Welcome everyone. Is this on? Yep. Yes. Okay. Welcome everyone to tonight’s hey, I have to speak into it to make it on. Thank you to tonight’s Constitutional Conversation, the first of that particular type of event in 2026, and it’s my pleasure to welcome back Professor Nathan Chapman of the University of Georgia Law School.
And I say welcome back because Nathan was a fellow and executive director of the Constitutional Law Center back in the day. And I don’t know if he’s, he isn’t here yet. He, maybe he will sneak in, but our Professor Jud Campbell is going to, if he’s on jury duty today but if he gets here in time he plans to engage a little bit with Nathan on tonight’s topic, which will particularly be a historic event. It’ll be a historic event, if I can remember to talk into the microphone, a historic event because that will mean that there are two former executive directors of the Con Law Center speaking together in front of a current and future executive director. So it will be an executive director, Quada.
So anyway, Nathan is good, has become a very good friend and a co-author, he and I. And I actually should take some credit for tonight’s topic because he and I did a paper together in the Yale Law Journal about, oh, what about 12, 13, 14 years ago on the due process clause entitled Due Process as Separation of Powers.
And Nathan has continued work in this area with a series of papers on Due Pro, the due process of war and due process in foreign nations. So these are applications of the due process clause outside of the domestic justice context. He and I also co-authored a book on the establishment clause, but I don’t think that’s relevant here tonight.
So he’s talking on the subject of the recent attacks on drug smuggling, supposed drug smuggling boats in the Caribbean. And the genesis of this talk was an email exchange we had with several of our colleagues in which it was suggested that maybe the best precedent for this would’ve been, at least from a due process point of view would’ve been the attacks on pirates back in the day because they too were considered to be enemies of all mankind.
And Nathan says, oh I happen to have just written an article about the due pro due process as it applied to pirates. And I said, come out back to Stanford. People will be fascinated to hear about that. And so please join me in welcoming Nathan Chapman to talk to us about pirates and drug smugglers, and maybe even a little bit about due process along the way.
Thank you very much Michael and Bella for inviting me to do this. It’s wonderful to see all of you here. I’m excited about our time together. As Michael said I haven’t just written a paper about due process abroad. It’s been quite a while now and there’s been quite a lot of water under the bridge since then.
So I’ve really appreciated the opportunity to revisit those studies and learn a little bit more about it for purposes of thinking about the strikes.
I presume all of you are aware that the administration has been striking small vessels in the Caribbean and in the Pacific. And the government’s justification for doing so is not that Congress has authorized it to do. Congress hasn’t done that. It’s that they are manned by the ships are manned, accrued by, enemy aliens, unlawful enemy aliens. And so the government is presumably based on this justification, authorized to proceed against them as belligerents, as enemies at war. As we now know, these were a prelude to a bigger coercive regime change operation in Venezuela.
And it remains to be seen how much longer these attacks are gonna last. The theory is that these are narco terrorists. This is the language the administration is using. And again, enemy belligerents. I want to make three main claims tonight. I think each of them is sufficiently provocative to keep your attention at least for that part. And if you miss any of them, you can wake back up and it’ll be still interesting. I, I don’t know if you’re getting a kind of big difference depending on whether I look down or up. So maybe I can fix that a little bit by doing that.
So the first of the, these three main claims is this, that under current constitutional law, these attacks are probably constitutional, they’re probably authorized by Article II. There’s limited hostilities within the president’s power to do that. The second is that at the founding they were, they would probably have been unconstitutional. They probably would’ve been seen as law enforcement activities that should have been subject to ordinary due process, criminal trial in the federal courts and so forth.The third main claim here is that the difference between their law and our law on this point, I think reveals, some really interesting features of our constitutionalism. And I think it teaches us a little bit about constitutional interpretive theory, especially for those of you students who may be here beginning to think about that.
Before I begin though, in earnest, I want to, I make a couple of caveats. I’m not gonna talk about the abduction of Maduro and his wife Celia Flores. Happy to talk about that in the Q&A. I do think it raises some slightly different constitutional questions a second. Most of the, what you’ve probably read in the commentary about this has been about whether these attacks are consti, I’m sorry, are lawful under international law.
That’s been the media’s main focus. They haven’t talked a bunch about constitutional law. I’m not gonna talk about international law, except as it’s relevant to my constitutional analysis. It raises a bunch of different questions. But I think the constitutional ones are hard enough.
