Study Questions - National Security Law

Dames & Moore v. Regan, 453 US 654 (1981) - 48 (out of sequence)

What was the Iranian hostage crisis?
What did President Carter have to agree to as a condition of the hostages being released?
What specific power does the International Emergency Economic Powers Act give the president that was used as part of the resolution of these claims.
What did Carter do that the court found was not specifically authorized by any statute?
What legal authority did Congress give the president to resolve claims against foreign governments?
Did Congress review President Carter's actions?
Did Congress take any action to counter the President's actions?
Why does the court say this inaction is acquiescence?
How are claims against the states and federal government handled?
Is there any international law right to private claims against states?

Keeping Secrets - Classified information

Is there a constitutional right to public access for governmental information?
What does this tell us about the legal basis for the president to withhold information from the public?
What about from Congress?
What if some congressional district in California elects a communist?
What about sharing information with state and local government officials?
Would you trust the governor?
What is the statutory basis for public access to governmental information?
What does it provide for information about national security?
Does the government even have to tell the court whether it has the documents that are sought in a request for information?

Nixon v. US

Access to secret tapes of the oval office
What if the president had destroyed them before anyone had asked for them?
Why can't he do it after the grand jury subpoena?
Nixon said he would not turn them over because of executive privilege
What are traditional FOIA reasons for executive privilege?
These would not be binding on Congress under FOIA, since it created FOIA
What would limit congress?
Where does separation of powers come in?
Did Cox find clear evidence for a historical presidential privilege?
Did they make Nixon surrender the tapes?
Did they find things that might have justified withholding the tapes?
Would it have mattered if this had been a congressional subpoena, rather than a grand jury subpoena?

Chapter 5 - Congressional National Security Powers

How was the country different in 1800 from today as regards the relative power of congress versus the president to wage war?
What resources did the president have available then and now?
How does this affect the basic shift of powers?
Would the Iraq war have played out differently if congress had to appropriate money to raise an army, then declare war.

Declaration of War - 93

Procedurally, how does congress declare war?
Is the presentment clause involved?
Can the president veto a declaration of war?
What if the president disagrees - can he refuse to fight the war?

Bas v. Ting, 4 US 37 (1800)

What are the facts?
What did the lower court award Captain Tingy?
What is a privateer?
What did the 1799 require ship owners to pay if a ship was recaptured?
Was there a declaration of war with France?
What is a solemn or perfect war?
Did this exist with France?
Did it exist with any war since WWII?
Were we at peace with France?
What war-like actions did we take?
What is an imperfect war?
How do you know you are in an imperfect war?
Does an imperfect war create a legal enemy?
Does this trigger the 1799 act?
What were the four actions did Congress authorize that Justice Chase saw as evidence that a state of war existed?
How did Justice Paterson say an imperfect war differs from a perfect war?
Does the Captain get to keep his 1/2?
What does this add to our knowledge of the Little case?

Notes

Do the president's powers differ in declared and undeclared wars?
Does the president have to wait until Congress recognizes that we are in an imperfect war?
Does the declaration of war mean anything beyond triggering statutes?
Is it judicial in nature, meaning that it does not affect the president's right to conduct war?
How does Congress control war making, if not through declaring war?
Why is this alternative control ineffective?
What would it have meant in the Iraq war?
Did Congress declare war on al Quada?
What did they do?
Could congress declare a war on an enterprise, rather than a country?

Brown v. US, 12 US 110 (1814)

Did the declaration of war allow the president to seize British property held in the US (trees)?
What if the forest was seized as a strategic objective during a battle?

Is the declaration of war obsolete?
Was Viet Nam the enemy in the Viet Nam war?
Is Iraq the enemy in the Iraq war?
Where does the court look to find congressional authorization for an undeclared war? (Orlando v. Laird (1971).
What is congress authorizing money for?
What about joint resolutions and sense of the house or senate motions?
What is evidence that a declaration of war was already obsolete in 1789?
How did Congress express its decision to make war on France at the end of the 18th century?
How broad was the resulting authority in the President as Commander in Chief?
Could the President have deployed land forces to invade France or French possessions?
Could he have deployed the Navy to take the war to French ports?
What answers are suggested by Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804)
What is the legal domino effects of war?
What is the Judicial Theory of Congressional declarations of war?
Could Congress declare a limited war, i.e., a declaration of war that specifically limits the president's actions?
How does the war on terror differ from previous declarations of war?
Could Congress really declare war on a non-state?
Should such a declaration trigger the usual war measures, including international law issues?
What is the vagueness problem for foreign countries and their citizens?

