National Security Flashcards
Justice Jackson’s Framework - Category 1
When P Acts w Delegated Authority - P acts pursuant to an express or implied auth of Congress
• P auth at MAX b/c it incl all he posses in his own right + all Congress can delegate
Justice Jackson’s Framework - Category 2
P acts w Congressional Acquiescence - P can only rely on his own independent powers. BUT there’s zone of twilight (P + Congress may have concurrent auth or distribution is uncertain)
• need long “customary practice” (systematic pattern)
• not clear who has power
Justice Jackson’s Framework - Category 3
P takes measures incompatible w express/implied of Congress
• P power minus any con power of Congress over matter
Categories:
1. P clear/exclusive con authority = statutory restriction will fail
2. If con silent/ambiguous/conflicting - balance extent of intrusion against need to promote objectives given constitutionally to congress
Article 2 - Executive Powers
1) executive power
2) CINC
3) Take Care that the Laws be faithfully executed
What was the precise issue in Curtis v. Wright case and what role did the Court give to the executive regarding foreign relations?
I: whether an otherwise uncon delegation of legislative power to executive can be sustained bc goal is to provide relief in foreign conflict
Ct: non delegation principle doesnt apply bc P is sole organ of fed gov in intl relations
Why does the Court tolerate such a broad delegation of authority to the President in C/W?
In the “external realm” (foreign affairs), President’s inherent power is much more expansive than regarding internal affairs.
In what JJ tier does the C/W case fall?
Category 1 b/c Congress passed a joint resolution criminalizing selling weapons to certain countries, but gave President the power to choose which countries those were.
What are the 3 Presidential war authorities?
1) Inherent (defensive to repel attack /emergency)
2) Customary
3) Core command authority in title of CINC
Does the President have some core “command” authority? From what does it flow, and is it beyond Congress’s regulatory reach?
- Flows from Article 2 CINC
- Depends if Congress has spoken on the issue:
- Broad: P as CINC has preclusive + inherent authority to command military in authorized armed conflict
- Narrow: P is merely at top of military chain of command w no independent war policy making authority
How did Little v. Barreme address the authority of the President to respond to the challenge to the action from French naval forces?
If congress says it; then that’s it. Its shared war powers.
What are the two primary lessons from the Steel Seizure case?
1) P has an inherent/aggregate/residual power in cases of emergency (invasion, attack, need4speed in war zones etc)
2) gloss of history (congressional acquiescence)
What is the President’s “inherent war authority”?
Inherent authority to repel attacks (conduct defensive war) w/o prior congressional approval
Related to the President’s inherent defensive war power is the rescue power; what principle does the In re Neagle case stand for today?
inherent authority to rescue Americans abroad
Why did the ship owner in Bas v Tingy argue that it was invalid for Congress to label France as an enemy?
Ship owner argues it was invalid for Congress to label France as enemy b/c then he’d have to pay more to get it back. (statute says entitled to 1/8 if recaptured from french; 1/2 from “enemy”)
What are the two categories of war the Sp Ct indicated (in Bas v Tingey) Congress is empowered to authorize?
1) Perfect - declared, whole nation authorized to commit hostilities against another whole nation
2) Imperfect/limited - hostilities between 2 nations, more confined in its nature + extent; limited as to place, persons, things.
Why did the Ct indicate Congress can legitimately choose to opt for less than a declaration of war?
“Declare war” power incl power to authorize (+ restrict) limited (“imperfect”) war
When authorizing hostilities, what can Congress limit?
Can limit objectives, location, and duration.
What is the President’s current domestic authority to use armed force against ISIS, and can Congress limit how such force is employed?
2001 (9/11) AUMF
In addition to AUMFs, what is a common manner in which Congress regulates on-going hostilities?
Authorizations, Appropriations
What is the difference between congressional authorizations and appropriations, and what is the desirability of using the latter to attach restrictions?
- Auth - statutes delegating authority to exec branch (gives power)
- Aprop - statutes that fund the execution of delegated authority. Limitation + purpose are SPECIFIC, direct, + unambiguous (vs legislative language can be vague/bent). Congress can make hard for P to veto by embedding limitations in needed approp bills
Could the Pres. In 2003 have taken the country to war against Iraq solely on his inherent “repel attack” authority; if so, why the 2002 AUMF for Iraq?
Would have to argue “imminent threat” but not likely;
Why the 2002 AUMF? Benefit of funding by Congress and an ability to cite it as a source of authority to do more that wouldn’t be considered defensive
What is the President’s “customary war power”? What makes a practice customary? When is this power invoked?
- Not specific things but just those done consistently with congressional acquiescence
- invoked when there’s no other power for him to point to
When, per the Sp Ct in the Prize Cases, can the President act using war powers without Congressional authority?
P has the inherent constitutional authority to repel attacks (and conduct defensive war) w/o prior congressional approval
What is the stated purpose of the War Powers Resolution?
Insure COLLECTIVE JUDGEMENT of Congress and the President will apply to the intro of US armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by circumstances, and to the continued use of such forces in hostilities or in such situations
What is the source of constitutional authority that provides the asserted basis for the WPR?
Article 1, Section 8 – “Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution…”
What triggers the WPR?
introduction of US armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by circumstances
Who decides if and when it is triggered?
the President by “introducing troops into hostilities”
What does the WPR establish as the three exclusive sources of legal authority for the President to commit the military?
1) Declaration of war
2) Specific statutory authorization; or
3) A national emergency created by attack upon the US, its territories or possessions, or its armed forces.
What are the two primary requirements of the WPR?
1) consulting - every possible instance b4 intro + after every such intro consult regularly until armed forces removed
2) reporting
What is the 60-day clock and its consequences?
w/in 60 days after a report is submitted or req’d to be (whichever earlier) P shall TERMINATE any use of armed forces UNLESS congress:
1) declared war or enacted specific authorization for such use
2) has extended by law such 60 day period
3) phys unable to meet bc of armed attack on U.S.
How does it allow Congress to end hostilities without incurring Presidential veto?
any time that US Armed Forces are engaged in hostilities outside the territory of the US w/o a declaration of war or specific statutory authorization, such forces shall be removed by the President if Congress so directs by CONCURRENT RESOLUTION
Specifically, what makes something a judicial vs a political question?
Judicially discoverable and manageable standards
Per the COA, what does the “war-declaring power of Congress” require?
“The war declaring power of Congress…contains a discoverable standard calling for some mutual participation by Congress”
WPR reporting requirement
w/in 48 hrs to Speaker of House of Reps and President pro tempore of Senate, in writing:
1) circs necessitating intro
2) con + legislative auth for it
3) estimated scope/duration of hostilities or involvement
• as long as troops are involved, P must report at least every 6 months
When is an agreement between two or more states considered a treaty under international law?
1) states intend agt to be legally binding
2) deal w significant matters
3) clearly described obligations of the parties
4) takes form consistent w intent to be legally binding
Under domestic law, per what authority are treaties made?
Under Article 2 Sec 2, treaties are only those int’l agreements approved by 2/3 (super majority) vote of the senate