Okay, so big point number one. Under current law, the boat strikes are likely constitutional exercises of Article II war powers as limited hostilities against enemies. I think the difficult question here is who gets to decide whether the smugglers are enemies in addition to being criminal suspects? I think the answer appears to be that the president gets to decide that at least for limited hostilities outside the United States, we’ve gotta, I think, pretty clearly distinguish between when the government is operating under its war powers and when it is engaged in law enforcement operations.
Let’s focus on war first. That’s the justification the president is giving. Here’s the big framework. The constitutional text gives the federal government all the war powers. It needs to wage war and to do so as the Supreme Court and lots of commentators have said to wage it successfully. The Constitution also divides these powers between Congress and the President.
Congress has the power to declare war, to grant letters of mark and reprisal to tax and spend for war to create rules for the armed forces and so on. It also has the power that is necessary and proper to effectuate any of those or any other powers, including the president’s powers. The President on the other hand, is given the executive power and the commander in chief power.
He also has the duty to faithfully execute the laws. So the basic structure and text of the Constitution is relatively clear with respect to these di division of responsibilities. But it does raise a lot of questions that have been sussed out over time. Is there only one kind of war, a declared war?
What if it’s an undeclared war? Or what if it’s war-ish? Does the president have any powers in that situation? In particular here, right? May the president determine when someone is an enemy and use force against them without congressional authorization. Here, you think we might be able to turn to judicial precedent to answer the question?
Especially maybe Justice Jackson’s famous three part test from the Youngstown case, the steel seizure case. Some of you have learned about this in Con Law One, probably. Jackson hopefully distinguishes between when Congress has authorized the President to do something, then the president has all the powers of the federal government to do it. That’s category one. When congress has said nothing about it. And the President has all of his powers under Article II. That’s category two. And then when Congress has actually forbidden the president to act is category three, and here the president can only act if he clearly has a unilateral authority that Congress cannot interfere with it all.
Seems pretty helpful, right? In this case, Congress has neither authorized these strikes expressly nor forbidden them expressly. So we should be in category two, right? The president gets to act on Article two powers, or are we What about the War Powers Act? The statute really complicates the Youngstown analysis.
The short version is that it pretty clearly purports to forbid hostilities without congressional action after 60 days. So the president might have been in category two for September and October. Since then he’s been in category three. Congress says, no. The War Powers Act says, no. I really don’t think War Youngstown and the act are all that helpful here though.
Lemme tell you why the Youngstown Framework doesn’t really tell us what the president has unilateral power to do in category three. And the War Powers Act itself only tells us Congress’s general preference, right? It doesn’t speak nearly as precisely as if Congress were to prohibit these acts or to prohibit the use of funds that it has generally appropriated for these acts.
If we turn from judicial precedent to modern executive practice, it’s pretty clearly in favor of the president’s unilateral power to engage in limited hostilities. At least since 1915. And that is pretty randomly drawn out of a hat the president has used military forces in hostilities with offensively without express Congressional authorization in Cuba, Korea, Cuba, again, Iran, Panama, Somalia, Haiti, Kosovo, Libya, Syria, and Iran again. And perhaps yet again. Soon. In some of these cases, the United States acted with other nations pursuant to a UN authorization, but in none of them did it have congressional authorization to engage in the hostilities.
And this doesn’t even include the numerous times that the president has paid foreign mercenaries to engage in hostilities abroad which is difficult to distinguish constitutionally, I think. But what about rights? Don’t the drug smugglers have rights under the Constitution, under the Bill of Rights?
The short answer is probably not. Traditionally enemies have had, have no constitutional rights. The rights that they enjoy are under the law of war or international law. This was the case historically, whether the enemy was a city as citizen or an alien, and whether the enemy was inside the United States or outside of it.
There are several important exceptions under recent judicial doctrine, but they don’t seem to apply here. They all involve irregular combatants, detained indefinitely within the US. So the closest doctrine might come to the closest that recent doctrine might come to protecting enemy combatants abroad is actually from an opinion during the Obama administration that the Department of Justice she issued that extended an incredibly watered down version of due process to a citizen who was believed to be an Al-Qaeda operative in Yemen but only because he was a citizen.
That decision I think was pretty inconsistent with the tradition of due process during war. And in any case, it doesn’t seem to apply here and I very much doubt that the Trump administration is relying on it or would’ve applied it. Okay. So these are the basic principles that I think the government is probably relying on.
This is a limited set of offensive hostilities. Even though there’s no general war and Congress has not expressly authorized them. Recent practice, recent being the last a hundred years at least strongly supports the president’s authority to do this. And the folks have no constitutional rights against them.