Jan 23

Lichter v. US, 334 US 742 (1848) - 102

What was the purpose of the Renegotiation Act

What is the selective service?

Got your draft card?

What clause authorized it

How is the Renegotiation act like the selective service act?

What advantages do the merchants have over the draftees?

What was the delegation theory attack on the law?

What is the takings argument on excess profits?

How is the modified by the "raise armies" and "take care clauses"?

What did Justice Hughes tell us in his address, ‘‘War Powers Under The Constitution, about construing the Constitution in the face of conflicts?

Is the argument different for state laws, where there is no US Constitutional provisions that modify the takings clause?

What about modern gouging laws?

How did the court rule?

Greene v. McElroy 360 US 474 (1959) - 105

What are the new property cases?

Is this a new property case?

What happened to Plaintiff?

What is the long term effect?

What is the due process problem?

Is this a delegation case? What analysis would we use?

What step does case this fail and why?

Why does congressional ratification based on funding the procurements fail?

What is the court dodging?

How has the delegation doctrine been revised by the United States Supreme Court post Chevron?

What is the test now for a proper delegation?

What about delegating the power to declare war?

What about the power to ratify treaties?

Notes

How do you argue that an appropriation bill is also an authorization bill for specific executive powers?

Why does the modern budget process undermine this assumption?

What do you look to in the appropriations bill to support an authorization argument?

Impoundment - what if the president disagrees with an action of congress and just refuses to spend the money?

What has the United States Supreme Court said about impoundments?

Line Item veto - Note 4 - 131

What is a line item veto?

Why would congress give this to the president?

What is the problem with using impoundment as a line item veto?

What is the constitutional problem with a line item veto?

Why did the founder's not think about a line item veto - how was the budget process different?

Would the argument be different for national security bills?

Does Congress have a way to give the president flexibility?

What about the budgets for the CIA and NSA?

What does Spaulding v. Douglas Aircraft tell us about the power of congress to put strings on appropriations?

Given Chevron, why are limits on appropriations more effective than direct legislation on agency authority?

What is the procedural advantage?

Proclamation No. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks 66 Fed. Reg. 48,199 (Sept. 14, 2001)

What is the legal purpose of this declaration?

Notes

What was the Feed and Forage Act of 1861 intended to authorize?

How did Nixon use the Feed and Forage Act of 1861?

When was the national emergency he relied on for contingent authority declared?

What does the National Emergencies Act require?

What does a formal declaration allow Congress to do?

Remember the International Emergency Economic Power Act (IEEPA) from the Iran hostages case?

How are requirements like the National Emergencies Act?

There are hundreds of emergency statutes that broaden the president's powers.

Are all of these laws a good idea?

What about state emergency powers laws?

What is the standard for declaring a national emergency?

How can this be a problem?

What about at the state level?

Who declares a state emergency?

Does this make you confident?

Why do governors like to declare emergencies?

Takings in emergencies - note 5 - 118

What about regulatory takings, i.e., when someone cannot get paid or complete a business deal because of changes in policy in dealing with a foreign country?

Is this the same as if the government actually took the property for direct use?

Would Truman have had to pay for the costs related to the steel seizure if it had been successful?

Investigatory Powers - 118

McGrain v Daugherty, 273 US 135 (1927) - 118

Does the constitution specifically give Congress the power to investigate and force witnesses to testify?

Has congress done this for a long time?

Why does it matter that it has been going on since the beginning?

What is the enforcement problem?

Why is this a special problem with executive branch witnesses?

Notes

What is a resolution of inquiry?

Who are they directed at?

What is the compliance problem?

Why did the appeals court dodge the American Telephone & Telegraph case?

What sort of question do these cases pose?

How is this different from Nixon v. US?

Sharing information with Congress

What if some congressional district in California elects a communist?

What about sharing information with state and local government officials?

Would you trust the governor?

More later

LIMITATIONS ON CONGRESSIONAL WAR POWERS - 124

Lovett v. US, 328 US 303 (1946) - 124

What did congress use a rider in the spending bill to do?

What due process does this deny them?

What is the constitutional limitation on this sort of law?

What is the general principle?

Can you use appropriations to accomplish things that Congress does not have the power to do directly?

What are examples?

What about the federal ban on paying for abortions?

How is abortion different from the rights of a government employee?

Is congress prohibited from using appropriations to interfere with foreign policy?

What is the problem in enforcing this?

What if congress just shuts down the state department?

Why do the use of omnibus bills make it difficult to fight about specific appropriations riders?

If congress is prohibited from using appropriations to mess with foreign policy, does it follow that the president may divert money from other appropriations to accomplish foreign policy purposes?

