Publication Date
Summer 2024
First Page
2053
Document Type
Article
Abstract
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.
Repository Citation
Ashley
Deeks
(Sub)Delegating National Security Powers,
172
U. Pa. L. Rev.
2053
(2024).
Available at:
https://scholarship.law.upenn.edu/penn_law_review/vol172/iss7/8