers Act, 78 TEX. L. REV. 1181,
1201 (2000) (“[A] . . . deferential federal judiciary has effectively nullified the limited statutory
constraints imposed by the [International Emergency Economic Powers Act] and the [National
Emergency Act].”); Todd David Peterson, Congressional Power Over Pardon & Amnesty:
Legislative Authority in the Shadow of Presidential Prerogative, 38 WAKE FOREST L. REV. 1225,
1252 (2003) (finding it unlikely that the Supreme Court would allow Congress to impose
procedural restrictions related to pardons on the President directly); Zachary S. Price, Funding
Restrictions and Separation of Powers, 71 VAND. L. REV. 357, 358 (2018) (evaluating
congressional control over “resource-dependent” executive powers—including war powers and
law enforcement—through their “near-plenary authority to restrict or condition use of available
resources” relied upon to execute such powers); Stack, Reviewability, supra note 1, at 1205
(noting that the President is generally “subject to very limited procedural constraints”); Stack,
Statutory President, supra note 1, at 588 (noting that procedural constraints on the president are
rare, and that “the few procedural constraints [Congress] [has] impose[d] are merely consulting
and reporting requirements”); Edward T. Swaine, The Political Economy of Youngstown, 83 S.
CAL. L. REV. 263, 314–15 (2010) (“[T]he potential negative of statutory constraints is often
blunted by executive branch claims that the constraints must be interpreted in light of powers
reserved to Congress or to the president.”); Adrian Vermeule, Our Schmittian Administrative Law,
122 HARV. L. REV. 1095, 1106–31 (2009) (describing “black holes” and “grey holes”—domains
in which the Executive is either explicitly or implicitly exempt from legal constraints—in national
security law cases).
20. See, e.g., discussion infra Section III.C.1.
21. A few others have explored the merits of statutory constraints on a president. See
HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE
IRAN-CONTRA AFFAIR 210–12 (1990) (arguing for the imposition of procedural constraints on the
1190 FLORIDA LAW REVIEW [Vol. 70
President in the execution of foreign policy initiatives); David Gray Adler, George Bush and the
Abuse of History: The Constitution and Presidential Power in Foreign Affairs, 12 UCLA J. INT’L
L. & FOREIGN AFF. 75, 130 (2007) (arguing that the Commander in Chief Clause does not support
an assertion of inherent executive power; rather, the President is limited by the Constitution and
statutory constraints); Gus H. Buthman, Note, Signing Statements and the President’s Non-
Enforcement Power, 32 OKLA. CITY U. L. REV. 103, 129 (2007) (arguing that failing to impose
procedural constraints on presidential exercise of non-enforcement power would violate the
separation of powers doctrine).
22. See Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute
the Laws, 104 YALE L.J. 541, 543 (1994) (defining the unitary Executive as “a hierarchical
executive branch, with the President in charge of all administration of the laws” (quoting
Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV.
1, 4 (1994))); Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1755 (1996)
(explaining that “a truly unitary executive” means no “legislative involvement in the manner in
which the executive executes the laws”); Elena Kagan, Presidential Administration, 114 HARV.
L. REV. 2245, 2247 (2001) (defining the unitary Executive as “a system in which all of what now
counts as administrative activity is controllable by the President”).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1191
Article I provides Congress with the power to declare war23 and to raise
and support the armed forces,24 while Article II establishes the President
as Commander in Chief of the armed forces25 and directs the President
with the Take Care Clause.26 But as others have noted, “the precise
boundaries and balance of power between the Congress and the President
are left largely undefined,” reducing their usefulness in actual disputes
about executive power.27 As Justice Jackson has remarked, “[a] judge,
like an executive adviser, may be surprised at the poverty of really useful
and unambiguous authority applicable to concrete problems of executive
power as they actually present themselves.”28
These ambiguities about executive power have rendered it a
particularly fruitful area of scholarly analysis, particularly with regard to
national security. Many scholars have focused on the grand constitutional
issues such as the war powers that the Constitution divides between the
Executive and Legislative Branches.29 Some have focused on the famous
presidential uses of emergency powers during times of war, including
President Lincoln’s suspension of habeas corpus justified by the
rebellion,30 President Franklin Roosevelt’s order requiring Japanese
Americans to be interned during World War II,31 and President Harry
power to exclude American citizens from certain areas based on their race because of a pressing
public necessity for safety), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018); Francis P.
Sempa, The Wartime Presidency, 26 T.M. COOLEY L. REV. 25, 44 (2009) (“Nor do I think that the
Constitutional difficulty plagued him. The Constitution has not greatly bothered any wartime
President. That was a question of law, which ultimately the Supreme Court must decide. And
meanwhile—probably a long meanwhile—we must get on with the war.” (emphasis omitted)
(quoting WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 48, 191–
92 (1998))).
32. Youngstown, 343 U.S. at 585, 587 (holding that President Truman did not have the
power to seize the steel mills, despite the existence of a “national emergency,” and that the
President’s power to issue an order must stem from an act of Congress or the United States
Constitution); see also Brendan Flynn, The War Powers Consultation Act: Keeping War out of
the Zone of Twilight, 64 CATH. U. L. REV. 1007, 1012, 1026 (2015) (discussing how legal
academics generally fall into one of two camps when discussing war powers—“Congress-First”
or “President-First”—and how “President Truman's decision to greatly expand executive
authority with respect to taking the nation to war gave his successors a powerful tool for exercising
executive war-making capabilities”); Sempa, supra note 31, at 45 (“He did this without
congressional authorization, relying on his constitutional power as Commander-in-Chief.”).
33. Colin S. Diver, Presidential Powers, 36 AM. U. L. REV. 519, 521–22 (1987).
34. See generally Mark Seidenfeld, A Big Picture Approach to Presidential Influence on
Agency Policy-Making, 80 IOWA L. REV. 1, 1–2 (1994); Lisa Schultz Bressman & Michael P.
Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential
Control, 105 MICH. L. REV. 47 (2006).
35. See generally Cynthia R. Farina, False Comfort and Impossible Promises: Uncertainty,
Information Overload, and the Unitary Executive, 12 U. PA. J. CONST. L. 357, 396 (2010).
36. Diver, supra note 33, at 521.
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1193
40. See 50 U.S.C. § 4611(c)(1)(C) (Supp. III 2016) (“The President shall not apply
sanctions under this section—(1) in the case of procurement of defense articles or defense
services— . . . (C) if the President determines that such articles or services are essential to
the national security under defense coproduction agreements . . . .”).
41. 21 U.S.C. § 1903(g)(1) (2012) (“The President may waive the application to a
significant foreign narcotics trafficker of any sanction authorized by this chapter if
the President determines that the application of sanctions under this chapter would significantly
harm the national security of the United States.”).
42. See 10 U.S.C. § 12305(a) (2012) (“[D]uring any period members of a reserve
component are serving on active duty . . . , the President may suspend any provision of law relating
to promotion, retirement, or separation applicable to any member of the armed forces who the
President determines is essential to the national security of the United States.”); Santiago v.
Rumsfeld, 425 F.3d 549, 557–59 (9th Cir. 2005) (authorizing the President’s extension of
enlistment of a National Guard sergeant where the President determined that he was essential to
national security and the President had issued a proclamation declaring a national emergency);
Sherman v. United States, 755 F. Supp. 385, 387 (M.D. Ga. 1991) (explaining that the President
is authorized to “extend the enlistment of members of the armed forces, regular or reserve, if and
when ‘members of a reserve component are serving on active duty pursuant to an order to active
duty’”).
43. See Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1610(f)(3) (2012)
(allowing the President to issue a waiver of the attachment of property of foreign states in actions
to enforce judgments against them “in the interest of national security”); Alejandre v. Republic of
Cuba, 42 F. Supp. 2d 1317, 1324 (S.D. Fla.), vacated sub nom. Alejandre v. Telefonica Larga
Distancia, de Puerto Rico, Inc., 183 F.3d 1277 (11th Cir. 1999); see also Oren Eisner,
Note, Extending Chevron Deference to Presidential Interpretations of Ambiguities in Foreign
Affairs and National Security Statutes Delegating Lawmaking Power to the President, 86
CORNELL L. REV. 411, 419–20 (2001) (discussing that the President is authorized to waive
requirements of § 1610 in the interest of national security, which applies to foreign attached
property).
44. 22 U.S.C. § 6727 (2012).
45. 50 U.S.C. § 4532 (Supp. III 2016).
46. 10 U.S.C. § 9776 (2012).
47. 47 U.S.C. § 606 (2012).
48. 50 U.S.C. § 4511 (Supp. IV 2017).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1195
private property.56 The statutory trigger for the President to exercise this
authority is a proclamation by the President that “there exists war or a
threat of war, or a state of public peril or disaster or other national
emergency, or in order to preserve the neutrality of the United States.”57
In a rare case assessing whether the conditions were necessary to trigger
this statutory power, an Illinois court upheld the President’s taking
control over the telephone systems during World War I as a decision lying
“wholly within [his] discretion” and immunized executive agents
implementing this authority from injunction.58
Even broader than the Telecommunications Act, the Federal Power
Act59 allows the President to take control over any energy project for “any
other purpose involving the safety of the United States.”60 Unlike the
Telecommunications Act, the exercise of this power is not conditioned
on a declaration of national emergency, but on another ambiguous
national security term, “the safety of the United States.”61 What exactly
does that mean and what would a challenge to the President’s exercise of
this authority look like?
Presidents primarily exercise these statutory national security powers
through the use of executive orders.62 Most executive orders contain a
catch-all constitutional provision as a source of their authority to act on
national security matters, with many also citing to at least one statutory
provision.63 As an example of such concurrent authority, President
Obama’s executive order on cybersecurity reads:
By the authority vested in me as President by the
Constitution and the laws of the United States of America,
64. Id.
65. See, e.g., Exec. Order No. 13,587, 76 Fed. Reg. 63,811 (Oct. 7, 2011) (“By the authority
vested in me as President by the Constitution and the laws of the United States . . . .”).