But is this really war? Aren’t narco terrorists just criminals? Aren’t they just drug smugglers, couriers for an international. Criminal enterprise. Suppose that’s the case. What would the constitutional analysis be? It might not be as favorable as you think, although it is far more favorable.
So I think it’s clear that punishing them as criminals without trial and due process violates the Constitution. What is much more difficult is whether it violates constitutional rights that they have. This is because the Supreme Court has really muddied the waters with respect to the constitutional rights of criminal suspects abroad.
It’s held that the constitution, that suspects seized abroad, don’t enjoy Fourth Amendment protections. In the course of that decision, it misread an earlier opinion and said in dicta that they don’t all have due process rights either. I don’t think that’s. A correct reading of the tradition. But it does raise some pretty important questions.
So it’s possible that we’re in this kind of strange space where folks who are criminal suspects abroad don’t technically have the modern kind of constitutional rights we think of where it gives them a ticket or a Trump that’s personal that they can turn in to assert against the government, but they would still be protected by the separation of powers, rules that require they be punished only pursuant to law after a trial in a federal court.
So effectively they’re protected that way. So a lot seems to depend with respect to whether this is constitutional under our law, on whether it is an exercise of war powers on the one hand, or criminal punishment on the other. Which one is it? More importantly, I think who gets to decide? The Civil War cases are pretty instructive.
The problem with the Civil War from a constitutional standpoint was that it involved citizens who were also enemies. So were they traitors, the Confederate soldiers subject to criminal law entitled to due process, or were they enemies subject to the law of war? And not entitled to constitutional rights, but protected by the law of war.
The Supreme Court and the President both concluded that the president could proceed against them either way. It was up to the president. He could treat them as enemies subject to being held and detained as prisoners of war, or he could try them as traitors. Maybe the same is true for these kinds of.
Unlawful enemy combatants. It’s possible their conduct amounts to a crime. Probably they presumably the government thinks that they just nabbed Maduro and indicted him for basically being the ringleader of the outfit. Presumably they think it amounts to a crime for which they could be punished according to the law.
But it’s also possible that their conduct also amounts to hostilities that makes them enemies against the United States. Who gets to decide that? In the prize cases during the Civil War, the Supreme Court asserted its ultimate authority to determine whether there were hostilities, such that the president had the authority to proceed against neutral vessels according to the laws of war.
Likewise, in Boumediene v. Bush, much more recently, this is the famous Guantanamo Bay case, the court held that unlawful enemy combatants whether citizen or non-citizen held in territory controlled by the US are entitled to habeas corpus and Federal court review of their status. So in a case properly within a federal court’s jurisdiction, I think it’s very possible the court would consider whether these targets really are unlawful enemy combatants.
I would personally like that result. I, and I’ll come back to that a little bit later in the talk. I’m afraid it seems pretty highly unlikely to happen like unlike both the Civil War case and the detention of unlawful combatants at Gitmo these strikes are limited in scope and duration. They’re happening outside the jurisdiction of the federal court.
So it’s unclear what structural or individual rights the smugglers could or their, their family members perhaps could plead. They’re not entitled to habeas corpus. They’re not being detained, certainly not in the United States. And they’re not entitled to a suit for damages after the fact. So even if a case arose within a federal course jurisdiction, which is highly unlikely, I think the court would be unlikely to second guess.
The President’s determination, it’s based on top secret intelligence that has not, and it hasn’t been objected to formally by Congress yet. And at least as long as these hostilities remain limited in scope and duration, I think the courts would be very reluctant to intervene. So the conclusion for this first part is that the both strikes probably constitutional under our law, they’re limited hostilities.
At least so far the president probably has unilateral Article two power to engage in them. What about the founder’s law? I think they’re unconstitutional under the founder’s law. I think Congress then would’ve had to have authorized hostilities, even limited hostilities of this sort. Or they would’ve.
Entitled to due process in a full federal court trial. There are two main doc-, doctrinal differences at the founding. I wanna focus on first. It was uncontroversial then that due process applied to all law enforcement including against alien seizes outside the United States. Second, outside of war, the president could not engage in offensive hostilities, even limited hostilities without express cong congressional authorization.
I want to discuss three episodes that illustrate these differences in some depth, but I want, I wanna first lay out the basic outline. Let’s talk about law enforcement first. The constitution gives Congress, of course, the power to define and punish piracy and other felonies on the high seas. Says All crimes should be tried by a jury in federal court the first Congress used that power.
