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08/26/2017

Dakota Rudesill: The Land and Naval Forces Clause
Michael Ramsey

Dakota S. Rudesill (Ohio State University - Michael E. Moritz College of Law) has posted The Land and Naval Forces Clause (University of Cincinnati Law Review, Vol. 86, 2017) on SSRN. Here is the abstract:

What is the best constitutional textual basis for key statutes that constrain the national security apparatus and the President’s control over it – statutes that are not spending limitations, nor force authorizations, nor militia laws? There are a series of such statutory frameworks, including the Uniform Code of Military Justice (UCMJ), Posse Comitatus Act and its relatives (particularly parts of the Insurrection Act), Foreign Intelligence Surveillance Act (FISA), the covert action statute, anti-torture laws, and the War Powers Resolution. The best textual footing for these statutes, this article argues, is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” Although the common assumption is that this Land and Naval Forces Clause is a single enumerated power, this article theorizes the Clause as providing Congress two powers: a well-recognized Internal Regulation power over military justice and discipline and arguably other administrative matters, and also an External Government power over operations. This article analyzes the Clause’s text, counter-authoritarian purposes, and its constitutional interpretation since the Founding Era. It argues for the Clause’s constitutional rediscovery and embrace as the primary textual hook for a series of vital statutory frameworks that govern the military and intelligence apparatus at the intersection of liberty and security, and regarding the use of force domestically and internationally. Ultimately, the Clause’s power is contingent: Congress must use it and other legal actors give life to its statutes for it to be meaningful.