66. See infra Appendix A.
67. See infra Appendix A.
68. See, e.g., Trade Expansion Act of 1962, Pub. L. No. 87-794, § 232(b), 76 Stat. 872, 877
(codified as amended at 19 U.S.C. § 1862(b) (2012)); see also David Scott Nance & Jessica
Wasserman, Regulation of Imports and Foreign Investment in the United States on National
Security Grounds, 11 MICH. J. INT’L L. 926, 935 (1990) (“Significantly, the phrase ‘threaten to
impair the national security’ is neither defined nor discussed in the statute or in the agency’s
regulations. Nor is there any meaningful discussion of the standard in the legislative history. This
omission highlights the extent to which determination under section 232 were intended to be
discretionary, and emphasizes the flexibility accorded both the ITA and the President in making
such determinations.” (footnote omitted)).
69. A search in the USCA on Westlaw for “national security” within 250 words of
“definition,” using the search terms “national security” /250 definition, yielded 421 statutes.
70. 10 U.S.C. § 801(16) (2012); Classified Information Procedures Act, 18 U.S.C. app.
§ 1(b) (2012).
71. 8 U.S.C. § 1189(d)(2) (2012).
1198 FLORIDA LAW REVIEW [Vol. 70
https://www.cnn.com/2019/01/06/politics/adam-schiff-trump-wall-cnntv/index.html
[https://perma.cc/3GQ3-BKCK] (“I may declare a national emergency [to secure money for a
border wall between the U.S. and Mexico] dependent on what’s going to happen over the next
few days . . . .”).
80. See MARY L. DUDZIAK, WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES 8 (2012)
(“[W]artime has become normal time in America. . . . Wartime has become the only kind of time
we have, and therefore is a time within which American politics must function.”); Claire Jabbour,
Combating Impunity: Contractor Liability for Torture During Times of War Under the Wartime
Suspension of Limitations Act, 5 AM. U. BUS. L. REV. 137, 138 (2015) (“In 2008, Congress
redefined war . . . to include a modern interpretation; war is not limited to official declarations,
but it also includes congressional or presidential authorizations of military force. Numerous wars
have occurred between the end of WWII and 2008, all without formal declarations of war by
Congress.” (footnote omitted)).
81. See Mitchell v. Forsyth, 472 U.S. 511, 533 (1985) (distinguishing surveillance of
foreign threats to national security from surveillance of domestic threats to national security); see
also Norman C. Bay, Executive Power and the War on Terror, 83 DENV. U. L. REV. 335, 376–77
(2005); Roy E. Brownell II, The Coexistence of United States v. Curtiss-Wright and Youngstown
Sheet & Tube v. Sawyer in National Security Jurisprudence, 16 J.L. & POL. 1, 14–15 (2000)
(proposing six categories within the Youngstown framework, further distinguishing between
foreign and domestic national security affairs).
82. United States v. Prosperi, 573 F. Supp. 2d 436, 449, 454–55 (D. Mass. 2008).
83. Id. at 449.
84. No. 08-CR-4229-JLS, 2010 WL 2650224 (S.D. Cal. July 1, 2010).
85. Id. at *3.
1200 FLORIDA LAW REVIEW [Vol. 70
Supreme Court has noted that the answer to whether the nation is at war
may change depending on the context.86
As the social and technological landscapes of the United States
develop and change, the methods of war change as well. With the rise of
technology, the weapons of “cyber war” have become equally, if not
more, devastating—with the added bonus of never having to leave the
country.87 “Thus, [the] lack of perceptibility and the general sense of
detachment citizens feel from cyber-related activities could allow for the
U.S. Government, at the sole direction of the President, to prepare for and
engage in a perpetual state of cyber war.”88 As just one example, the
recent indictment against thirteen Russian nationals for interference in
the 2016 presidential elections89 has been described as an “act of war.”90
In short, the ease of initiating cyberattacks has begun to blur the lines
between when the country is at war and peace.91 The fact that “war” is no
longer reserved solely for nations, but now also includes non-state actors,
has also changed the landscape of what constitutes modern-day war.92
86. Lee v. Madigan, 358 U.S. 228, 231 (1959) (“Congress in drafting laws may decide that
the Nation may be ‘at war’ for one purpose, and ‘at peace’ for another. It may use the same words
broadly in one context, narrowly in another.”).
87. Tyler K. Lowe, Mapping the Matrix: Defining the Balance Between Executive Action
and Legislative Regulation in the New Battlefield of Cyberspace, 17 SCHOLAR 63, 90 (2015). For
example, Russia is allegedly hacking into databases and email systems of the U.S. Departments
of Defense and State to obtain personnel information, as well as targeting the electric grids.
Deborah Barfield Berry & Erin Kelly, States Move to Protect Voting Systems from Russia with
Little Help from Congress, USA TODAY (Feb. 16, 2018, 12:00 PM), https://www.usatoday.com/
story/news/politics/2018/02/16/states-move-protect-voting-systems-russia-little-help-congress/
338411002/ [https://perma.cc/S8QZ-5RB6]; Ellen Nakashima, Hacks of OPM Databases
Compromised 22.1 Million People, Federal Authorities Say, WASH. POST (July 9, 2015),
https://www.washingtonpost.com/news/federal-eye/wp/2015/07/09/hack-of-security-clearance-
system-affected-21-5-million-people-federal-authorities-say/?utm_term=.831b264f735a
[https://perma.cc/5CPW-TRS9]; David E. Sanger, Russian Hackers Appear to Shift Focus to U.S.
Power Grid, N.Y. TIMES (July 27, 2018), https://www.nytimes.com/2018/07/27/us/politics/
russian-hackers-electric-grid-elections-.html [https://perma.cc/EG4Q-NLM7].
88. Lowe, supra note 87.
89. See generally Indictment, United States v. Internet Research Agency LLC, No. 1:18-cr-
00032-DLF, 2018 WL 914777 (D.D.C. Feb. 16, 2018) (putting forth the specific charges against
each Russian for interference in the election).
90. Natasha Bertrand, Mueller’s Indictment Puts Details Behind Claims of Russian
Interference, ATLANTIC (Feb. 16, 2018), https://www.theatlantic.com/politics/archive/2018/02/
muellers-indictment-reveals-details-of-russian-election-interference/553625/ [https://perma.cc/
3PCD-CD4W].
91. John Yoo, Embracing the Machines: Rationalist War and New Weapons Technologies,
105 CAL. L. REV. 443, 446 (2017).
92. Id. at 458 (“States no longer have a monopoly on international violence that can rise to
the level of armed conflict. . . . By expanding the area of conflict and employing asymmetric,
unconventional tactics and weapons, al-Qaeda showed that nonstate actors could wield the
destructive power once held only by national militaries. . . . The evolution of nonstate actors into
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1201
Others note the persistence of this definitional problem, and that “it is all
the more troubling in an era in which wars are increasingly being fought
by and against individuals who are members of loosely organized groups,
under no formal military command, who wear no uniforms, and who
never have and likely never will sign an international protocol or
treaty.”93 Even the Supreme Court in United States v. Curtiss-Wright
Export Corp.94 made a distinction between international and domestic
problems, suggesting that domestic national security issues may be
treated with less deference or more procedural constraints than foreign
national security issues.95
Multiple sources discuss the inability of the government to define
“national security” for multiple reasons, including the U.S. Court of
Appeals for the District of Columbia, which has stated that “national
security defies precise definition because it is preambulary in nature.”96
Cole v. Young97 remains one of the only Supreme Court cases where the
Court tried to define “national security” as it was used in the Summary
Suspension Act.98 That statute provided the “heads of certain departments
and agencies of the Government summary suspension and unreviewable
dismissal powers over their civilian employees, when deemed necessary
‘in the interest of the national security of the United States.’”99 Although
the Court affirmed the President’s extension of this removal power to
employees of all Government agencies,100 including the plaintiff in that
case, who had been discharged for his association with communists,101
the Court held that “national security” had to actually concern the safety
of the nation and not be a simple catch-all for general welfare.102 The
organized, military operatives contributes a more general uncertainty of what constitutes ‘war’ in
the modern era.”).
93. Gordon Silverstein & John Hanley, The Supreme Court and Public Opinion in Times of
War and Crisis, 61 HASTINGS L.J. 1453, 1456 (2009).
94. 299 U.S. 304 (1936).
95. Id. at 319–29. This foreign/domestic distinction can also be found in the Fourth
Amendment context. See United States v. United States District Court for the Eastern District of
Michigan, Southern Division, 407 U.S. 297, 321–22 (1972) (holding that a judicial warrant must
issue before the government may engage in electronic surveillance of domestic threats to national
security, but “express[ed] no opinion as to [the surveillance of the] activities of foreign powers”).
96. Am. Sec. Council Ed. Found. v. FCC, 607 F.2d 438, 456 & n.38 (D.C. Cir. 1979) (“One
could no more define with specificity ‘national security’ than one could define ‘a more perfect
Union,’ ‘Justice,’ ‘domestic Tranquility,’ ‘the common defence,’ ‘the general Welfare,’ ‘the
Blessings of Liberty,’ or, for that matter, ‘the pursuit of Happiness.’”).
97. 351 U.S. 536 (1956).
98. Id. at 538.
99. Id.
100. Id. at 542.
101. Id. at 540.
102. Id. at 544.
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Court ruled that the term “national security” was used in the Act in a
definite and limited sense, relating to activities “directly concerned with
the protection of the Nation from internal subversion or foreign
aggression, and not those which contribute to the strength of the Nation
only through their impact on the general welfare.”103
Those seeking to challenge any such executive orders that rely on
statutory power need to overcome hurdles related to standing,104 the
political question doctrine,105 separation of powers,106 and other threshold
questions.107 These issues are not addressed in this Article, but they have
been addressed in depth elsewhere. Even if plaintiffs prevail on such
threshold questions, the lack of statutory definitions leaves substantial
ambiguity surrounding a president who invokes these powers.108
This lack of statutory definition is particularly troubling where
Congress conditions a presidential exercise of authority upon a national
103. Id. If Congress intended “interest of the national security” to be equated with the general
welfare of the United States, Congress would not have limited the Act to the enumerated agencies.
Id. at 544–45.
104. See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 608–09 (2007); Utah
Ass’n of Ctys. v. Bush, 455 F.3d 1094, 1098 (10th Cir. 2006); Chenoweth v. Clinton, 181 F.3d
112, 113 (D.C. Cir. 1999); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375,
1378 (D.C. Cir. 1984); Ostrow, supra note 62, at 669–70 (explaining that courts have found
standing to enforce agency actions that fail to comply with an executive order).
