Professor Wins Prize for National Security Law Scholarship

University of Virginia School of Law professor Ashley Deeks has been awarded the 2024 Mike Lewis Prize for National Security Law Scholarship for her article “(Sub-)Delegating National Security Powers.”

The prize is given by the Strauss Center for International Security and Law at the University of Texas at Austin and the Ohio Northern University Pettit College of Law, in consultation with the American Association of Law Schools’ Section on National Security Law.

Deeks’ article, published in the University of Pennsylvania Law Review, analyzes the legal doctrine and historical practice surrounding national security delegations, which occur when the president designates specific decision-making authority to a senior government official, who may then sub-delegate those decisions to someone else down the chain of command.

Her paper looks at the costs and benefits of this decision-making process and Congress’ powers to constrain delegations and sub-delegations. She also proposes ways lawmakers and presidents can structure those delegations.

The paper describes why the public should be concerned about sub-delegations, especially in national security, where activities are often classified and high-stakes, Deeks said. Delegations can obscure the identity of the person making decisions, which makes accountability more difficult, and the delegee may produce decisions that the person delegating the power wouldn’t have wanted. Also, delegating decisions to initiate force to military officers can undercut the constitutional principle of civilian control of the armed forces. 

“The paper looks at five types of real-world delegations to explore how those concerns might manifest themselves, including delegations related to the launch of nuclear weapons, the conduct of offensive cyber operations and targeted killings, freedom of navigation operations and decisions to designate certain foreign forces as ‘hostile,’” Deeks said.

She was motivated to write the paper after spending 18 months at the National Security Council, where she served as White House associate counsel and deputy legal adviser to the National Security Council. In that role, she realized that these types of delegations can be consequential but opaque to outside observers.

In her research, Deeks found that the U.S. Department of Justice has issued opinions about presidents delegating constitutional and statutory powers, but those opinions are difficult to interpret, she said.

“In general, the DOJ seems to believe that the president may delegate his commander-in-chief powers when an immediate response is militarily necessary, but the breadth and nature of that exception is not crisply defined,” she said. “When it comes to statutes, the president may sub-delegate most of his powers, but the DOJ has said that there may be statutory authorizations that are so important that Congress seems to have intended to foreclose the president from delegating them.”

Greater accountability and transparency between Congress and the White House could help prevent sub-delegations that produce unintended consequences, she added. For example, lawmakers can expressly prohibit the president from delegating certain powers given by statute, and Congress should consider including such prohibitions when delegating powers that could have serious national security implications. Deeks said Congress could also demand to be notified when the president makes certain statutory sub-delegations. 

“Based on my research, it’s not clear that Congress has much visibility into existing delegations, and it’s not entirely clear that the White House itself has full visibility into all of the important presidential sub-delegations that different administrations have issued over the years,” she said. “To address that, the president could require every national security agency to disgorge the relevant delegations it has received from a president in a comprehensive package, along with recommendations about whether and why to continue, terminate or amend those delegations.”

She added that the president could minimize the chances of delegees acting against his wishes by including more detail in the delegations and limiting the delegees’ authority to sub-delegate those powers further into their government agencies.

Deeks is the Class of 1948 Professor of Scholarly Research in Law, director of the school’s National Security Law Center and a senior fellow at the Miller Center. She is a member of the State Department’s Advisory Committee on International Law and the American Law Institute.

Previous Mike Lewis Prize winners include UVA Law professors Kristen Eichensehr for “Courts, Congress, and the Conduct of Foreign Relations” (for 2018) and Saikrishna Prakash for “Deciphering the Commander-in-Chief Clause” (for 2023). The first prize was awarded in 2017.