It created lower federal courts, gave the circuit courts jurisdiction over crimes and enacted the Crimes Act of 1790, which defined piracy and four other crimes committed on the high seas. It then enacted and the states ratified the Bill of Rights, which expressly guaranteed a number of customary procedural rights which expressly, I’m sorry, including the catchall due process of law over time, as we’ll see, Congress expanded the definition of piracy and in, in fact various other laws that applied on the high seas or sometimes even in foreign soil that prohibited the slave trade, non intercourse acts, embargoes, those sorts of things.
The early practice was very clear. I think punishment for violation of these laws was upon conviction. In federal court before 1800, the most frequently indicted federal crime was assault and battery aborted ship. Between 1,818 30, Admiral T and Maritime cases accounted for more than 30% of all federal indictments.
During that period, 406 of the approximately 2,700 indictments were for piracy. Criminal suspects were charged and tried in federal circuit courts and ships in cargo were liable in district courts pursuant to the rules of admiralty. Now to, I want to dispel what your notion may be that all piracy is basically whatever Jack Sparrow did in the movies.
It’s got a group of motley crew who go around nabbing other ships and maybe killing the, their crew. That was the stereotypical or paradigm case of piracy. But as congress defined piracy, it included a bunch of other felonies. On the high seas. So it could be murder on a, an ordinary merchant vessel.
It could be failed mutiny on a merchant vessel and so forth. There was a lot of indictment and conviction for those crimes. The founders’ understanding of war was quite different in two important respects. The first is that the written constitution was understood to be integrated with the Law of Nations.
That is to say the powers to declare war to issue letters of mark and reprisal and so forth were all understood to incorporate and operate within a broader legal and moral matrix that was shared by all of the North Atlantic powers. The Law of Nations was the law of reason, i.e., the law of nature, applied to states.
It was enforced in the first instance by nations against one another through diplomacy and war, but it was also integrated into the municipal or domestic law of each nation. So a state of war, whether it was declared or not, changed the rights and duties of those nations to one another. But it also changed the rights and duties of individuals under the domestic law or municipal law of those nations.
A resident friendly alien who was subject to an enemy state became, I’m sorry. So a resident friendly alien who was the subject of a state that became an enemy. That alien became an enemy alien. His or her rights to liberty and property changed pursuant to the law of nations as it was implemented by the municipal law.
So it was really important to be able to distinguish whether someone was an enemy citizen or a non-citizen, and if so, whether they were a neutral or an alien. It was important in part because mistreatment of an enemy or a neutral would violate the law of nations and give excuse for reprisal or other hostilities.
A second big difference was that it was much clearer that Congress controlled the exercise of limited hostilities. In a full war, the president could exercise the government’s full war powers. Such would be the case with a declaration of war on either side. But it would also be the case if there was a de facto general war one that was full, even though not declared.
Likewise, the president could repulse attacks even if the nation was not at war, so he could do what was necessary to defend it, specific attacks. But if the nation was not at war and Congress had not authorized hostilities, the president could not initiate them. Most wars were not full. Most were partial, which means Congress controlled what the President could and could not do.
This is. Best illustrated by a case that some of you may know called Little v. Barreme during the Adams administration. So this is about 1798 or so. Congress finally got fed up with the French attacking American merchant vessels and authorized a maritime war against France, but only a maritime war.
It was limited Congress restricted American trade with French ports. To do this, it authorized the seizure of any American or apparently American ship or cargo bound to a French court. The Secretary of Navy starter instructed his officers to capture any apparent American vessels bound to or coming from a French port, you see where we’re headed.
Captain George Little, the USS Boston captured a ship that turned out to be Danish. Sailing from a French port following the instructions of the Secretary of War, the owner of the, that vessel sued Captain Little in maritime trespass for capturing the ship, sailing it to the US and trying to libel it and take it as prize.
The United States Supreme Court said you can’t take it as prize, and in fact, you owe damages to the other folks. The reason is you didn’t have legal authority. Only Congress can authorize capture as a limited hostility and we’re gonna interpret Congress’ authorization very strictly. It said you can capture ships going to French ports, didn’t say anything about ships coming from them.
So your instructions were unlawful. You had no authority. Don’t feel too bad for Captain Little. Congress actually indemnified him. Everybody’s a winner, but I think the case illustrates why the power to determine the scope of hostilities was left to Congress. Okay. As I said, war changed not only the rights and duties of nations, but of individuals too.