105. See Baker v. Carr, 369 U.S. 186, 211, 217 (1962) (holding that a political question
would exist in a case where there is an “impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion”); Chi. & S. Air Lines v. Waterman S.S.
Corp., 333 U.S. 103, 111 (1948) (“[T]he very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative. They are delicate, complex, and
involve large elements of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, facilities nor responsibility and which [have] long been
held to belong in the domain of political power not subject to judicial intrusion or inquiry.”); El-
Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 845 (D.C. Cir. 2010) (precluding the
claim against the President’s decision to launch a strike as being consistent with the War Powers
Resolution, the court held that “the decision to take military action is a ‘policy determination of a
kind clearly for nonjudicial discretion’” (quoting Baker, 369 U.S. at 217)).
106. No Oilport! v. Carter, 520 F. Supp. 334, 352 (W.D. Wash. 1981) (citing separation of
powers as the basis of their decision).
107. See generally Newland, supra note 62 (discussing the challenges involved with judicial
review of executive orders). Additionally, courts have held that citizens cannot sue for the
enforcement of an executive order that finds its power under Article II of the Constitution, making
it more difficult for Congress to know which executive orders are still valid. Id. at 2076. But see
Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 COLUM. L. REV. 1612
(1997) (arguing that nonstatutory review, which avoids the sovereign immunity of the United
States by making the fictional assumption that a suit against a government officer is not against
the government, could be used against the President).
108. See Newland, supra note 62, at 2053–54.
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1203
112. Koh, supra note 19, at 1263 (“The vast majority of the foreign affairs powers the
President exercises daily are not inherent constitutional powers, but rather, authorities that
Congress has expressly or impliedly delegated to him by statute.”).
113. 5 U.S.C. § 7532 (2012) (“[T]he head of an agency may suspend without pay an
employee of his agency when he considers that action necessary in the interests of national
security. To the extent that the head of the agency determines that the interests of national security
permit, the suspended employee shall be notified of the reasons for the suspension.”). Section
824a of the Federal Power Act provides that the Department of Energy may determine that “an
emergency exists by reason of a sudden increase in the demand for electric energy, or a shortage
of electric energy or of facilities for the generation or transmission of electric energy, or of fuel
or water for generating facilities, or other causes, the Commission shall have authority, either
upon its own motion or upon complaint, with or without notice, hearing, or report, to require by
order such temporary connections of facilities and such generation, delivery, interchange, or
transmission of electric energy as in its judgment will best meet the emergency and serve the
public interest.” 16 U.S.C § 824a(c)(1) (Supp. III 2016).
114. See, e.g., Trade Expansion Act of 1962, Pub. L. No. 87-794, § 232(b), 76 Stat. 872, 877
(codified as amended at 19 U.S.C. § 1862(b)(1)(A) (2012)).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1205
122. See, e.g., Dakota Cent. Tel. Co. v. South Dakota, 250 U.S. 163, 181, 183–84 (1919)
(finding H.R.J. Res. 309, 65th Cong. (1918) properly vested the President with exclusive control
of the telephone service during wartime); Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1359, 1362
(Fed. Cir. 2006) (declining to review a president’s invocation of statutory authority in a non-
national security setting).
123. H.R.J. Res. 309; see also Dakota Cent., 250 U.S. at 181–83 (discussing H.R.J. Res. 309
and the power it conferred upon the President); Motions Sys., 437 F.3d at 1361 (declining to
review a president’s invocation of statutory authority in a non-national security setting).
124. 250 U.S. 163 (1919).
125. Id. at 184; see also Stack, Reviewability, supra note 1, at 1173 (“The reviewability
doctrine represented in Dakota Central grew into a general barrier to review of the determinations
that public officials, [including] the President, made to satisfy the conditions for exercising
statutory powers.”).
126. 511 U.S. 462 (1994).
127. Id. at 477; see also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 112
(1948) (“We therefore agree that whatever of [the Civil Aeronautics Act] emanates from the
President is not susceptible of review by the Judicial Department.”); United States v. George S.
Bush & Co., 310 U.S. 371, 380 (1940) (“No question of law is raised when the exercise of
[presidential] discretion is challenged.”).
128. 137 F.2d 736 (3d Cir. 1943).
129. Id. at 739 (footnote omitted) (quoting 50 U.S.C. app. § 721 (1940)) (citing Hirabayashi
v. United States, 320 U.S. 81, 93 (1943)) (“The scope for the exercise of judgment and discretion
by the President . . . to meet the exigencies of war is a wide one and it is not for the courts to sit
in review of the action taken in organizing war effort at home or the operation of armed forces in
direct contact with the enemy.”).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1207
130. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936); accord Jide
Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941, 943–44, 959 (2004).
131. See U.S. CONST. art. II; Curtiss-Wright, 299 U.S. at 322 (referencing the inherent power
of the President to represent the nation in foreign affairs and to protect security interests as legal
reason to defer to the judgment of the President); William N. Eskridge, Jr. & Lauren E. Baer, The
Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from
Chevron to Hamdan, 96 GEO. L.J. 1083, 1100–01 (2008) (premising the Curtiss-Wright deference
standard on the President’s Article II powers).
132. Eskridge & Baer, supra note 131, at 1164; accord Al-Bihani v. Obama, 619 F.3d 1, 38–
39 (D.C. Cir. 2010) (Kavanagh, J., concurring in the denial of rehearing en banc) (stating that the
practice of judicial restraint when a president is acting pursuant to a national security provision of
a statute “stems from at least three interpretive sources . . . one based on Article II of the
Constitution”).
133. See Eskridge & Baer, supra note 131 (citing Curtiss-Wright, 299 U.S. at 320) (arguing
that while Curtiss-Wright deference rests on authority granted by Article II, the level of deference
increases when Congress delegates power pursuant to its Article I authority).
134. 453 U.S. 654 (1981).
135. Id. at 686.
136. Brownell, supra note 81, at 104.
137. Dames & Moore, 453 U.S. at 680–82. Looking to Congress’s intent in passing federal
statutes, such as the International Claims Settlement Act of 1949, the Court reasoned
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“Congress . . . implicitly approved the practice of claim settlement by executive agreement.” Id.
at 680. Supporting this decision was the Court’s decision in United States v. Pink (and implicitly
United States v. Belmont), which recognized the President’s power to “enter into executive
agreements without obtaining the advice and consent of the Senate.” Id. at 682 (citing United
States v. Pink, 315 U.S. 203 (1942)); see also United States v. Belmont, 301 U.S. 324, 330 (1937)
(“[T]he Executive had authority to speak as the sole organ of that government. The assignment
and the agreement in connection therewith did not . . . require the advice and consent of the
Senate.”); Landau, supra note 27, at 1945 (discussing the “expanded national security power[s]”
given to the President by the Court in Dames & Moore).
138. Dames & Moore, 453 U.S. at 688.
139. Koh, supra note 19, at 1291.
140. See Michael D. Ramsey, The Myth of Extraconstitutional Foreign Affairs Power, 42
WM. & MARY L. REV. 379, 380–81 & n.8 (2000) (“For prominent judicial citations of Curtiss-
Wright, see Clinton v. City of New York, 524 U.S. 417, 445–46 (1998) (citing Curtiss-Wright as
evidence of the President’s broad discretion in foreign affairs); Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155, 188 (1993) (same); Perpich v. Department of Defense, 496 U.S. 334, 354 n.28
(1990) (quoting with approval Curtiss-Wright’s assertion of extraconstitutional power in foreign
affairs); Webster v. Doe, 486 U.S. 592, 605–06 (1988) (citing Curtiss-Wright in support of the
President’s broad role in foreign affairs); Toll v. Moreno, 458 U.S. 1, 10 (1982) (citing Curtiss-
Wright as evidence of the federal government’s ‘broad authority over foreign affairs’); National
Foreign Trade Council v. Natsios, 181 F.3d 38, 50 (1st Cir. 1999) (quoting with approval Curtiss
Wright’s observations about extraconstitutional power in foreign affairs), aff’d on other grounds
sub nom. Crosby v. National Foreign Trade Council, 120 S. Ct. 2888 (2000); see also Velasquez
v. Frapwell, 160 F.3d 389, 392–93 (7th Cir. 1998) (referring to the inconclusive historical debate
over Curtiss-Wright), vacated in part, 165 F.3d 593 (7th Cir. 1999).” (italics added)).
141. See Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015) (“Curtiss-
Wright did not hold that the President is free from Congress’s lawmaking power in the field of
international relations.”); KOH, supra note 21, at 94 (describing the “withering criticism” of
Curtiss-Wright); Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a
Framework for Judicial Review, 56 S. CAL. L. REV. 863, 886 (1983) (“Commentators are in almost
universal agreement . . . that ‘Sutherland uncovered no constitutional ground for upholding a
broad, inherent, and independent power in foreign relations.’” (quoting Charles A. Lofgren,
United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 YALE L.J.
1, 30 (1973))); Louis Fisher, The Law: Presidential Inherent Power: The “Sole Organ” Doctrine,
37 PRESIDENTIAL STUD. Q. 139, 149 (2007) (“Most of the scholarly studies of Curtiss-Wright in
professional journals and books have been highly critical of Sutherland’s decision.”); Michael J.
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1209
Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright?,
13 YALE J. INT’L L. 5, 12 (1988) (“The first thing to be said about this breathtaking exegesis
concerning ‘plenary powers’ is that it is the sheerest of dicta.”); Julius Goebel, Jr., Constitutional
History and Constitutional Law, 38 COLUM. L. REV. 555, 572 n.46 (1938) (calling Curtiss-Wright
a “perversion”); C. Perry Patterson, In re the United States v. the Curtiss-Wright Corporation, 22
TEX. L. REV. 286, 297 (1944) (describing Curtiss-Wright as “(1) contrary to American history;
(2) violative of our political theory; (3) unconstitutional, and (4) unnecessary, undemocratic, and
dangerous”); Ramsey, supra note 140, at 380 (“Much academic labor has been devoted to proving
Curtiss-Wright wrong.”).
142. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588–89 (1952).
143. See Setty, supra note 117, at 91–92, 111–12. See generally Ganesh Sitaraman & Ingrid
Wuerth, The Normalization of Foreign Relations Law, 128 HARV. L. REV. 1897, 1935–49, 1963,
1972 (2015) (arguing that “[d]eclarations of blanket exceptionalism should no longer be a
justification for divergent treatment” of foreign and domestic affairs).
