Editor’s note: This article is part of the Just Security Symposium on Harold Hongju Koh’s “The National Security Constitution in the 21st Century”.
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” (1). 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” (2). This description covers many, but not all, of the dysfunctions in national security policy-making.
In a forthcoming article, we warn of another kind of concern with U.S. foreign relations and national security policy-making, one born not of congressional acquiescence but of unbridled congressional enthusiasm for executive branch policies. We deem these situations examples of “frictionless government.”
Frictionless government occurs when there is overwhelming bipartisan and bicameral consensus about a particular set of policies, as well as consensus between Congress and the President. In frictionless government, the usual tensions between congressional and executive desires disappear; the contentious partisan interactions between Republicans and Democrats quiet; and the often fractious inter-agency negotiations within the executive branch are streamlined. The disappearance of partisan, interbranch, and interagency checks can amplify cognitive biases that often arise in decision making, including groupthink, and result in governmental actions that spark or escalate conflict, trigger actions by U.S. adversaries that undercut U.S. security goals, and unlawfully target domestic constituencies perceived to be linked to foreign adversaries.
In adding to the picture of ways foreign affairs policymaking can go wrong, we aim to ensure that it more often goes right. Koh’s story and ours both highlight situations in which actors outside the Executive either cannot or will not naturally introduce friction into policymaking at a time when friction would improve those policies. It is not surprising, then, that our concern about frictionless government leads us to turn to some of the same entities that Koh suggests for restoring checks and balances more broadly and to some similar suggestions for specific reforms.
Youngstown and Category 1 Complacency
The lodestar for Koh’s ideal of “balanced institutional participation” in national security decision-making is Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer (14). Jackson recognized that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He famously set out a tripartite framework for assessing exercises of presidential power. In Category 1, “the President acts pursuant to an express or implied authorization of Congress,” and “his authority is at its maximum.” In Category 2, the President acts without “either a congressional grant or denial of authority,” placing him in a “zone of twilight.” And in Category 3, where the President takes acts “incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”
Much of the concern over unconstrained presidential actions has focused on presidential actions in Categories 2 and 3. This focus is understandable, since those categories are most indicative of potential presidential power grabs—that is, aggressive claims of executive authority without the support of or over the opposition of Congress. To his credit, Koh goes further, interrogating just how the President ends up in Category 1 in some cases. Koh points out that Presidents have often construed laws such as the War Powers Resolution and International Emergency Economic Powers Act (IEEPA), which were designed to constrain executive actions, as authorizations instead (92). And he argues that “Congress has usually acquiesced in what the president has done, through legislative myopia, inadequate drafting, ineffective legislative tools, or lack of political will” (92). He places a share of blame on the courts as well, including for invalidating legislative vetoes in key statutes that Congress intended to check the Executive and for declining to adjudicate other disputes.
But even Koh’s more nuanced account risks complacency about Youngstown Category 1. Many recent congressional enactments related to national security are aimed not at constraining the President, but at empowering him. This isn’t congressional acquiescence; it’s a congressional shove. Congress is putting the President into Category 1 not by accident or because of court disruption of a statutory scheme, but precisely because there is bipartisan support in Congress for the executive branch to do more and faster to address perceived national security threats. Category 1 cases, Jackson said, are “supported by the strongest of presumptions and the widest latitude of judicial interpretation,” but they can still go wrong.
The Risks of Frictionless Government
In our forthcoming article, we examine three historical examples of frictionless situations and the resulting harms they caused: the internment of Japanese-Americans in the wake of the attack on Pearl Harbor; the aftermath of the Gulf of Tonkin incident, which led to the Gulf of Tonkin Resolution and deep U.S. involvement in the Vietnam War; and the policies that followed the September 11 attacks. These examples illustrate instances in which policies produced in frictionless situations were deeply flawed.
Decisionmakers sometimes relied on faulty factual premises that went unchallenged. Or they embraced xenophobic or racist beliefs. Or they sought short-term gains at the cost of longer-term strategic goals. And yet all of these policies rested on or were supported by statutes that Congress passed by wide margins, with bipartisan support, and with the encouragement of the White House.
To be clear, not all frictionless situations inexorably lead to poor foreign policy choices: the contemporary case study of the response to Russia’s full-scale invasion of Ukraine provides a counterpoint. Nevertheless, as Amy Zegart put it, “When everyone’s agreeing, you shouldn’t be comforted. You should be worried.”
By that metric, current U.S. policymaking with respect to China is worrisome. China policy has been a rare area of bipartisan agreement in the midst of an otherwise deeply fractured political environment. In this context, Congress has consistently urged the Executive to go further, passing new authorities for the Executive to deploy and urging the Executive to do more with existing programs.
The historical examples of frictionless government illustrate a range of reasons to be concerned, which is why we think it is important to ask skeptical questions of the government, even—or perhaps especially—in settings in which Congress is not simply acquiescing to executive action, but affirmatively pushing the Executive to act. Perhaps the most significant concern is the risk that the United States will unintentionally slide into war or escalate a conflict.
Robert Jervis famously conceptualized a “spiral model” of international conflict, in which actions by states that are simply seeking to enhance their own security create a vicious circle of security competition. When the United States hastily takes steps to improve its own security, adversaries may perceive these steps as aggressive and react to having their security reduced in ways that could make the outbreak of conflict more likely.