That means the law governing the rights to life, liberty and property changed during war, not only for Americans, but for neutrals and for enemies. The power to declare war then and to authorize hostilities up to and including full war was part of the legislative power, the power to determine and define the law of the land, the law that would affect the rights and duties, not only of the nation, but of individuals too.
This is an important part of the founding generation’s concept of war powers that I think most commentators today don’t give very much attention to. Okay. So I’ve got a few examples of activities. Of law enforcement that I think illustrate what I’ve been saying. But I’m gonna skip to the main one ’cause I think it’s the most on point and we can come back later during questions if you have interest.
I’ll briefly say something on the way about the Barbary Pirates. Anybody heard of the Barbary Pirates? Not really barbery and not really pirates, so discuss amongst yourselves, but definitely not pirates. The US saw these as like quasi states. So it’s Tripoli, Algiers and Tunis north African coast, the Barbery coast.
And they had for years owed allegiance to the sultan of Constantinople. And they were running basically a protection racket. So they, when Western ships would come through, they would say, it’s a nice little ship you have there. Be ashamed if anything happened to it. In fact, if something happens to it, we’re gonna destroy the ship and take all of the crew as slaves.
So the US paid ransom for about 10 years, not ransom tribute for about 10 years. And eventually they had their own fleet and they were fed up with this, and so they decided to fight back. And the Jefferson administration debated internally about whether, how far Jefferson could authorize the US naval vessels that were gonna convoy with American vessels to go without Congress authorizing them to in initiate in hostilities.
And I think their conversation is, says a lot. The cabinet agreed ultimately with Albert Gallatin. He was the Secretary of Treasury. That quote, to declare war and to make war is synonymous. The executive cannot put us in a state of war. But if we are put into that state, either by the decree of Congress or the other nation, the command and direction of the public force then belongs to the executive.
So basically, if you get there and you find out we’re at war with one of the Barbery states, then you can do all the things that the president has the authority to do that, that the government has the authority to do with the war power. When Jefferson asked, may the captains be authorized, if war exists to search for and destroy the enemy’s vessels wherever they can find them, everybody agreed he could.
Except for Attorney General Levi Lincoln. When the convoy got to the Mediterranean, they found out that Tripoli had already declared war on the United States, and they acted accordingly. So that’s where the line from the Marines, him. We fight our nation’s battles, right from the halls of Montezuma to the shores of Tripoli comes from.
Now I want to not end, but we’re getting closer, with a little bedtime story about what is the end of the Pirates of the Caribbean, the real pirates of the Caribbean. So after the war of 1812, a bunch of Spanish colonies were in rebellion against Spain, and their revolutionary leaders commissioned about 70 Americans to privateer against Spain.
So these were private American vessels that basically acted on behalf of these rebellious colonies to attack Spanish vessels. Unfortunately this violated US law of neutrality, and so the US prosecuted a bunch of them, but not very successfully. The juries were very reluctant to convict. A lot of these were kind of hometown heroes, both for fighting Spain, for smuggling again, a bunch of otherwise embargoed cargo. But it does show, I think that the persistence of trying to subject these folks to to trial shows that the purchase that due process had on even the capture of pirates. But things began to change later in the decade. The Civil Wars subsided and a lot of privateers and then other sort of various roustabouts who were left over from the Civil War turned to attacking American merchant vessels.
Juries started to convict, indictments went up and Congress ultimately extended the definition of piracy under US law to extend to anyone who committed what would’ve amounted to piracy under the law of nations. In other words, they made it clear that. The crime of piracy under US law extended not only to citizens, not only to people who acted on or against US vessels, but against non-citizens, anywhere that they committed piracy.
The Supreme Court upheld that exercise of power. By the early 1820s, the Pirates had grown Boulder tales of their depredations had multiplied. They were killing whole crews because it was hard to land them someplace safe. And they would retreat into it’s like narrow rivers and inlets in Cuba and Puerto Rico.
So it was hard for the larger US Navy vessels to, to reach them. And they were well within Spanish territory at that point. At this point Spain was not terribly helpful. So Congress considered at this point and rejected two proposals. The first was in 1822 and was almost certainly. Raised by somebody from within Monroe’s cabinet, although we don’t know for sure.
And it was the House Committee on Naval Affairs and it considered whether one, it would be expedient, quote, to authorize the destruction of persons and vessels found at sea or in uninhabited places making war upon the commerce of the United States without any regular commission. Does that sound familiar?
It also considered number two, whether it would be inconsistent with public law or general usage to give any authority to destroy pirates and piratical vessels found at sea or in uninhabited places. So obviously the assumption is that you don’t just destroy pirates and piratical vessels. The question is whether you can authorize it and that wouldn’t violate public law or general usage.