144. See Thomas P. Crocker, Presidential Power and Constitutional Responsibility, 52 B.C.
L. REV. 1551, 1557 (2011) (“It is not enough to say that separation of powers is ‘obsolete,’ or that
the political process is sufficient to check the modern executive (as some do) without also
acknowledging the normative constraint of the executive’s constitutional responsibilities.”
(footnote omitted)); David A. O’Neil, The Political Safeguards of Executive Privilege, 60 VAND.
L. REV. 1079, 1083 (2007) (“There is no reason to believe—and, in fact, powerful reason to
doubt—that the political process alone will yield a satisfactory allocation of authority . . . .”);
Setty, supra note 117, at 106 (“Further, a variety of political and structural incentives have created
a situation where exceptionalism reigns and accountability from Congress or the courts does not
exist: ideological alignment with the president, concern that national security is an issue within
the president’s sole jurisdiction, complacency, and an overly formalistic judiciary that chooses to
defer to the president instead of engaging in its counter majoritarian obligation to protect
fundamental rights have all contributed to the lack of engagement on the question of redress for
violations of human and civil rights.” (footnote omitted)).
145. Youngstown Sheet & Tube Co., 343 U.S. at 589; Exec. Order No. 10,340, 17 Fed. Reg.
3139 (Apr. 8, 1952).
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Haw. 2013); Ancient Coin Collectors Guild v. U.S. Customs & Border Prot., 801 F. Supp. 2d 383,
403 (D. Md. 2011), aff’d, 698 F.3d 171 (4th Cir. 2012).
166. See, e.g., Alejandre v. Cuba, 42 F. Supp. 2d 1317, 1334 (S.D. Fla. 1999) (“The Court
finds that the principle enunciated by the Supreme Court in Chevron does not apply to the case at
hand. . . . The President’s decision to exercise his waiver is given great deference by this Court;
however, his interpretation of the breadth of that waiver cannot belie the legislative authority from
which it stems. Accordingly, the Court declines to adopt the Government’s argument that it
apply Chevron in order to defer to the President’s interpretation of section 117(d)’s waiver
authority.”), vacated sub nom. Alejandre v. Telefonica Larga Distancia de P.R., Inc., 183 F.3d
1277 (11th Cir. 1999).
167. Stack, Reviewability, supra note 1, at 1173.
168. See Al-Bihani v. Obama, 619 F.3d 1, 45 (D.C. Cir. 2010) (Kavanaugh, J., concurring in
the denial of rehearing en banc) (“When interpreting a statute, a court ascertains what the statute
means by looking at the text and employing various interpretive principles and canons of statutory
construction.”); Landau, supra note 27, at 1948 (“[T]he Supreme Court has tended to return to the
ordinary administrative law requirement of a delegation as a necessary [requirement] of judicial
deference.”); Stack, Statutory President, supra note 1, at 557 (“In [Youngstown’s] framework, the
question of whether the president acted with statutory authority is a critical trigger . . . .”).
169. See, e.g., Hamlily v. Obama, 616 F. Supp. 2d 63, 68–69 (D.D.C. 2009) (“It is [the]
limited role [of the courts] to determine whether definitions crafted by either the Executive or the
Legislative branch, or both, are consistent with the President’s authority . . . .” (quoting
Boumediene v. Bush, 583 F. Supp. 2d 133, 134 (D.D.C. 2008))).
170. See, e.g., id. at 69 (“Although there is some disagreement regarding the extent of the
deference owed the Executive in this setting, it is beyond question that some deference is
required.”).
171. See Indep. Gasoline Marketers Council, Inc. v. Duncan, 492 F. Supp. 614, 616, 618–21
(D.D.C. 1980) (striking down the President’s efforts to impose a ten cent per gallon “conservation
fee” where the President argued that reliance on foreign oil threatened national security, but the
court noted that such a conservation fee would affect all gasoline sales and the impact on imports
would be only indirect).
172. See, e.g., Chamber of Commerce v. Reich, 74 F.3d 1322, 1332, 1339 (D.C. Cir. 1996)
(finding the President had exceeded his authority under the Procurement Act in issuing an
Executive Order barring federal contractors from hiring replacement workers during an economic
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strike because the Order was preempted by an independent statute, the National Labor Relations
Act).
173. See, e.g., Vermeule, supra note 19, at 1141–42 (“In a world of multiple and very vague
statutory delegations bearing on national security, foreign relations, and emergency powers,
judges have a great deal of freedom—not infinite freedom, of course—to
assign Youngstown categories to support the decisions they want to reach, rather than reach
decisions based on the Youngstown categories.”).
174. See id. at 1127 (“[Some] courts say that it is unsettled whether and when Chevron
supplies the relevant framework for presidential and administrative interpretations of statutes
bearing on national security and foreign relations.”); Stack, Statutory President, supra note 1, at
557–59; see also Landau, supra note 27, at 1927 (noting the difficulties in determining whether
presidential action is taken with overt or “implicit” congressional backing in the Youngstown
analytical framework).
175. 548 U.S. 557 (2006).
176. Id. at 624–25; see also Eskridge & Baer, supra note 131, at 1122 n.148 (“For
example . . . the Court declined to apply the Chevron framework, notwithstanding strong
arguments that . . . the President . . . [was] acting pursuant to congressional delegations of
lawmaking authority.”).
177. Hamdan, 548 U.S. at 622–24.
178. Id. at 623–24.
179. Id. at 622 (emphasis omitted) (quoting 10 U.S.C. § 836(b) (2000)).
180. Id. at 640 (Kennedy, J., concurring in part).
181. Id. at 680 (Thomas, J., dissenting).
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182. 897 F. Supp. 570, rev’d, 74 F.3d 1322 (D.C. Cir. 1996).
183. Id. at 573–74.
184. Id. at 577–78.
185. Id. (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Counsel, Inc., 467 U.S. 837, 844
(1984)).
186. Chamber of Commerce v. Reich, 74 F.3d 1322, 1325 (D.C. Cir. 1996).
187. 619 F.3d 1 (D.C. Cir. 2010) (en banc).
188. Id. at 45 (Kavanaugh, J., concurring in the denial of rehearing en banc) (citing Chevron,
467 U.S. at 842–45); see also Landau, supra note 27, at 1976 & n.378 (stating that Al-Bihani is
an example of a court giving “broad deference to the Executive Branch”).
189. Al-Bihani, 619 F.3d at 55 (Williams, J., concurring in the denial of rehearing en banc).
190. United States v. Lindh, 212 F. Supp. 2d 541, 556 (E.D. Va. 2002) (“The rationale of
Chevron is that a statutory ambiguity is essentially a delegation of authority by Congress to the
reasonable agency to resolve the ambiguity. By analogy, treaty interpretation and application
warrants similar Chevron deference to the President’s interpretation of a treaty, as American
treaty-makers may be seen as having delegated this function to the President in light of his
constitutional responsibility for the conduct of foreign affairs and overseas military operations.”).
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Goes to War, 118 HARV. L. REV. 2663, 2672 (2005) [hereinafter Sunstein, Administrative Law]
(noting that the President has a great deal of power to interpret ambiguities in congressional
enactments—“in war no less than in peace,” but interpretive principles call for a narrow
construction of presidential authority to invade constitutionally sensitive interests); Cass R.
Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law is, 115 YALE L.J. 2580,
2603–04 (2005) (arguing for a reading of United States v. Mead Corp., 533 U.S. 218 (2001) that
allows the President to qualify for Chevron deference).
200. Eisner, supra note 43 (arguing for Chevron deference for presidential national security
statutory interpretation); Eskridge & Baer, supra note 131, at 1085–179 (providing a
comprehensive treatment of deference to executive actors, including the President); Julian Ku &
John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the
Executive Branch, 23 CONST. COMMENT. 179, 195–97 (2006) (arguing that the Supreme Court
should have applied Chevron deference to the President’s interpretations of statutes and treaties
in Hamdan); Landau, supra note 27, at 1949; Eric A. Posner & Cass R. Sunstein, Chevronizing
Foreign Relations Law, 116 YALE L.J. 1170, 1204 (2007) (“[C]ourts should defer to the
executive’s judgment unless it is plainly inconsistent with the statute, unreasonable, or
constitutionally questionable.”).
201. See, e.g., Stack, Statutory President, supra note 1, at 590–99. Stack made similar
arguments with respect to reviews under Mead. Stack, Statutory Powers, supra note 1, at 304–10
(citing Mead, 533 U.S. 218).
202. Abbe R. Gluck et al., Unorthodox Lawmaking, Unorthodox Rulemaking, 115 COLUM.
L. REV. 1789, 1820–21 (2015) (citing President Obama’s “We Can't Wait” initiative, President
Obama’s directive to EPA to regulate climate change under the Clean Air Act, and President
Clinton’s directive to the FDA to interpret the Food, Drug, and Cosmetic Act to regulate tobacco
as examples).
203. See supra notes 164, 167 and accompanying text.
204. Ganesh Sitaraman, Foreign Hard Look Review, 66 ADMIN. L. REV. 489, 489 (2014)
(arguing that courts can use hard look review when reviewing foreign affairs).
205. Ashley S. Deeks, The Observer Effect: National Security Litigation, Executive Policy
Changes, and Judicial Deference, 82 FORDHAM L. REV. 827, 827 (2013) (arguing that courts play
an important role as observers).
206. Jack Goldsmith & John F. Manning, The President’s Completion Power, 115 YALE L.J.
2280, 2280 (2006) (“[T]he completion power sheds light on a structural symmetry that cuts across
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Articles I, II, and III of the Constitution – namely, that each of the three branches has some degree
of inherent power to carry into execution the powers conferred upon it.”).
207. See, e.g., Kagan, supra note 22, at 2375 (“The courts, by contrast, have ignored the
President’s role in administration action in defining the scope of the Chevron doctrine. . . . Courts
grant (or decline to grant) step-two deference to administrative interpretations of law irrespective
whether the President potentially could, or actually did, direct or otherwise participate in their
promulgation.”); Strauss, supra note 198, at 703 (arguing that the President does not have a non-
statutory power over how executive officials who have been statutorily delegated authority
implement laws).