A second category of harms from frictionless government comes from the reactions of countries targeted by U.S. policies—reactions that can undercut the policy goals the United States intends to achieve. The U.S. use of economic tools of national security provides an example. The incautious imposition of sanctions or export controls, driven by strong pressure from Congress or from public fervor about an outside threat, might stimulate their targets to avoid the U.S. financial system or to develop indigenous industries faster than they otherwise would in order to have an alternative source of products not subject to U.S. restrictions.
Finally, several of the historical examples we explore illustrate that it is easy in frictionless times for Congress to enact new laws or for the Executive to deploy existing statutes in ways that unlawfully target domestic constituencies perceived to have links to foreign adversaries. Although civil liberties may return to their prior equilibrium once friction re-enters the system, affected individuals suffer real harm during the frictionless period, and the United States can suffer long-term reputational damage.
In sum, while there are undoubtedly reasons to worry about undue accretions of executive power when the President is acting in Youngstown Categories 2 or 3 or dubiously claiming to be in Category 1, even instances where the President is clearly in Category 1 can be deeply problematic when the political branches and political parties are all aligned in pursuit of a policy. Whereas Koh focuses on “reduc[ing] the isolation that currently surrounds executive-branch activities” (267) in some cases, we cannot lose sight of the risks when the Executive is not isolated at all, but is instead surrounded by enthusiastic external cheerleaders.
Where Do We Go from Here?
Concern about unchecked government action, whether by a unilateralist Executive (as Koh and others discuss) or by a deeply empowered and encouraged one (in our frictionless government scenarios), naturally leads to calls for reimposing checks and balances. The difficulty, of course, is how exactly to do so.
We propose reliance on both friction imposed by the political branches on themselves (or on each other) and sources of friction external to the U.S. government. Self-imposing friction in advance of foreign policy crises could serve as precommitment devices for the political branches. A range of techniques could fulfill this role. For example, the Executive could require dissent by having someone within the Executive play the role of “devil’s advocate,” pressure-testing policy choices that have garnered too much unanimity. Other efforts could foster dissent by diffusing to other agencies a mechanism like the State Department’s long-standing “dissent channel,” which allows employees to communicate contrary views to department leaders without fear of retaliation.
Another technique is for executive officials or Congress to mandate reason-giving to justify policy choices. Reason-giving can improve the quality of decisions, deter abuses, and ensure adherence to legal standards. A final technique of self-imposed friction is to build in policy off-ramps. Such off-ramps might take the form of sunset clauses in statutory authorizations or periodic review of policies that might lead decision-makers to reconsider policies made at a time of broad consensus and with undue speed at a later time, when cooler heads may prevail.
Some of these techniques of self-imposed friction may also guard against a unilateralist Executive, and for that reason, we see overlap with some of Koh’s robust suggestions for reform in his book’s closing chapters. Koh supports strengthening the Executive’s internal checks and balances, and we agree that the Executive would benefit from a more adversarial approach that fosters contestation in foreign policy decision-making (266-68). Koh also pushes for the establishment of a “joint committee on national security” in Congress to become “a core group of expert members on national security matters” (275), advised by a “congressional legal adviser” (278). Such institutions could force greater reason-giving by the President. Koh envisions a Congress with these institutions engaging in “adversarial” review of executive branch legal opinions and presidential national emergency declarations (under a revised version of IEEPA).
Of course, there would remain a risk that the congressional joint committee on national security might not serve as a counterweight to the Executive, but rather could become an enabler in situations of frictionlessness. The committee members’ status within Congress as the branch’s experts could lead other potential congressional counterweights to defer to the committee, which might itself defer to the Executive. Care must be taken to ensure that efforts to solve one problem don’t inadvertently exacerbate another.
The risks posed by the collapse of interagency, partisan, and interbranch checks leads us to turn, as Koh does (295-96), to potential sources of friction external to the U.S. government as well. These potential external counterweights, including state and local governments, foreign governments, and private companies, are all imperfect checks. Each has its own interests, separate and apart from serving as checks to U.S. government policies. In some cases, those interests may be adverse to those of the United States; in others, their interests may lead them to accelerate frictionlessness rather than check it. U.S. states are arguably exacerbating frictionlessness with respect to China policy today, adopting investment restrictions and drone bans that go beyond those of the federal government.
Nonetheless, in some situations of frictionless government, external actors may step in to provide friction or nudge entities within the U.S. government to reactivate as internal sources of friction. They may create friction by filing litigation that brings courts into the picture, by lobbying legislators, or by highlighting domestic economic consequences of government decisions. Or they may leverage their role as necessary partners to federal government policy implementation to raise concerns or slow roll implementation.
Layering different kinds of friction is crucial. In any given case, one or more of the checks may fail. Checks that may restrain a unilateralist Executive, such as empowering Congress structurally to push back effectively, can still fail in situations of frictionlessness, where Congress lacks the policy or political incentives to restrain the Executive.
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In his Conclusion, Koh quotes Justice Brandeis’s dissent in Myers v. United States for the point that “the purpose of separation of powers is ‘not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy’” (329). Considering both the story Koh tells about executive unilateralism, congressional acquiescence, and judicial deference, and the story we tell about situations of frictionless government reveals that friction is, for one reason or another, too often lacking in acute moments of foreign policy-making. With the benefit of hindsight on the 20th century and nearly the first quarter of the 21st, we can see that friction is in fact not inevitable. It is, however, still crucial.