Search

This article is a rebuttal to Professor Eugene Fidell's article, (1) which calls for the termination of the United States Court of Appeals for the Armed Forces (the CAAF) (2) [...]

INTRODUCTION 2054 I. SCOPING THE PRESIDENT'S CONSTITUTIONAL DELEGATIONS AND 2058 STATUTORY SUBDELEGATIONS A. Delegating Constitutional Powers 2059 B. Subdelegating Statutory Powers 2061 II. THE COSTS OF NATIONAL SECURITY DELEGATIONS AND [...], The President sometimes delegates important constitutional and statutory powers to use force or conduct other national security operations. Although these delegations are understudied, there may be reason for concern. Sometimes the President's national security subdelegations have been unfaithful to Congress's strictures. Sometimes the delegations are high stakes, as where President Eisenhower delegated to seven military officials the authority to launch nuclear weapons. Presidents sometimes even resist seemingly reasonable statutory limits on the power to delegate decisions that could lead the United States into armed conflict. National security delegations can be costly. They may diffuse political accountability for high-stakes decisions. The agent may fail to act in a way that reflects the principal's intent. Inferior officials are generally less sensitive to the full scope of foreign policy concerns that may operate at a given moment. And delegations of war-related decisions to actors below the Secretary of Defense shift control of war from civilian officials to military ones. Classified national security delegations-and congressional efforts to regulate those delegations-raise difficult legal questions, including the extent to which Congress may restrict or require reporting about them. Yet the pressure on the President to delegate authorities to respond to "hyperwar," and the coming autonomy revolution in which the President may delegate decisionmaking to artificial intelligence systems, will keep delegation questions at the fore. This Article analyzes the legal doctrine and historical practice surrounding presidential national security delegations, the costs and benefits of such delegations, and Congress's powers to constrain delegations and subdelegations. After identifying gaps in congressional and even presidential awareness of the full range of existing delegations, it proposes ways in which Congress and the President herself can more consistently surface and structure those delegations.

I. INTRODUCTION In October 2021, LinkedIn announced that it had to exit the Chinese market because it had faced "a significantly more challenging operating environment and greater compliance requirements." (1) [...]

TABLE OF CONTENTS INTRODUCTION I. THE RISE OF ECONOMIC WARFARE AS A NATIONAL SECURITY STRATEGY II. ECONOMIC WARFARE AS A MAJOR QUESTION A. The Major Questions Doctrine B. Why Economic [...], The rise of the major questions doctrine--the rule that says that in order to delegate to the executive branch the power to resolve a "question of 'deep economic and political significance' that is central to [a] statutory scheme," Congress must do so expressly--threatens to unmake the modern executive's authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms. In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national-security-related conflicts--wars of territorial conquest, terrorism, or nuclear proliferation--increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, "foreign affairs exceptionalism," in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is "foreign" and "domestic" cannot be easily distinguished and attempts to do so will have perverse consequences. The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between "foreign" and "domestic," with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges--particularly lower court judges--will be put in the position of second-guessing executive branch decisionmaking on precisely those questions--economic foreign policy questions of deep economic and political significance--on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system.

I INTRODUCTION Where there is no publicity there is no justice. (1) Open justice is a significant, and longstanding, (2) judicial principle. It is considered a hallmark of the judicial [...], Open justice is an essential feature of the judiciary, in Australia and elsewhere. The principle has constitutional salience, as an element of judicial power in Chapter III of the Constitution. Yet, open justice is not absolute. In recent years, the tension between open justice and national security has been a matter of public controversy in Australia, as a result of the Bernard Collaery, Witness K and Witness J prosecutions, which have all been shrouded in secrecy. Reconciling open justice with the confidentiality required to protect national security is a common challenge for many jurisdictions. This article compares the Australian approach with the United Kingdom and Canada. It argues that Australian law and practice in relation to protecting open justice in the national security context is underdeveloped. Drawing on the British and Canadian experience, the article proposes methods to better balance these competing interests in Australia, in a manner which would reflect emerging constitutional principles.