208. Stack, Statutory President, supra note 1, at 539, 591 (“Of course, the Court in Chevron
also justified deference in virtue of the administrative agency’s ‘greater expertise’ in the field of
regulation. It might be objected that a generalist [P]resident does not have the same expertise as
an agency. . . . Nothing prevents a president from requiring the work of members of an agency in
drafting a detailed executive order. As a result, even if we concede that the [P]resident may have
less expertise than an agency—although how much is not clear—that deficit does not unseat the
strong grounds for applying Chevron to presidential orders based on the [P]resident’s heightened
accountability, visibility, and ability to coordinate policy.” (footnote omitted)).
209. Stack, Constitutional Foundations, supra note 1, at 1014.
210. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936).
211. David Zaring, CFIUS as a Congressional Notification Service, 83 S. CAL. L. REV. 81,
82 (2009).
212. 519 U.S. 452 (1997).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1219
216. Id.
217. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572 (4th Cir. 2017)
(holding that although the President has power to deny entry to aliens, the President’s power is
not absolute and does not allow disfavoring of one religion over another by issuing an executive
order denying entry to aliens from seven predominantly Muslim countries), vacated, 138 S. Ct.
353 (2017); see also N.Y. Times Co. v. United States, 403 U.S. 713, 714–15 (1971) (Black, J.,
concurring) (discussing the President’s attempts to censor newspapers) (“I believe that every
moment’s continuance of the injunctions against these newspapers amounts to a flagrant,
indefensible, and continuing violation of the First Amendment.”); Hawaii v. Trump, 859 F.3d
741, 755 (9th Cir. 2017) (per curiam) (deciding similarly to Int’l Refugee Assistance Project for
a second, revised executive order), vacated, 138 S. Ct. 377 (2017).
218. Int’l Refugee Assistance Project, 857 F.3d at 587 (citation omitted).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1221
219. United States v. U.S. Dist. Court, 407 U.S. 297, 320 (1972) (“Security surveillances are
especially sensitive because of the inherent vagueness of the domestic security concept, [and] the
necessarily broad and continuing nature of intelligence gathering . . . . We recognize . . . the
constitutional basis of the President’s domestic security role, but we think it must be exercised in
a manner compatible with the Fourth Amendment.”); see also United States v. Ehrlichman, 376
F. Supp. 29, 33–34 (D.C. Cir. 1974) (rejecting executive action on national security wiretaps
because it “would give the Executive a blank check to disregard the very heart and core of the
Fourth Amendment and the vital privacy interests that it protects”); Am. Civil Liberties Union v.
Nat’l Sec. Agency, 438 F. Supp. 2d 754, 778 (E.D. Mich. 2006) (“In this case, the President has
acted, undisputedly, as [the Foreign Intelligence Surveillance Act (FISA)] forbids. FISA is the
expressed statutory policy of our Congress. The presidential power, therefore, was exercised at
its lowest ebb and cannot be sustained.”), vacated, 493 F.3d 644 (6th Cir. 2007).
220. Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 758 F.3d 296, 319 (D.C. Cir. 2014).
The President relied on statutory authority in the Defense Production Act, 50 U.S.C. § 4565(d)(1)
(Supp. III 2016), that authorizes a president “to suspend or prohibit any covered transaction that
threatens to impair the national security of the United States.” Ralls Corp., 758 F.3d at 311
(quoting 50 U.S.C. app. § 2170(d)(1) (2012) (current version at 50 U.S.C. § 4565(d)(1))).
221. Brief for Appellees at 27, Ralls Corp., 758 F.3d 296 (No. 13–5315) (“The sweeping
language of the Defense Production Act encompasses the President's choice not to provide Ralls
with more notice than it had already received, his decision not to confide in Ralls his national
security concerns, and his judgment about the appropriate level of detail with which to publicly
articulate his reasoning.”). The Court adopted a plain language interpretation of this provision,
holding “that courts are barred from reviewing final ‘action[s]’ the President takes ‘to suspend or
prohibit any covered transaction that threatens to impair the national security of the United
States,’” but not from reviewing “a constitutional claim challenging the process preceding such
Presidential action.” Ralls Corp., 758 F.3d at 311 (alteration in original) (quoting 50 U.S.C. app
§ 2170(d)(1)).
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230. Sharon Buccino, NEPA Under Assault: Congressional and Administrative Proposals
Would Weaken Environmental Review and Public Participation, 12 N.Y.U. ENVTL. L.J. 50, 51
(2003).
231. See, e.g., 8 U.S.C. § 1379(4) (2012) (requiring the Attorney General and the Secretary
of State to consult with the Secretary of Treasury and report to Congress every two years
describing the “implications of the technology standard” to confirm identity); 16 U.S.C.
§ 1536(a)(2) (2012) (requiring every federal agency to consult with the Secretary of the Interior
before taking any action to insure that their actions are “not likely to jeopardize . . . endangered
species or threatened species”); 49 U.S.C. § 32902(i) (2012) (requiring the Secretary of
Transportation to consult with the Secretary of Energy in prescribing regulations for average fuel
economy standards).
232. See, e.g., 42 U.S.C. § 4332(C) (2012) (requiring that the responsible official “include
[an Environmental Impact Assessment] in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the quality of the human
environment”).
233. See, e.g., 10 U.S.C. § 1613(b) (2012) (requiring the Secretary of Defense to notify
Congress of any regulations made to carry out the Defense-Wide Intelligence Personnel Policy);
20 U.S.C. § 6571(c)(1) (2012) (requiring the Secretary of Education to provide a Senate and
House committee notice of intent to issue a notice of proposed rulemaking fifteen business days
prior to the notice).
234. Pub. L. No. 104-121, 110 Stat 868 (1996) (codified as amended at 5 U.S.C. §§ 801–08
(2012)).
235. 5 U.S.C. § 802.
236. Historically, the window occurs where there is a change in administration and Congress
is unhappy with the prior administration’s regulatory efforts. See Steven Greenhouse, House Joins
Senate in Repealing Rules on Workplace Injuries, N.Y. TIMES (Mar. 8, 2001),
https://www.nytimes.com/2001/03/08/us/house-joins-senate-in-repealing-rules-on-workplace-
injuries.html [https://perma.cc/DB3E-H72Y] for a description of Congress invoking this authority
to overturn President Clinton’s ergonomic workplace regulations in 2001. See also Stephen
Dinan, GOP Rolled Back 14 of 15 Obama Rules Using Congressional Review Act, WASH. TIMES
(May 15, 2017), https://www.washingtontimes.com/news/2017/may/15/gop-rolled-back-14-of-
15-obama-rules-using-congres/ [https://perma.cc/54GR-RA3P] (describing how Congress used
1224 FLORIDA LAW REVIEW [Vol. 70
the Congressional Review Act to roll back fourteen regulations). See generally Nina A.
Mendelson, Agency Burrowing: Entrenching Policies and Personnel Before a New President
Arrives, 78 N.Y.U. L. REV. 557 (2003) (discussing Executive action taken before a new President
takes office).
237. Colin S. Diver, Presidential Powers, 36 AM. U. L. REV. 519, 522 (1987).
238. Laurence H. Tribe, Transcending the Youngstown Triptych: A Multidimensional
Reappraisal of Separation of Powers Doctrine, 126 YALE L.J. FORUM 86, 86–87 (2016).
239. Jessica M. Stricklin, The Most Dangerous Directive: The Rise of Presidential
Memoranda in the Twenty-First Century as a Legislative Shortcut, 88 TUL. L. REV. 397, 405–06
(2013); Peter M. Shane, The Presidential Statutory Stretch and the Rule of Law, 87 U. COLO. L.
REV. 1231, 1249–50 (2016).
240. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most
Dangerous Branch from Within, 115 YALE L.J. 2314, 2319–20 (2006) (arguing Congress’s failure
to affirm or deny the President’s actions after 9/11 led to the “demise of the congressional
checking function”). See generally THE FEDERALIST NO. 51 (James Madison) (explaining that the
constant aim of our system of government “is to divide and arrange the several offices in such a
manner as that each may be a check on the other”).
241. Katyal, supra note 240, at 2321.
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1225
242. See Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on
Executive Power, 54 UCLA L. REV. 1559, 1601 (2007) (arguing that current internal legal
constraint practices are insufficient and Congress, the courts, and the public should work together
to empower Executive Branch legal advisors to constrain the President to his constitutional
authority and obligations).
243. Id. at 1564.
244. Id.
245. See, e.g., Anya Bernstein, The Hidden Costs of Terrorist Watch Lists, 61 BUFF. L. REV.
461, 465 (2013) (arguing that the secret algorithms used in creating watch lists have little
appreciable value in court, so internal regulation is necessary); Katyal, supra note 240, at 2318
(proposing internal check designs that allow for “temporary departures when the need is great”);
Gillian E. Metzger, The Interdependent Relationship Between Internal and External Separation
of Powers, 59 EMORY L.J. 423, 457 (2009) (calling for the reinforcing of internal Executive Branch
constraints in addition to achieving separation of powers goals); Paul Ohm, Electronic
Surveillance Law and the Intra-Agency Separation of Powers, 47 U.S.F. L. REV. 269, 271 (2012)
(arguing that intra-agency separation of powers, pitting the Justice Department against itself,
would create competition for interpretations of the law); M. Elizabeth Magill, Can Process Cure
Substance? A Response to Neal Katyal’s “Internal Separation of Powers,” 116 YALE L.J. FORUM
(Nov. 3, 2006), https://www.yalelawjournal.org/forum/can-process-cure-substance-a-response-
to-neal-katyala8217s-a8220internal-separation-of-powersa8221 [https://perma.cc/KDF9-VANT]
(arguing that administrative controls were in place after September 11th, but the courses of action
were taken despite the objections).
246. Katyal, supra note 240, at 2318; see also Bernstein, supra note 245 (“[W]e must look
to institutional design and internal self-regulation to solve those problems that cannot reach the
courts.”); Ohm, supra note 245 (proposing “intra-agency separations of powers” to create
competition between agencies for statutory and constitutional interpretations).