Remember Chahda?

Should there be a national security exception to Chahda?

Why should the court be more flexible on national security?

What if the president wants to use our first strike capabilities to slow down competition from China?

25 Jan - Chapter 6

Dellums v. Bush, 752 F. Supp. 1141 (1990)

What war?

What precipitated the US actions?

Why do we care about Kuwait?

What about Saudi Arabia?

Is Saudi Arabia our ally?

Do they like us to have troops in their country?

Why?

Are they a moderate Muslin country that seeks to calm Islamic extremist groups?

What had the president done at the time this suit was brought?

Just as a comparison with today, how many troops were on the ground in Saudi Arabia?

What was the president and Cheney's stated intent at the time the suit was filed?

What role did Cheney have then?

What role does he have now?

Any other familiar faces in the Bush I White House?

Who is bringing this action?

What does the plaintiff want to get?

What do they want the president to do before acting?

Do you think all members of congress support this action?

What congressional power do they claim the president is invading?

What is the president's broad political question defense?

What did Baker v. Carr tell us about political questions?

Why doesn't the court buy this?

What about the claim that the court cannot decide if there is a war going on?

What war was Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973) litigating?

How did the court characterize the question of whether there was a war going on?

What makes a war under the Mitchell standard?

What did Mitchell say was the remedy if the Vietnam was an illegal war?

Standing

How are the plaintiff's claiming they are injured?

What does Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973) tell us about standing?

Remedial

Has Congress passed a law or resolution barring the incursion into Iraq?

What controls does Congress have?

Why cannot plaintiff's get Congress to use these powers?

Do you think the judge is right that they should be able to go forward just because they cannot get Congress to use its remedial powers?

Is the president hiding the troop buildup from them?

Has the president adjourned Congress to prevent the vote?

Ripeness

What could congress do to moot this?

What could the president do?

How does this affect ripeness?

What would be the impact of the injunction if issued at this point?

End result?

Ange v. Bush, 752 F Supp 509 (1990)

What was plaintiff's claim in this case?

The War Powers Resolution

War Powers Resolution was passed after Viet Nam to try to blame the war on the president

Basically it bans illegal wars

It is enough for standing because plaintiff is a party contemplated by the law

Much more about it in later cases

Plaintiff also claims a due process violation because the military did not review his disability claims properly

Guaranteed loser - administrative system

You do not lose all rights, but you are to the military system

What does plaintiff want?

What would be the effect on this on the military?

Why does plaintiff have the same standing problems as Congress?

What does it take to make an illegal war that triggers the War Powers Resolution?

What will have to happen for plaintiff to prevail?

30 Jan

Gilligan v. Morgan, 413 U.S. 1, 6 (1973)

The Kent State Shootings

Who shot whom?

Who did the shooters work for?

What did the lawsuit seek?

What was the separation of powers issue for the court?

Which branch did the court think should be investigating the Guard?

What provision of the constitution did the court base its ruling on?

What outcome was the court avoiding, i.e., what problem with the court have if it turned out that the troopers had been properly ordered to shoot the students?

What about criminal prosecutions under state law?

What would the state have to show for a successful prosecution of the individials?

What would be necessary to beat a "following orders" defense?

Quick review of standing - Northeastern Florida Chapter, General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663-664 (1993)

What are the three elements?

What is the zone of interest?

What can congress modify by statute?

What factors cannot be modified?

Are these the same in the state courts?

Why can’t Congress force the court to resolve political question cases?

Can Congress take away the court's jurisdiction over national security cases?

Are there constitutional limits on this?

What are the political limits?

What recent law removed possible jurisdiction?

Citizen Standing

Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y. 1991)

What was plaintiff's claimed injury in fact?

What did the court say about this?

Why not accept this?

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974),

What was plaintiff challanging?

What constitutional provision does this violate?

What is the separation of powers problem?

Putting aside the court's ruling, do the plaintiffs have a valid constitutional argument?

What was the problem with their standing?

Does it matter that the action may be illegal but there is no one with standing to contest it?

Could congress allow standing for this case?

Why is that unlikely?

What could congress do if it wanted to fix this?

Flast v. Cohen, 392 U.S. 83 (1968)

What was the action being challanged?

Why does it matter which constitutional provision is being violated?

What is the two part test?

How often does the court allow tax payer standing?

Do you think a tax payer can assert that a war is illegal?

Can a tax payer get standing if he complians that he does not want his tax money spent on an illegal war?

Congressional standing once more

Raines v. Bird, 521 U.S. 811, 829 (1997)

What did the plaintiffs want the court to rule?

What was their standing problem?

