Articles
Protecting the U.S. National Security State from a Rogue President
By Laura A. Dickinson
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.
Chip Security: Reconciling Industrial Subsidies with WTO Rules and National Security Exception
By “Mark” Min Seong Kim
Justified as a national security law, the CHIPS and Science Act (“CHIPS Act”) channels an unprecedented $53 billion federal investment to reshore semiconductor production and reduce dependence on chips manufactured in China. This article documents the unique supply chain risks and institutional history that have led the United States to recognize the semiconductor supply chain as a matter of national security. Despite its success in incentivizing $450 billion in private investment at home, the CHIPS Act inspired retaliation from China and a $380 billion global chip subsidy war in which Members of the World Trade Organization (“WTO”) compete for technological superiority.
By utilizing the CHIPS Act as a case study, this article surveys the legal issues that would be contested if industrial subsidies that advance economic security objectives were challenged in the WTO’s judicial arm. Such subsidies would breach fundamental nondiscrimination obligations under Articles I and III of the General Agreement on Tariffs and Trade (“GATT”) and are unlikely to satisfy the narrow test for general exceptions under Article XX. For these reasons, the controversial “national security exception” under Article XXI would be the last resort for such measures to be deemed consistent with WTO law. Despite the strength and frequency of national security justifications, the CHIPS Act would not satisfy the WTO Panels’ interpretation of Article XXI that confines the use of the national security exception to respond to a war or complete severance of diplomatic, trade, and political relations. The article then both explores the policy implications of a potential Dispute Settlement Body (“DSB”) finding that the CHIPS Act or like measures contravene WTO rules, and previews China’s current WTO complaints challenging U.S. semiconductors export controls and the Inflation Reduction Act (“IRA”), a parallel industrial subsidy for electric vehicles. The CHIPS Act debate exemplifies the growing divergence between international and domestic law as the line between trade and security is blurred and countries increasingly sideline the WTO to redefine the meaning of national security on their own terms.
The Legality of Defending National Activities on the Moon
By Francesca Giannoni-Crystal
This paper explores the issue of defending national activities on the Moon—the first celestial body that will be subject to human activities. Concentrated resources, insufficient project coordination, and uncertainties in the international framework make the lunar surface a ripe arena for stakeholder conflicts. While commercial space companies may try to defend their activities with private security forces, governments will likely be called upon to protect lunar activities. This may include actions taken pursuant to the law of internationally wrongful acts; however, because of nature of space law and paucity of state practice, the legal framework for internationally wrongful acts is unlikely to resolve lunar disputes peacefully and nations may find themselves needing to resort to traditional forms of government protection—i.e., using a country’s armed forces—to defend national lunar activities. Such defense of lunar activities would be compliant with international law: the use of force in self-defense is not only allowed by the laws of armed conflicts (LOAC), including as applied vis-à-vis the Outer Space Treaty (OST), but it is also compliant with the OST itself. Furthermore, as this paper discusses, the most active spacefaring nations have also already signaled their acceptance of the legality of such defense in space. While this paper focuses on the Moon as the most urgent issue, the same conclusion applies to Mars, the asteroids, and other celestial bodies given the framework of reference (i.e., space law and the laws of war) is the same.
By Dillon Guthrie
Once dismissed for decades, the topic of unidentified anomalous phenomena (“UAP”), previously labeled as unidentified aerial phenomena and unidentified flying objects (“UFOs”), now attracts the sustained attention of Congress. In the annual U.S. defense and intelligence authorization measure enacted in each of the last four years, lawmakers have included bipartisan provisions tightening oversight of this matter. One Senate-passed UAP bill would even have directed the federal government to exercise eminent domain over any “technologies of unknown origin and biological evidence of non-human intelligence.” Relenting to this pressure, the national security establishment has grudgingly acknowledged that UAP are not the “illusions” Secretary McNamara told Congress about but real—and that they may challenge national security. So, who knew what about UAP when? Meanwhile, researchers at Harvard University, Stanford University, and elsewhere have begun to study these phenomena in earnest. This Article cannot determine whether UAP are natural occurrences, drones, secret U.S. or foreign advanced technologies, something else entirely, or some combination of these possible explanations. But legal and policy analyses have not kept pace with these developments, leaving a chasm rather than a foundation upon which legislators, other policymakers, academia, and the business community may build.
This Article begins to fill that space by studying UAP statutes and related governmental actions in five areas. First, this Article surveys congressional efforts to refine the historically laden definitions of these phenomena, shaping governmental efforts that hinge on the overarching import of these terms. Second, the activities of a novel office within the Department of Defense created to gather, analyze, and report to Congress on UAP data are evaluated, together with other U.S. governmental and international actors. Third, requirements providing for the gradual, if uncertain, declassification and public disclosure of UAP governmental records are discussed. Fourth, this Article analyzes one mechanism Congress created for persons to allege without retaliation that the government or contractors may be conducting secret UAP retrieval, research, reverse-engineering, or similar activities. Fifth, implications for contractors and others of prior statutory prohibitions against federal funding of any such unauthorized UAP activities are assessed. What emerges does not paint a full picture given the secrecy, ridicule, and conspiracism that continue to pall any serious discussion of UAP. But, by charting the strange waters of these UAP laws, this Article hopes to indicate routes of passage along which future legislation, policy, and scholarship may be ventured—if not free from hazard, then at least with a map.