247. Katyal, supra note 240, at 2317.
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256. Daniel Abebe, The Global Determinants of U.S. Foreign Affairs Law, 49 STAN. J. INT’L
L. 1, 15–16 (2013).
257. Jordan A. Brunner, The (Cyber) New Normal: Dissecting President Obama’s Cyber
National Emergency, 57 JURIMETRICS J. 397, 425 (2017) (citing Jack Goldsmith, Why Congress
is Effectively Powerless to Stop the Iran Deal (and Why the Answer is Not the Iran Review
Act), LAWFARE (July 20, 2015, 8:23 AM), https://www.lawfareblog.com/why-congress-
effectively-powerless-stop-iran-deal-and-why-answer-not-iran-review-act [https://perma.cc/28EA
-8XPN].
258. Koh, supra note 19; see also BRUCE ACKERMAN, BEFORE THE NEXT ATTACK:
PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM 4 (2006) (arguing for an “emergency
constitution” framework statute that would limit a president’s emergency powers to an extremely
short-term response that would lapse unless a majority of both houses voted to continue them,
requiring reauthorization every two months by increasing supermajorities of Congress).
259. Stack, Reviewability, supra note 1, at 1174.
260. Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002) (citing
Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1331 (D.C. Cir. 1996)).
261. Id.; see also Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat.
224, 224 (2001), as reprinted in 50 U.S.C. § 1541 note (2012) (authorizing the President “to use
all necessary and appropriate force” against those responsible for the September 11, 2001 terrorist
attacks); Reich, 74 F.3d at 1331 (noting no abuse of discretion claims against a president where
the statute “contains no limitations on the President’s exercise of that authority”).
262. Mountain States, 306 F.3d at 1136 (quoting Dalton v. Specter, 511 U.S. 462, 476
(1994)).
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organizes them into three categories: (1) significant, (2) moderate, and
(3) minimal.
1. Significant Procedural Constraints
Over the years, Congress has utilized a number of statutory provisions
to impose significant procedural constraints on the President’s exercise
of those delegated statutory powers. Constraints in this category require
the President to make specific findings, as well as take some additional
measures such as consultations, reports, or congressional approval. In
1977, Congress enacted the International Emergency Economic Powers
Act (IEEPA)263 to limit executive abuses of the national emergency
powers conferred on the President sixty years earlier by the Trading with
the Enemy Act (TWEA).264 Under the IEEPA, the President was required
to find an “unusual and extraordinary threat, which has its source in
whole or substantial part outside the United States, to
the national security, foreign policy, or economy of the United States, if
the President declares a national emergency with respect to such
threat.”265
But Congress went further, imposing substantive limits on the
President, requiring the President to “consult” with Congress before
using these powers,266 specifying under what authority the President is
declaring a national emergency,267 and requiring the President to submit
reports to Congress every six months.268 Harold Koh has noted how
Congress differentiated the constraints on a president depending on
whether it was wartime or nonwartime.269 Nonwartime activities required
significant additional procedural constraints, conditioning the President’s
263. Pub. L. No. 95-223, 91 Stat. 1626 (1977) (codified as amended at 50 U.S.C. §§ 1701–
06 (2012)).
264. Pub. L. No. 65-90, 40 Stat. 411 (1917) (codified as amended in scattered sections of 50
U.S.C.); Regan v. Wald, 468 U.S. 222, 227–28 (1984).
265. 50 U.S.C. § 1701; see also United States v. Amirnazmi, 645 F.3d 564, 576 (3d Cir.
2011) (discussing the requirements for activating IEEPA).
266. 50 U.S.C. § 1703(a) (“The President, in every possible instance, shall consult with the
Congress before exercising any of the authorities granted by this chapter and shall consult
regularly with the Congress so long as such authorities are exercised.”).
267. Id. § 1703(b) (“Whenever the President exercises any of the authorities granted by this
chapter, he shall immediately transmit to the Congress a report specifying— . . . (3) the authorities
to be exercised and the actions to be taken in the exercise of those authorities to deal with those
circumstances . . . .”).
268. Id. § 1703(c) (“At least once during each succeeding six-month period after transmitting
a report pursuant to subsection (b) of this section . . . the President shall report to the Congress
with respect to the actions taken, since the last such report, in the exercise of such authorities, and
with respect to any changes which have occurred . . . .”).
269. Koh, supra note 19, at 1264.
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270. Id.
271. 15 U.S.C. § 713d-1(a) (Supp. III 2016).
272. Id.
273. Pub. L. No. 115-44, 131 Stat. 886 (2017) (codified in scattered sections of 22 U.S.C.).
274. 22 U.S.C. § 9511(a)(1) (Supp. V 2018).
275. Id. § 9511(a)(3)–(4).
276. Id. § 9511(b)(1)–(3) (“[T]he President may not take that action unless a joint resolution
of approval with respect to that action is enacted in accordance with subsection (c).”).
277. Id. § 9511(b)(6) (“Notwithstanding any other provision of law, if a joint resolution of
disapproval relating to a report submitted under subsection (a)(1) proposing an action described
1230 FLORIDA LAW REVIEW [Vol. 70
in subsection (a)(2) is enacted in accordance with subsection (c), the President may not take that
action.”).
278. Emily Cadei, Russian Sanctions: Congress Attempts to Reassert Power Over White
House, NEWSWEEK (June 14, 2017, 6:21 P.M.), https://www.newsweek.com/congress-power-
russia-sanctions-trump-625832 [https://perma.cc/SG9E-QUBD] (reporting that Senator Crapo
stated “[w]e intend to use this review model on all sanctions regimes moving forward, and I intend
to work to apply it to Iran”).
279. Pub. L. No. 66-280, 41 Stat. 1063 (1920) (codified as amended in scattered sections of
16 U.S.C.).
280. 16 U.S.C. § 824o-1(b)(1) (Supp. V. 2018).
281. Id.
282. Id. § 824o-1(b)(3).
283. Akhil Reed Amar, The President, the Cabinet, and Independent Agencies, 5 U. ST.
THOMAS J.L. & PUB. POL’Y 36, 50 (2010) (discussing how the President has a broad set of powers
over so-called independent agencies, and that “this casual label of independent agency shouldn't
blind us to the key point that these officials, quote-unquote, independent, falls wholly within the
executive branch, albeit with varied rules of composition authority and removal”); Anderson P.
Heston, The Flip Side of Removal: Bringing Appointment into the Removal Conversation, 68
N.Y.U. ANN. SURV. AM. L. 85, 95–96 (2012) (“[T]he President possesses powerful tools to bring
his influence to bear on the independent agencies, such that uncooperative officials attempting to
implement policies other than the President's preferred ones will find themselves swimming
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1231
upstream. Resignation (and a subsequent private sector position) may seem a more appealing
alternative than doing battle with the President of the United States.”).
284. Pub. L. No. 87-794, 76 Stat. 872 (codified as amended in scattered sections of 19
U.S.C.).
285. 19 U.S.C. § 1862(c) (2012).
286. Id. § 1862(b).
287. See id. § 1862. Proposed Amendment to the Global Trade Accountability Act of 2017
would provide Congressional review of the imposition of duties and other trade measures by the
Executive Branch: “Safeguarding national security. Section 232(c)(1)(B) of the Trade Expansion
Act of 1962 (19 U.S.C. 1862(c)(1)(B)) is amended by inserting ‘subject to approval under section
155 of the Trade Act of 1974,’ after ‘shall’.” S. 177, 115th Cong. § 155(c)(8) (2017).
288. See Nance & Wasserman, supra note 68, at 928–29 (citing H.R. REP. NO. 1761, at 13–
15 (1958)). The statute was first entered into law as the Trade Expansion Act of 1954. Id. at 928.
289. 19 U.S.C. § 1862(d) (“[T]he Secretary and the President shall, in light of the
requirements of national security and without excluding other relevant factors, give consideration
to domestic production needed for projected national defense requirements, the capacity of
domestic industries to meet such requirements, existing and anticipated availabilities of the human
resources, products, raw materials, and other supplies and services essential to the national
defense, the requirements of growth of such industries and such supplies and services including
the investment, exploration, and development necessary to assure such growth, and the
importation of goods in terms of their quantities, availabilities, character, and use as those affect
such industries and the capacity of the United States to meet national security requirements. In
the administration of this section, the Secretary and the President shall further recognize the close
relation of the economic welfare of the Nation to our national security, and shall take into
consideration the impact of foreign competition on the economic welfare of individual domestic
industries; and any substantial unemployment, decrease in revenues of government, loss of skills
or investment, or other serious effects resulting from the displacement of any domestic products
by excessive imports shall be considered, without excluding other factors . . . .”).
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TEA have been challenged on numerous grounds, but the courts seem to
be appeased where Congress has provided additional guidelines to assist
in the decision-making process.290
2. Moderate Procedural Constraints
Congress has also imposed a category of more moderate procedural
constraints—those that only require the President to make specific
findings before acting on the power. For example, Congress amended the
Defense Production Act of 1950291 with the Foreign Investment and
National Security Act of 2007 (FINSA).292 Section 6 granted the
President broad authority to suspend or prohibit a foreign investment if
the President finds that the investment threatens to impair
the national security of the United States.293 Congress conditions this
power on specific findings on the part of the President.294 The President
must first find (1) “there is credible evidence that leads the President to
believe that the foreign interest exercising control might take action that
threatens to impair the national security;” and (2) other laws would be
inadequate “for the President to protect the national security in the matter
before the President.”295 The statute provides the President with some
guidance as to what constitutes a threat which could “impair national
security,” as discussed supra at Section II.A.296
290. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 569–70 (1976) (“[T]he
broad ‘national interest’ language of the proposal, together with its lack of any standards for
implementing that language, stands in stark contrast with . . . § 232(c)’s articulation of standards
to guide the invocation of the President’s powers under § 232(b). In light of these clear differences
between the rejected proposal and § 232(b), we decline to infer . . . that Congress felt that the
President had no power to impose monetary exactions under § 232(b).”); Consumers Union of
U.S., Inc. v. Kissinger, 506 F.2d 136, 143 (D.C. Cir. 1974) (“The President is not bound in any
way to refrain from taking such steps if he later deems them to be in the national interest, or if
consultation proves unavailing to meet unforeseen difficulties . . . .”); Massachusetts v. Simon,
Nos. 75-0192, 75-0130, 1975 WL 3636, at *3 (D.D.C. 1975) (“Furthermore, Section 232 provides
certain standards, even though general and somewhat imprecise.”).
291. Pub. L. No. 81-774, 64 Stat. 798 (codified as amended in scattered sections of 50
U.S.C.).
