How does - or should - the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? s Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. Both mechanisms aim to ensure that the national government exercises its power responsibly - with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. Its primary concern is what Professors Bradley and Goldsmith call Executive Branch unilateralism, a fear that Presidents acting on their own might make unsound decisions, engaging in too much (or too little) military action, intruding on liberties too much (or too little). Under the judicial-review mechanism, courts enforce two sets of principles: principles allocating power between the President and Congress, and principles protecting individual liberties, such as those embodied in the Fourth and Fifth Amendments. Its primary concern is that the government as a whole will act improvidently. To avoid unilateral executive (or congressional) action, the judicial-review mechanism makes the concerns that underlie the separation-of-powers mechanism enforceable by the courts. I believe that neither the separation-of-powers nor the judicial-review mechanism of control is adequate to the task of structuring the exercise of national power under modern conditions, and that we would benefit from creative thinking about good constitutional design.
118 Harv. L. Rev. 2673-2682 (2005)
Scholarly Commons Citation
Tushnet, Mark V., "Controlling Executive Power in the War on Terrorism" (2005). Georgetown Law Faculty Publications and Other Works. Paper 554.