If congress really though this was unconstitutional, what could it do?

What did the court eventually rule about the line item veto?

Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff’d, 203 F.3d 19 (D.C. Cir. 2000)

What were the congressmen arguing?

What does it mean to say that "there were congressional votes defeating a declaration of war (427-2), defeating an authorization of the air strikes (213-213), defeating a resolution ordering an immediate end to U.S. participation in the NATO operation (290-139)

What is the legal status of a bill that does not pass?

What did Congress vote for?

Why does one appropriations bill trump a thousand failed bills?

Would it even trump a successful join resolution telling the president to get out of Yugoslavia?

What can congress do if it does not like a war the president is in?

What can congress do it the president orders in troops in violation of provisions of the appropriations bill supporting the troops?

When does Tribe think congressman should have standing?

Why does Scalia think that congressmen should never have standing in their offical capacity?

Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)

Who were the plaintiffs?

Why did they say that it was illegal Bush II to invade Iraq?

What is wrong with the claim that congress colluded with the president?

Why did the court find that the case was not ripe?

Do you think the court would have reached a different result if they had waited a few days and the war had started?

In general, why is the role of the courts so limited as regards illegal wars and fights in congress over war powers?

1 Feb

Chapter 7 - The Domestic Effect of International Law

Traditional treaties

What are the four factors that determine whether an agreement is a treaty under international law?

What is the international law significance of a treaty?

What happens if a country does not honor a treaty?

Is there an international law enforcement system?

How are their approved by Senate?

What does ratification mean?

What does advice and consent mean?

Was the senate meant to participate?

What is the downside to senate participation?

How do you negotiate with 100 voices?

What about secrecy?

What if the senate will not ratify without changes?

Does this undermine the president's constitutional right to negotiate treaties?

Fast track - the Senate promises to not mess with the treaty, only to vote it up or down.

What does a treaty mean?

What does the president want to use to justify reinterpreting the ABM treaty?

What is Biden's complaint?

How is amending a treaty different from terminating it?

Relevance of Senate Ratification History to Treaty Interpretation (April 9, 1987) - 159

What is Biden addressing in this report?

How to treat the Senate deliberations on a treaty

If these deliberations are considered a binding part of the treaty, what could the Senate do to make them binding?

Whose represenations should count in construting a treaty?

What are the president's dual roles in treaties?

What is president's role more important in international law?

What type of legal document does this report say a treaty is?

What is the primary responsibility of the executive or the courts in construing the treaty?

What is the best evidence of the meaning of the treaty?

What can the senators do if they believe that a provision in the treaty is ambiguous?

What does this report say should happen if the president wants to use secret side deals to change the meaning of the treaty?

Abrogating Treaties - Goldwater v. Carter, 617 F.2d 697 (1979)

Only dicta, vacated by United States Supreme Court as non-justiciable

Does the Constitution provide for abrogating treaties?

Symmetry - if the senate has to approve a treaty, does this mean they have to approve its abrogation?

What are other things the senate has to approve?

Do they have to approve firing them?

What does the Supremacy clause mean?

What are the limits on treaties - what happens if conditions change, say an ally goes communist?

Who evaluates these changes?

What would be the problem if he had to go the senate to get the treaty modified?

Who has final authority to send in troops when there is a mutual defense treaty?

When do modifications amount to abrogating the treaty?

What about the termination clause in this treaty?

Who gets to make that decision?

Does the treaty say who makes it for the US?

What is the dissent's argument that once a treaty becomes the law of the land, it can only be changed like other laws?

Does this mean that congress has to pass a law that the president signs?

Treaties that require congressional action

Many treaties are really agreements that congress pass laws to accomplish a certain goal.

Abrogating the treaty does not repeal these laws

What do you have to do to abrogate the effect of these treaties?

Executive and Other Agreements

Until I started looking at this a few years ago, I assumed, as most conlaw students do, that treaties are the only binding agreements with foreign governments.

Turns out that we sign very few treaties anyone, preferring to do everything with executive agreements

Types of Executive agreements

Congressional-executive agreements

Congress either approves them or delegates approval to the president

Agreements made pursuant to treaty

Probably implicitly authorized by the treaty

Pure executive agreements, such as the Iran hostage settlement

Made in USA Foundation v. US, 242 F3d 1300 (2000) - 172

This is a fight over what can be the subject of a treaty versus an executive agreement

Does the constitution give any guidance?

Was the court able to find any bright line?

Notes

6 -172 - Case-Zablocki Act: Congressional limits on agreements

What does the Case-Zablocki Act require?

What if the president does not comply?

Does that make the agreements void?