292. Pub. L. No. 110-49, 121 Stat. 246 (codified as amended at 50 U.S.C. § 4565 (Supp. III
2016)).
293. Id. § 6 (codified as amended at 50 U.S.C. § 4565(d)).
294. 50 U.S.C. § 4565(d)(4).
295. Id.
296. Id. § 4565(a). This power has been exercised three times by presidents to block
investments, such as a divesture of United States aerospace manufacturer, MAMCO, by Chinese
National Aero-Technology Import and Export Corporation, a divesture of wind farm companies
from Ralls, a Chinese company, and the purchase of Aixtron. Ralls Corp. v. Comm. on Foreign
Inv. in the U.S., 758 F.3d 296, 306 (D.C. Cir. 2012); Proclamation No. 3195, 55 Fed. Reg. 3935
(Feb. 1, 1990); Proclamation No. 9550, 81 Fed. Reg. 88,607 (Dec. 7, 2016).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1233
307. Abebe, supra note 256, at 14. Others may question whether the three categories should
be adjusted, not ranked on whether the procedural constraint itself is minimal, moderate, or
significant, but whether the effect of the procedural constraint is such. Notice, for instance, may
not always have minimal effects on the proposed action. The administrative difficulties of
applying procedural constraints based on the effects may be prohibitive, however, as the effects
may be too particularized and not apparent until after the constraint has been implemented. Should
Congress eventually be able to identify a pattern that emerges, the effects should definitely be
taken into account and the constraints imposed can be adjusted.
308. See, e.g., Jonathan Masur, A Hard Look or a Blind Eye: Administrative Deference and
Military Deference, 56 HASTINGS L.J. 441, 460 (2004) (citing Padilla v. Bush, 233 F. Supp. 2d
564 (S.D.N.Y. 2002) (“[T]he President’s constitutional powers, in addition to the powers
delegated to him by Congress, compel[] the judiciary to afford the Executive wide deference with
regard to its wartime factual assertions.”).
309. See supra Section III.A.
310. Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272,
§ 701(b)(1), 112 Stat. 2413, 2413, as reprinted in 5 U.S.C. app. at 32 (2000).
311. Pub. L. No. 95-452, 92 Stat 1101 (codified as amended at 5 U.S.C. app. §§ 1–13 (Supp.
V 2018)).
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SMU L. REV. 205, 207 (2000) (“The isolation of national security cases from traditional statutory
interpretation critiques is evident in judicial decisions.”).
318. See, e.g., Egan, 484 U.S. at 527 (holding that the authority of the President “to classify
and control access to information bearing on national security and to determine whether an
individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give
that person access to such information flows primarily from this constitutional investment of
power in the President [to serve as Commander in Chief] and exists apart from any explicit
congressional grant”).
319. E.g., Al-Bihani v. Obama, 619 F.3d 1, 50 (D.C. Cir. 2010) (Kavanaugh, J., concurring
in the denial of rehearing en banc) (“In 1995, President Clinton deployed troops to Bosnia without
congressional authorization, citing only his independent Article II authority . . . . President Clinton
again acted without congressional authorization when he ordered air strikes in
Kosovo . . . . Similarly, President George W. Bush invoked only his Article II authority when he
deployed U.S military forces to Haiti without congressional authorization in 2004.”).
320. See, e.g., Sunstein, Administrative Law, supra note 199, at 2671 (“[S]tatutory
enactments involving core executive authority should be construed . . . so as to avoid the
constitutional difficulties that a narrow construction would introduce.”).
321. Al-Bihani, 619 F.3d at 48 (Kavanaugh, J., concurring in the denial of rehearing en banc).
322. Id.
323. Id. (citing Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004) (plurality opinion)).
1238 FLORIDA LAW REVIEW [Vol. 70
324. Al-Bihani, 619 F.3d at 50 n.28 (Kavanaugh, J., concurring in the denial of rehearing en
banc).
325. 351 U.S. 536 at 568–69 (1956).
326. Id.
327. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J.,
concurring).
328. Id. at 637–38 (Jackson, J., concurring).
329. 440 U.S. 125 (1979).
330. Id. at 145 n.25 (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969)).
331. 651 F.2d 1278 (9th Cir. 1981).
332. Id. at 1283.
333. 76 M.J. 4 (C.A.A.F. 2017).
334. Id. at 6.
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1239
335. See the interesting work of Silverstein and Hanley, supra note 93, at 1457, finding that
that courts are more willing to uphold presidential actions where the President is enjoying high
public opinion approval ratings.
336. See supra notes 104–06 and accompanying text.
337. Pearlstein, supra note 9, at 790 (“Delegation could be tolerated, but only because it was
possible to maintain an offsetting power through judicial review. In this view, to the extent a
doctrine of deference disables the courts from helping to maintain that system of ‘dynamic
equilibrium,’ it impermissibly encroaches on the structural mandate of the judicial power.”
(footnotes omitted)).
338. Supra Section III.B.1.
339. Koh, supra note 19, at 1264.
340. Id. at 1264–65 & n.37 (“Presidents rarely terminated TWEA national emergencies. See
Note, The International Emergency Economic Powers Act: A Congressional Attempt to Control
Presidential Emergency Power, 96 HARV. L. REV. 1102, 1104 (1983) ([explaining that] while
Congress was considering IEEPA’s enactment in 1977, President Roosevelt’s 1933 TWEA
declaration of national banking emergency was still in force). Thus, ‘TWEA emergency authority
operated as a one-way ratchet to enhance greatly the President's discretionary authority over
foreign policy.’ Regan v. Wald, 468 U.S. 222, 245 (1984) (Blackmun, J., dissenting).”); see also
1240 FLORIDA LAW REVIEW [Vol. 70
Brunner, supra note 257, at 407 (“[T]here have been virtually no substantive limits placed on a
[P]resident acting in a national emergency as a result of the IEEPA’s passage.”).
341. See S. REP. NO. 100-71, at 135–36 (1987) (discussing § 232(b) of the Trade Expansion
Act of 1962).
342. See id.
343. Indep. Gasoline Marketers Council, Inc. v. Duncan, 492 F. Supp. 614, 620–21 (D.D.C.
1980). The court ruled that “TEA does not authorize the President to impose general controls on
domestically produced goods either through a monetary mechanism or through a quantitative
device.” Id. at 618.
344. See, e.g., Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 548 (1976).
Taken as a whole then, the legislative history of § 232(b) belies any suggestion
that Congress, despite its use of broad language in the statute itself, intended to
limit the President's authority to the imposition of quotas and to bar the President
from imposing a license fee system like the one challenged here. To the contrary,
the provision’s original enactment, and its subsequent re-enactment in 1958,
1962, and 1974 in the face of repeated expressions from Members of Congress
and the Executive Branch as to their broad understanding of its language, all lead
to the conclusion that § 232(b) does in fact authorize the actions of the President
challenged here. Accordingly, the judgment of the Court of Appeals to the
contrary cannot stand.
Id. at 570–71.
345. Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601,
1621, 1622, 1631, 1641, 1651 (2012)).
346. Id. § 1621(a) (“the President is authorized to declare such national emergency”), but §
1601(a) was to provide for termination of the majority of national emergencies within two years
of its passage. See also Memorandum Opinion for the Counsel to the President: Applicability of
the National Emergencies Act to Statutes That Do Not Expressly Require the President to Declare
a National Emergency 1 (Aug. 24, 2016) https://www.justice.gov/opinion/file/914396/download
[https://perma.cc/X7C3-VLN6] (finding that the NEA’s “coverage is not limited to statutes
that expressly require the President to declare a national emergency, but rather extends to any
statute “conferring powers and authorities to be exercised during a national emergency,” unless
Congress has exempted such a statute from the Act.”)
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1241
347. Id. (footnotes omitted) (quoting Aaron S. Klieman, Preparing for the Hour of Need:
The National Emergencies Act, 9 PRESIDENTIAL STUD. Q. 47, 54 (1979)). See generally S. REP.
NO. 93-549, at 14 (1973), https://ia802500.us.archive.org/3/items/senate-report-93-549/senate-
report-93-549.pdf [https://perma.cc/F3QV-LXC4] (“[A] legislative formula needs to be
devised . . . by which Congress can exercise effective oversight over . . . actions . . . taken
pursuant to a state of national emergency as well as providing a regular and consistent procedure
for the termination of such grants of authority.”).
348. Kim Lane Scheppele, Small Emergencies, 40 GA. L. REV. 835, 843–44 (2006); As of
2019, 31 emergencies remain active, many of which have been active for more than two years.
Ryan Struyk, Trump’s Wall Would Be the 32nd Active National Emergency, (Jan. 10, 2019, 12:46
PM), https://www.cnn.com/2019/01/07/politics/trump-wall-active-national-emergency/index.
html [ https://perma.cc/N6Y2-FKRU].
349. “[D]uring the 40 years the law has been in place, Congress has not met even once, let
alone every six months, to vote on whether to end” the national emergencies. See Elizabeth
Goitein, What the President Could Do If He Declares a State of Emergency, (Jan./Feb. 2019),
https://www.theatlantic.com/magazine/archive/2019//01/presidential-emergency-powers/
576418/ [https://perma.cc/75TK-BB3H]; See also, Koh supra note 19, at 1291 (“[T]he President
has won because the federal courts have usually tolerated his acts, either by refusing to hear
challenges to those acts, or by hearing those challenges and then affirming his authority on the
merits.”).
1242 FLORIDA LAW REVIEW [Vol. 70
350. Faaris Akremi, Does Justice “Need to Know”?: Judging Classified State Secrets in the
Face of Executive Obstruction, 70 STAN. L. REV. 973, 976 (2018).
351. Robert P. Deyling, Judicial Deference and De Novo Review in Litigation Over National
Security Information Under the Freedom of Information Act, 37 VILL. L. REV. 67, 67 (1992)
(footnote omitted).
352. Robert Bejesky, National Security Information Flow: From Source to Reporter’s
Privilege, 24 ST. THOMAS L. REV. 399, 402–03 (2012) (footnote omitted) (“White House
Executive Orders designate what should be a classified secret, but the [P]resident has considerable
interpretive latitude and the ultimate decision over what, how, and to what extent information
should be classified or declassified is generally unreviewable.”).
