Over 35 years ago, a young Yale Law School professor explained “Why the President (Almost) Always Wins in Foreign Affairs.” After decades of experience as an executive branch lawyer and scholar, Yale’s now Sterling Professor of International Law Harold Hongju Koh has adapted his theory of the “National Security Constitution” for the 21st century in his new book. The “National Security Constitution,” according to Koh, “rests upon a simple notion: that the power to conduct American foreign policy is not exclusively presidential, but is a power shared among the president, the Congress, and the courts.” But this ideal of “balanced institutional participation” in national security policy-making has gotten badly out of balance. Koh’s diagnosis of the pathologies in the U.S. constitutional system for national security policy-making runs like this: “When national security threats arise, weak and strong presidents alike have institutional incentives to monopolize the response; Congress has incentives to acquiesce; and courts have incentives to defer.” This description covers many, but not all, of the dysfunctions in national security policy-making.

Citation
Ashley S. Deeks & Kristen Eichensehr, Frictionless Government and the National Security Constitution, Just Security (October 28, 2024).