As America’s 2024 presidential campaign enters its stretch run after last night’s debate, it is tempting to believe that electing one ticket or the other will solve all our problems. Have no doubt: this is a hugely consequential election, and the slate the U.S. people elect will have enormous power to shape the future of America’s foreign and national security policy. But we must not ignore that the United States’ deepest constitutional and national security challenge involves not personalities, but structure.
Consider two hypotheticals. First, upon resuming office, could Donald Trump by tweet unilaterally withdraw the United States from every treaty, agreement, and international institution to which the United States is a party? If not, what legally could stop him? Alternatively, if Kamala Harris should become president, would current law allow her unilaterally to back into a wider war in the Middle East, out of a desire to help Israel fight Hamas, Hezbollah, Iran, and Iran-backed militias in the Red Sea? If that would be illegal, what is to stop her?
In both cases, the sobering answer is: probably nothing. Our 21st century history teaches that in both cases, the president could likely do it and claim it is lawful, Congress would likely defer, and the courts would either decline to adjudicate or rubber-stamp the president’s actions on the merits. So the problem is bigger than personalities. The president currently has too much discretion to take acts that seem both unwise and illegal without legal check or consequence. The deeper question is: how have nearly 250 years of American history so distorted structural features of our national security system to transform the chief defender of our national security, the president, into today’s biggest potential national security threat?
My new book The National Security Constitution in the 21st Century explains the confluence of interactive institutional incentives that has brought us to this precarious state of affairs. The book culminates nearly five decades of studying the constitutional conduct of America’s foreign policy, from both inside and outside the government. When I first studied this topic during the Iran-Contra Affair, nearly four decades ago, I argued that a subset of constitutional norms, precedents, and framework laws best understood as “The National Security Constitution” govern the making of U.S. foreign policy. I further argued that two divergent constitutional visions have competed for dominance over our nation’s history: the Framers’ founding vision of balanced institutional participation, captured in Justice Robert Jackson’s landmark concurrence in Youngstown Sheet & Tube Co. v. Sawyer, versus the unilateralist vision of the president as “the sole organ of our Nation in foreign affairs” trumpeted by Justice George Sutherland in United States v. Curtiss Wright Export Corp. (which, when I first joined the Justice Department was called, only half-jokingly, “the Curtiss-Wright, so I’m right cite.”).
As my book chronicles, the Founders sought above all to avoid installing a new American king. But the Curtiss-Wright vision found adherents even at the Founding and has since asserted itself repeatedly over the nearly 250 years of American foreign policy; each time, the Youngstown vision has persistently clawed back. As recently as the presidencies of George H.W. Bush and Bill Clinton, the Youngstown vision continued to hold sway. But with the successive 21st century presidencies of George W. Bush (“Bush 43”), Barack Obama, Donald Trump, and Joe Biden, the Curtiss-Wright vision has taken hold with increasing ferocity. Bush 43 and Trump seized unilateral power proactively, and in Trump’s case, with naked disdain for the rule of law. Obama and Biden, saddled with weak legislative majorities, grasped unilateralism reactively. But whether proactive or reactive, the presidential grab for unilateral power has continued, with successive presidents becoming victims as much as villains in a national security process in which they bear all of the public expectations, all of the responsibility, and ultimately, all of the blame. So with each presidency this century, the constitutional pendulum has swung further and further toward executive unilateralism, climaxing in Trump’s breathtaking assertion that Article II “gives me the right to do whatever I want,” his post-defeat call for “the termination of all rules…even those found in the Constitution,” and his Supreme Court’s jaw-dropping decision in Trump v. United States apparently immunizing him for any foreign policy or national security actions so long as they can be dubbed “official.”
Many factors, both external and internal, have contributed to the rise of executive unilateralism. External factors include the end of the Cold War and the rise of a multipolar world; the growing power of nonstate actors; and pervasive threats triggered by the September 11th attacks, the Covid pandemic, and the rising threat of climate change. Internal factors include the wildly disproportionate growth of the national security bureaucracy; the collapse of the bipartisan legislative process; the decentralization of congressional foreign policy decision-making and legal advice; and the federal judiciary’s increasing proclivity to avoid adjudicating or to rubber-stamp dubious executive actions based on what Justice Sonia Sotomayor has dubbed “national security masquerades.” But indispensable actors in this process have been executive branch lawyers. (I have served as one for many years of my career, but for reasons detailed in the book, I stand by the advice I gave). Understandably, the president’s lawyers address each sequential crisis by trying to maximize the president’s ability flexibly to contain and counteract national security threats. But ironically their accumulated precedents, each written to help neutralize the particular urgent national security challenge at hand, now collectively enable the very real prospect that the president will become the greatest national security threat of all.
