Administrative Law Goes to War

Consider the following cases: (1) The President initiates military action against Iraq in 2003, contending that the best evidence suggests that Saddam Hussein "aided the terrorist attacks that occurred on September 11, 2001." (2) The President initiates military action against Iran in 2006, contending that the Central Intelligence Agency can show that Iran's government has "harbored" members of al Qaeda since 1999. (1) (3) The President initiates military action against North Korea, contending that the Central Intelligence Agency can show that North Korea's government has "assisted" al Qaeda financially since 2003. (4) The President authorizes the use of force to arrest and detain citizens of France, who are brought to the United States and imprisoned because they knowingly provided significant financial assistance to organizations that supported al Qaeda in 2000. (2) (5) The President detains an American citizen captured at an American airport, contending that the citizen "aided the terrorist attacks that occurred on September 11, 2001." He plans to detain the citizen indefinitely. (6) The President orders the killing of an American citizen at an American airport, contending that the citizen "aided the terrorist attacks that occurred on September 11, 2001." Is there a body of principles that can help to evaluate the legality of these actions under the 2001 Authorization for Use of Military Force (3) (AUMF)? I suggest that there is, and that it can be found in a single area: administrative law. Most obviously, presidential action under the 2001 AUMF, or any imaginable AUMF, should be subject to the principles that have emerged in the wake of the Supreme Court's extraordinarily influential decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (4) As we shall see, the logic of Chevron applies to the exercise of executive authority in the midst of war. (5) Professors Curtis Bradley and Jack Goldsmith make an important contribution to our understanding of presidential power during wartime. (6) But I believe that their analysis would be clearer, simpler, and more straightforward if they focused more systematically on administrative law principles. (7) A special advantage of this approach is that it imposes the right incentives on all those involved, including Congress. My general conclusion is that the President should have a great deal of discretion in interpreting ambiguities in the AUMF, subject to a constraint of reasonableness. The principal qualification is that if the President is infringing on constitutionally sensitive interests, the AUMF must be construed narrowly, whatever the President says. Under this framework, the President plainly has the authority to act in cases (1), (2), and (4) above. He lacks that authority in case (6). For reasons to be explored, cases (3) and (5) are extremely difficult. This framework, rooted in administrative law, is properly used both by reviewing courts (subject to any justiciability constraints (8)) and by members of the Executive Branch advising the President about the legality of proposed courses of action. Indeed, this framework furnishes the appropriate principles not only for understanding any authorization for the use of force, but also for evaluating all exercises of presidential power when Congress has authorized the President to protect the nation's security. (9) I. PRESIDENTIAL POWER IN CHEVRON'S SHADOW Chevron creates a two-step inquiry. The first question is whether Congress has directly decided the precise question at issue; the second is whether the agency's interpretation is reasonable. (10) Let us see how these ideas apply to the AUMF. The analysis is somewhat technical, but the conclusion is not: the President has broad authority to construe ambiguities as he sees fit. A. Chevron Step Zero (11) In the aftermath of Chevron, the Court has emphasized the need to ask a threshold question: do Chevron's deference principles apply at all? …