Document Type

Article

Publication Date

2024

Status

Forthcoming

Abstract

The presidency of Donald Trump revealed weaknesses in the U.S. constitutional structure and its legal rules, weaknesses that had been covered over for most of our history because presidents of all political parties voluntarily obeyed norms of behavior that kept the presidency within the bounds of constitutional democratic governance. Unfortunately, there is no guarantee that such norms have been permanently restored. Thus, scholars, policymakers, and judges must consider now how to protect the rule of law from a rogue president, rather than waiting for the next crisis to occur. This Article provides a comprehensive set of achievable reforms targeted specifically at the dangers of a rogue president in the national security arena. Because national security tends to implicate the president’s commander-in-chief power, it has historically been an area where presidential power is thought to be at its zenith. As a result, Congress’ power is thought to be circumscribed, and courts tend to be deferential. This historical deference makes the dangers of a rogue president even more acute with regard to national security-related powers than in other areas.

Nevertheless, the president’s power over national security matters is not unlimited. Indeed, the U.S. Supreme Court made clear in its landmark decision in Youngstown Sheet & Tube v. Sawyer that presidential power domestically, even in times of military conflict abroad, remains subject to important constitutional constraints. And Justice Jackson’s influential concurrence in that case invoked the specter of an authoritarian president as a principal reason for insisting on those constraints. Thus, we need to embrace a Youngstown-inspired approach to presidential power in the national security arena, and there are steps that could be taken by all three branches of government that would help instill these values and embed rule-of-law norms to at least make it more difficult for a rogue president to tear them down. This Article focuses on five such steps: (1) limit the president’s power to use the military domestically under the Insurrection Act ; (2) better define and limit the president’s emergency powers; (3) set outer bounds to the pardon power with regard to war crimes; (4) empower inspectors general throughout government (and particularly in the national security agencies) and better protect those inspectors general from politically-motivated firing by a rogue president; and (5) encourage courts to take a more skeptical approach to evaluating executive branch invocation of the so-called state secrets doctrine to protect governmental actions from disclosure and scrutiny. For each step, I set forth tangible actions that could be taken by various branches of government, describe some of the existing legal rules that must be overcome in order to implement those reforms, and outline potential constitutional arguments that might arise.

Of course, a rogue president with authoritarian impulses could lay waste to any and all guardrails that are created. Nonetheless, the more constraints that are erected, the more difficult the task of authoritarian overreach becomes, and the more likely that actors within the government will be empowered to resist. Therefore, although the multiple reforms described in this Article are certainly not a panacea, they are important and achievable steps that will at least help to preserve rule-of-law values in the national security domain.

GW Paper Series

2024-41

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