If this diagnosis is correct, what is to be done? If the problem is structural, the answer cannot simply be stopping Donald Trump’s re-election, although his return to power would surely push the U.S. constitutional system to the breaking point. As dangerous—and as last night’s debate showed, increasingly unhinged—as Trump is, we can easily envision even more unilateralist and dangerous presidents than Trump: populist autocrats inclined to invade foreign countries, shatter alliances, and undermine checks and balances more systematically and competently. We cannot simply rely on elections to throw the rascals out, when there will always be other rascals more adept at stealing elections and grabbing unilateral power.
Our alternatives, quite simply, are acceptance, apathy, despair, or reform: now or later. In an era of legislative deadlock and political polarization, comprehensive national security legislative reform would undeniably be difficult if not impossible to obtain. Instead, the solution must be a mosaic of reforms—some executive, some legislative, and some judicial—implemented over time, and designed individually and collectively to counteract current institutional incentives. Our goal should be to dampen the dysfunctional institutional interaction that keeps driving presidents to act or react unilaterally, Congress to do nothing, and the courts to rubber-stamp and defer. If we are serious about reform, those efforts must extend to all three branches of government.
My book suggests executive restructuring by creating mechanisms to promote better national security legal advice, law enforcement independence, to reduce conflicts of interest, restrain military adventurism, and reform the bureaucracy. It suggests that Congress reform itself by creating a Joint Committee for National Security, a Congressional Legal Adviser, and better congressional tools to restrain executive unilateralism. The courts, I argue, should reduce unnecessary barriers to justiciability (as the Supreme Court began to do by rigorizing the political question doctrine in Zivotofsky v. Clinton) and modify judicial doctrines—such as the presumption against extraterritoriality and the recent Court’s unwillingness to look to foreign law in constitutional interpretation—that are ill-suited to an age of globalization. And over time, proponents of reform must empower other counterweights to executive power, including states and localities, the media, U.S. allies, private actors, and black-letter Restatements of Foreign Relations Law. The penultimate chapter explains how meaningful reform could be achieved in various areas of national security law: warmaking, international lawmaking and agreement breaking, intelligence oversight, information control, and protection of the democratic electoral process.
I harbor no illusions that such reforms will come quickly, but beginning the process is not just necessary, but a useful goal in itself; just starting a decades-long national security reform process will likely spur further reforms. Skeptics may scoff that our current extreme polarization makes even modest reform unobtainable. But in just the last few months, both U.S. presidential candidate Vice President Kamala Harris and U.K. Prime Minister Keir Starmer made unequivocal commitments to country over party. As the 21st century unfolds, I refuse to believe that there will not come a time when we can return to a shared national commitment not to “America First,” but rather, to being “Americans First.”
Nor do I have any serious concerns that such reforms would hamstring the presidency. Serving under four presidents has taught me that in genuine emergencies, executive power always finds a way. But under our current system, the president goes it alone, and the courts and Congress wash their hands of responsibility. Structural reform is sorely needed to ensure a strong president within a strong constitutional system of checks and balances. In the end, the Framers understood an important and enduring truth: that our national security is best protected if the power to conduct America’s foreign policy remains a power shared.
– Harold Hongju Koh (@haroldhongjukoh) is Sterling Professor of International Law and former Dean, Yale Law School. He formerly served as Legal Adviser (2009-13) and Senior Advisor (2021), Office of the Legal Adviser, U.S. Department of State; U.S. Assistant Secretary for Democracy, Human Rights & Labor (1998-2001); Attorney-Adviser, Office of Legal Counsel, U.S. Department of Justice (1983-85); Law Clerk to Justice Harry A. Blackmun, U.S. Supreme Court and Judge Malcolm Richard Wilkey, U.S. Court of Appeals for the District of Columbia Circuit (1980-82). Published courtesy of Just Security.