Has congress successfully limited the president's ability to make secret deals?

Review of congressional limits

Does making an agreement give the president the power to carry it out if congress disagrees?

What can he do without congressional support?

Do Treaties supersede the Constitution? - Reid v. Covert, 354 US 1 (1957)

What are the facts?

Where did the crimes take place?

Why are they being tried by military courts?

Is the defendant active duty military?

What constitutional provision do the defendants say was violated?

What does the treaty provide?

May treaties override the constitution?

What did the court say about a subsequent statute overriding a treaty?

Must the statute obey the constitution?

What did the court decide about trying these women in military courts?

Why can soldiers be tried in military courts?

Can private litigants sue in US courts to enforce treaty rights? - Committee of US Citizens living in Nicaragua v. Reagan, 859 F2d 929 (1988)

What did the International Court of Justice find?

What did the US do to avoid this judgment?

What are the plaintiffs seeking?

The first issue is whether Congress may override a treaty by statute

What does this tell us about Congress' ability to control executive agreements?

Why is it hard to do?

Since this is a subsequent statute, it overrides - what about its violation of international law?

What does the Head Money Cases, 112 U.S. 580 (1884), tell us about the role of the courts in enforcing foreign treaty obligations?

What do treaties depend on for enforcement?

Does international law count?

How do we tell if a treaty is self-executing, i.e., if individuals can enforce it without additional statutes?

Who can be a party in the International court of Justice?

Does this create individual standing?

What is a self-executing treaty?

What are limits on self-executing treaties?

What did United States v. Pink, 315 U.S. 203, 230 (1942) tell us about the legal status of international compacts and agreements?

The legal status of sole executive agreements is less clear.

The domestic legal effect of customary international law and jus cogens

What is jus cogens?

Does the court accept that there are instances of jus cogens?

What are examples?

What do you have to establish to show that an international norm has become jus cogens?

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)

What are the facts?

Does he have a claim under the FTCA?

Would if this happened in the US?

What claim would you use in the US?

What is the Constitutional basis for the Alien Tort Statute?

What was the congressional intent in passing the Alien Tort Statute (ATS)

Given this narrow intent, what is the court looking for to support Sosa's claim?

Is there indication of whether congress wants the court to allow torts claims to enforce international human rights law?

What does Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981) tell us about whether the court can enforce international law?

What does Scalia think of this in the concurrence?

Does the Court find a jus cogens principle to support Sosa's claim?

What if he had been tortured?

How does Scalia describe the history of the ATS?

How well defined in customary international law?

Is there are generally agreed to codification?

What is the chief argument for executive power to override customary international law?

Who overrode customary international law in Ferrer- Mazorra v. Meese, 479 U.S. 889 (1986)?

Did the court indicate that any executive branch official could do this?

Can Congress ban the United States Supreme Court from considering international law as a precedent in US law cases?

Bottom line - while the president has a lot of latitude, congress can trump everything if they can get past a veto or hold the president hostage with a bill he needs.

Feb 6

Chapter 8 - General War

Intro to Vietnam

Is the Tokin Gulf Resolution a declaration of war?

Is it anything at all, legally?

If not, what does that tell us about presidential power?

What did McNamara say about the war?

What was the Tet Offensive?

What does the authorization of force after 9/11 provide?

How does it differ from the Tonkin Gulf Resolution?

Orlando v. Laird United States Court of Appeals, 443 F.2d 1039, cert. denied, 404 U.S. 869 (1971)

Who are plaintiffs?

What is their claim?

Why do they have standing when other citizens do not?

What does the court point to as evidence that Congress did authorize the war?

What is the ‘‘mutual participation’’ standard for prosecution of the war?

What is plaintiff's theory on why Congress was not free to reject the war?

Why is resolving this a political question?

What is the political question theory in Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971)?

What is Reveley’s test

What were the Pentagon Papers?

What was their political significance?

Laos and Cambodia - what does "mutual participation" mean for secret operations in the war?

Does it matter that the war has expanded beyond the original aggressor state?

Would it matter more if there was a declaration of war?

Who should the president justify such incursions?

What did it mean to repeal the Gulf of Tonkin Resolution?

Did Congress stop other support for the war?

What is a signing statement?

What did Nixon say in the signing statement to the bill that included the Mansfield amendment, which urged him to end the war?

What did Nixon do when presented with a bill cutting off funding for Cambodia and Laos?

Based on this, what do the plaintiffs argue in Holtzman v. Schlesinger, 484 F.2d 1307 (1973)?

Did the court accept this?

What did Nixon agree to in a bill passed by Congress?

How did the war finally end?