353. Id. at 426.
354. See, e.g., Devin S. Schindler, Between Safety and Transparency: Prior Restraints,
FOIA, and the Power of the Executive, 38 HASTINGS CONST. L.Q. 1, 12–13, 22 (2010) (discussing
the battle between the ACLU and the Department of Defense over photographs, documentation,
and other information regarding the torture of prisoners detained at Abu Ghraib prison, and
arguing that “[t]he case . . . highlights the dilemma faced by the Executive when confronted with
a demand to release nonconfidential information the President and his agents legitimately believe
will cause substantive, physical harm to Americans”).
355. Id. at 30; accord 50 U.S.C. § 401 note (2006) (Savings Provisions).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1243
356. Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322, 1332 (D.C. Cir. 1996).
357. Foreign Investment and National Security Act of 2007, Pub. L. No. 110-49, § 6, 121
Stat. 246, 256 (codified as amended at 50 U.S.C. § 4565 (Supp. III 2016)) (“[t]he actions of the
President under paragraph (1) of subsection (d) and the findings of the President under paragraph
(4) of subsection (d) shall not be subject to judicial review”).
358. Dalton v. Specter, 511 U.S. 462, 473 (1994).
359. Reich, 74 F.3d at 1331.
360. Id. at 1332.
361. 758 F.3d 296 (D.C. Cir. 2014).
362. Id. at 312. See supra note 220–21 for a discussion of the Defense Production Act.
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incidental to the primary purposes of the statute. Congress also may be limited in this approach
by the president’s veto authority. One possibility that eliminates this problem for future statutes
is the use of sunset provisions. See generally, Emily Berman, The Paradox of Counterterrorism
Sunset Provisions, 81 FORDHAM L. REV. 1777 (2013).
370. Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended in scattered sections of
42 U.S.C.).
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371. See Hamdi v. Rumsfeld, 542 U.S. 507, 526–33 (2004) (plurality opinion) (rejecting the
government proposal that a president must show “some evidence” to support executive action
from a congressional delegation and finding the President’s generalized finding about the viability
of criminal trials was “insufficient”); Cole v. Young, 351 U.S. 536, 551 (1956) (requiring specific
evidence to show that the nation’s safety was imperiled). A similar justification has been imposed
on executive agencies. See, e.g., Burkhart v. Saxbe, 397 F. Supp. 499, 504 (E.D. Pa. 1975)
(holding that the defendants (FBI) could not dismiss a claim under § 2520 by simply stating that
defendants were within a national security exemption without supported statements which would
show that (1) surveillance was done for national security purposes and (2) the allegation of
national security comported with the congressional purpose of 18 U.S.C. § 2511(3)). But see
United States v. U.S. Dist. Court, 407 U.S. 297, 320 (1972) (arguing on behalf of the government
that the courts lack knowledge and techniques necessary to determine whether there was a
probable cause to believe that surveillance was necessary to protect national security).
372. 673 F. App’x 93 (2d Cir. 2016).
373. Id. at 95–96 (citing N.Y. Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black,
J., concurring)). The court added that considerable deference is accorded to the Executive in
evaluating the facts. Id. at 96.
374. Paton v. La Prade, 469 F. Supp. 773, 782 (D.N.J. 1978).
375. 804 F.3d 417 (D.C. Cir. 2015).
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384. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017), revoked by Exec. Order
No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017).
385. See id.; Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1235 (D. Haw.) (“According to the
Government, the Court must afford the President deference in the national security context and
should not ‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially
legitimate and bona fide reason.’” (alteration in original) (quoting Gov’t Memorandum in
Opposition to Motion for TRO at 42–43, Hawai’i v. Trump, 245 F. Supp. 3d 1227 (No. 17-0050
DKW-KSC), ECF No. 145)), aff’d in part and vacated in part, 859 F.3d 741 (9th Cir.), vacated,
138 S. Ct. 377 (2017).
386. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 586–87 (4th Cir.),
vacated, 138 S. Ct. 353 (2017).
387. See Hawai’i v. Trump, 245 F. Supp. 3d. at 1237; see also Int’l Refugee Assistance
Project, 241 F. Supp. 3d. at 554–56 (explaining that the INA does not provide the President a
basis to act discriminatorily in an Executive Order).
388. 857 F.3d 554 (4th Cir.), vacated, 138 S. Ct. 353 (2017).
389. Id. at 572.
390. Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017).
391. Int’l Refugee Assistance Project, 857 F.3d at 596.
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398. Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017).
399. Trump v. Hawaii, 138 S. Ct. 2392, 2406 (2018).
400. Id. at 2400.
401. Id. at 2418 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)).
402. Id. at 2408 (quoting 8 U.S.C. § 1182(f) (2012)).
403. Id. at 2409 (emphasis omitted) (quoting 8 U.S.C. § 1182(f)).
404. Id. at 2400 (citing Webster v. Doe, 486 U.S. 592, 600 (1988)).
405. Id. at 2400–01 (citing Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187–88 (1993)).
2018] A STATUTORY NATIONAL SECURITY PRESIDENT 1251
or both.414 Whereas courts may defer to the President over Congress for
constitutionally authorized national security actions, courts may be more
willing to defer to Congress over the President for statutorily authorized
national security actions.
Importantly, in his dissent in Trump v. Hawaii, Justice Breyer states
that the statute does require that there be “find[ings]” that the grant of
visas to foreigners “would be detrimental to the interests of the United
States.”415 The majority found the President’s findings to be sufficient,
but the broad text of the statute again suggests that Congress could
provide more requirements than merely directing a president to “find.”
For instance, Congress could require Presidents to provide “sufficient” or
“overwhelming” documentation to support the alleged national security
interests, including specific threats. There are a number of ways for courts
to handle such sensitive information,416 but the default should not be for
courts to blindly decline to perform the analysis. As just one example,
these findings could be confidential and released to the courts for in
camera review.417 Without any type of review, there is nothing to provide
a check on a rogue executive, a result that few would find palpable.
Justice Sotomayor takes a much stronger position in her dissent, noting
that the President’s policy “masquerades behind a façade of national-
security concerns”418 and is merely “window dressing” to the President’s
discriminatory animus against Islam.419 She notes that “[d]eference is
different from unquestioning acceptance.”420 In short, Congress is within
its power to impose procedural constraints on a president, and where they
have, courts can and should enforce them.
B. From Acute to Chronic Threats
This last Section provides additional considerations for a Congress
contemplating procedural constraints, namely how the level of procedural
414. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“[R]elations with foreign
powers . . . are frequently of a character more appropriate to either the Legislative or the
Executive . . . .” (emphasis added)).
415. Trump v. Hawaii, 138 S. Ct at 2429 (Breyer, J., dissenting) (alteration in original)
(quoting 8 U.S.C. § 1182(f)).
416. See, e.g., Kwoka, supra note 119, at 108, 144 (arguing against “the exceptional
procedures applied to national security secrecy”).
417. See, e.g., 50 U.S.C. § 1702(c) (2012) (“In any judicial review of a determination made
under this section, if the determination was based on classified information (as defined in section
1(a) of the Classified Information Procedures Act) such information may be submitted to the
reviewing court ex parte and in camera. This subsection does not confer or imply any right to
judicial review.”); “The legislature cannot act effectively if it is at the mercy of the executive for
information.” See ACKERMAN, supra note 258, at 85. For a more thorough discussion of ways to
maintain secrecy in national security litgation, see Shirin Sinnar, Procedural Experimentation and
National Security in the Courts, 106 CALIF. L. REV. 991 (2018).
418. Trump v. Hawaii, 138 S. Ct. at 2433 (Sotomayor, J., dissenting).
419. Id. at 2440.
420. Id. at 2441 n.6.
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421. Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).
422. Brunner, supra note 257, at 397. This conception of an acute national security concern
comports with governmental interpretations of a national “emergency.” See CRS Report for
Congress, National Emergency Powers at CRS-5 (Aug. 30, 2007), https://fas.org/sgp/crs/
natsec/98-505.pdf [https://perma.cc/C77S-FPRA] (acknowledging the difficulties of definiting
national emergencies and suggesting an emergency is “sudden, unforeseen, and of unknown
duration”). Similarly, Congress rejected an amendment to the NEA that would have “limit[ed] its
use to situations in which war has already been declared or the United States has been attacked,
unless an emergency is specifically declared by joint resolution of Congress.” Lobel, supra note
120, at 1429 (citing 21 CONG. REC. 276456 (Sept. 4, 1975)).
423. See Bertrand, supra note 90.
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429. See Sudha Setty, The President’s Private Dictionary: How Secret Definitions
Undermine Domestic and Transnational Efforts at Executive Branch Accountability, 24 IND. J
GLOBAL LEGAL STUD. 513, 532 (2017) (discussing the uncertainty of how the Obama
administration interpreted “imminence” when authorizing drone strikes).
430. Halperin v. Kissinger, 606 F.2d 1192, 1201 (D.C. Cir. 1979).
431. Bandes v. Harlow & Jones, Inc., 852 F.2d 661, 670 (2d Cir. 1988) (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 598 (1952) (Frankfurter, J., concurring)).
432. See Crockett v. Reagan, 558 F. Supp. 893, 899–901 (D.D.C. 1982) (providing, in dicta,
an interpretation of a federal statute’s presidential reporting requirement when the President
determines American soldiers face “imminent” hostility, although finding issue regarding
presidential action as a non-justiciable political question); United States v. Reilly Tar & Chem.
Corp., 546 F. Supp. 1100, 1109–14 (D. Minn. 1982) (relying upon legislative history of federal
environmental statutes to determine the meaning of “imminent and substantial endangerment” in
upholding presidential action).
433. See, e.g., Mark J. Rozell, Executive Privilege Revived?: Secrecy and Conflict During
the Bush Presidency, 52 DUKE L.J. 403, 403–04 (2002); Heidi Kitrosser, Secrecy and Separated
Powers: Executive Privilege Revisited, 92 IOWA L. REV. 489, 491 (2007); Robert M. Chesney,
State Secrets and the Limits of National Security Litigation, 75 GEO. WASH. L. REV. 1249 (2007);
David E. Pozen, Deep Secrecy, 62 STAN. L. REV. 257 (2010). See generally SUDHA SETTY,
NATIONAL SECURITY SECRECY: COMPARATIVE EFFECTS ON DEMOCRACY AND THE RULE OF LAW
(2017).
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434. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Jackson, J.,
concurring).
435. Id. at 652.
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APPENDIX A