JURIST Guest Columnists Lawrence Friedman and Victor Hansen, professors of national security law at New England Law, Boston, explain the traditional grant of national security powers to the federal government and suggest that non-military threats, like COVID-19, show us why that must change...
Students in our National Security Law course quickly learn that this area of the law is governed primarily by abstract constitutional rules, specific statutory grants of authority, and relatively little useful caselaw. Indeed, perhaps in no other area of the law has the Supreme Court deferred so explicitly to the perceived advantages and competence of the political branches, particularly the executive. In this way, the Supreme Court has diminished the role of the judiciary in national security decision-making.
The modern understanding of the constitutional structure, moreover, also mandates a diminished role for the states. The court in numerous cases has concluded that the framers, by delegating to Congress and the President the primary authority for national security matters, sought to locate security decision-making in the federal government. This position finds support, for example, in the allocations of power to Congress to raise and support armies and declare war; and to the President to lead the armed forces and control foreign intelligence gathering and analysis.
The framework makes sense given the kinds of threats the framers likely contemplated in 1787: physical invasion and the deleterious consequences of foreign machinations—that is, external threats. As for the many and varied domestic hazards to the safety and tranquility of the citizenry, the framers looked to the state governments and their expansive police powers. Policy approaches might differ from state to state, just as the nature of the dangers might differ, but success would breed success across the “laboratories of democracy,” as Supreme Court Justice Louis Brandeis famously put it.
This model of national security decision-making privileges an understanding of “national security” that fails to capture the nature of threats that do not involve, say, military or clandestine action, or at least not primarily. Indeed, as the battle against the novel coronavirus pandemic demonstrates, the model fails to account sufficiently for the potential devastation that can be wrought by phenomena like disease, the potential consequences of which may be graver than the worst terrorist attack the nation has suffered, and with a greater potential to destabilize the nation in a variety of ways.
To this end, Oona Hathaway has argued that, in light of COVID-19, “[i]t is past time to rethink what national security should mean.” She suggests that we should “broaden the lens of national security to think about all serious global threats to human life,” including “pandemics, other public health threats, and climate change.”
Hathaway is right: non-military, non-terrorist threats have profound implications for national security. But it is also true that, in our globally interconnected world, there are potentially numerous incidents and phenomena that could in some way affect the health or well-being of a large swath of the citizenry. Because we may not be able rationally to draw lines between the concerns that the federal government should address and those that should fall to the states, perhaps we should pursue instead a framework that appropriately leverages the resources and capabilities of both the federal and state governments.
Faced with a pandemic, for example, federal policymakers could promote cooperative federalism and incentivize state governments to act in concert where such action would create economies of scale or more thoroughly thwart the spread of disease. In respect to the battle against COVID-19, we have seen both halting federal-state cooperation and nascent regional partnerships among states. Of course, the possibility that the country might, in a time of crisis, be led by a president who is not capable of addressing the emergency’s enormity should provide more reason to consider a national security framework that envisions an active role for state governments.
In the current situation, it makes little sense to assume that the federal government alone could be maximally effective in protecting Americans. Though the framers might have worried that states could undermine appropriate responses to an invasion by foreign troops, nothing in the constitution necessarily precludes the federal government from supporting joint state efforts to fight a pandemic, such as regional agreements as to when and how social distancing restrictions should be lifted.
A national security policymaking framework that does not privilege the federal government will raise many questions, not least the extent to which state governments can or should benefit from the deference the courts have shown the federal government in such matters. Though these questions require exploration, reconsideration of the traditional allocation of national security decision-making responsibility need not wait until we have all the answers. After all, this pandemic did not wait—and the next non-military, non-terrorist threat will not wait, either.
The death toll caused by COVID-19 has long surpassed the losses the nation suffered on September 11. Yet the pandemic shares some essential qualities with the terrorist attacks of that day, for like those attacks it has not only touched all of us, in one way or another; it promises to change the way we live. In response, it is time for us to view national security threats and the responses to those threats in a more expansive and flexible manner that more completely incorporates the notions of federalism established by our Founders.
For more on COVID-19, see our special coverage.
Lawrence Friedman and Victor Hansen teach national security law at New England Law | Boston and are the authors of The Case for Congress: Separation of Powers and the War on Terror.
Suggested Citation: Lawrence Friedman and Victor Hansen, Toward a New National Security Framework, JURIST – Academic Commentary, May 2, 2020, https://www.jurist.org/commentary/2020/05/friedman-hansen-national-security-framework/.
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