What counts as general usage? Probably they’re talking about the practices of other nations and public law, probably included both the law of Nations and US law, including constitutional law. This is what the committee said. It rejected the proposal and it says that it would be dangerous and productive of great evil to vest in the commanders of our public vessels and authority to treat as pirates and punish without trial.
Even such persons as described above. It is not necessary for the accomplishment of the object in view that such an authority should be given, and it is essentially due to the rights of all and the principles of public law and general usage that they were quoting the request there. Public law and general usage, it is essentially due to the rights of all, that the consequences and punishment of piracy should follow only illegal adjudication of the fact.
It’s pretty ambiguous to some extent, but I think the request and the denial both established that the president lacked power to initiate even limited hostilities against non-state groups without congressional approval. The second episode was in 1825. By this point, Monroe is getting pretty desperate.
He asked the authority to order his captains to pursue the pirates to the settled, as well as the unsettled parts of the island to engage in reprisals on the property of the inhabitants that is to the Spanish settlers in Cuba and Puerto Rico, and to blockade the ports. These would’ve been acts of war, not necessarily full war, but acts of war against Spain.
Congress again declined. Instead. It authorized the purchase of more vessels, including smaller vessels that might be able to wiggle up to, into the inlets and streams, right? So twice Congress denies the president this power. The president doesn’t ignore it, the president complies. The rest of the story is this, apparently Monroe asking for this power got Spain’s attention.
Because not long afterwards, Spain decided to play ball. And in a joint operation, the US Navy and Spain attacked the biggest pirate hideout, in Puerto Rico, it was a stronghold. They, they took a bunch of captives. The Americans turned all of the captives over to Spain. Spain did not try them.
According to the common law, Spain court-martialled them, shot them, dismembered them, and sent the remains to each of the ports in Puerto Rico and Cuba. That was pretty much the end of the Pirates of the Caribbean. So that also obviously shows a bit of a contrast between the way the US was handling pirates and the way Spain was willing to handle pirates in the same era.
The reason is the Constitution. So under the founder’s law, in conclusion that of this section, the boat strikes would’ve been unconstitutional. The smuggling. Is a criminal act akin to piracy. And the president could have seized the ships in their crews, but he would’ve had to bring them to a federal court for criminal trial and interim proceedings if they resisted arrest.
Of course, the military could have used force and self-defense, and the military did a bunch with pirates, right? The pirates were fighting back. The military would treat them accordingly. But they captured a lot of them and they didn’t just hang them from the main yard. Like the sort of rhetoric of them being enemies of all mankind might suggest but without a state of war or congressional authorization for limited warfare neither of which apply here, the president could not have lawfully ordered the attacks.
I wanna say just a few things about what I think the difference between their law and our law suggests about our constitutionalism. The first is why is our law different than it used to be? I don’t wanna belabor this point, and we can talk a lot more about it in the Q&A. But we’ve, the geopolitical changes in the last 200 years have been obviously quite massive.
The United States now is the sole superpower, or, was for many years. And it, the technology of war has changed to make it possible for almost anyone to cause incredible amounts of harm from almost anywhere in the world, like on almost anyone in the world. That’s not just nuclear capabilities, but it’s digital, it’s space, whatever.
And it’s not just organized states under the sort of traditional law of nations. It’s less organized, quasi criminal organizations. So we’re all, this is the world we all live in, we’re all familiar with it. I think it. We start with a pretty bare bones textual and structural division of powers over the power to wage war.
And over time the executive has run with more power. Congress has largely permitted it, and the courts have increasingly stayed out of the way. I don’t think that those changes are good news really for living constitutionalists who don’t want a strong president or at least a strong president that isn’t of their party.
Nor do I think it’s good news for originalists who pine for congressional supremacy, the good old days. I think it’s, almost. It’s not almost unthinkable, but eh, it’s pretty much unthinkable that we would actually go back to what it was before. Although I do think it’s striking how many originalists seem to embrace presidential supremacy over warfare when the historical evidence is, seems to me, to be pretty strong in favor of congressional supremacy.
Changes to constitutionalism really briefly, like the sort of big move among originalists these days is to focus on what they describe as original law. And this is the version of originalism that is most attractive to me. Don’t focus just on the public meaning of the text at the time, but look at what was their law.
And our law is whatever their law was, plus any authorized changes. I think that the law of war and the law of international affairs at the founding. Like some other areas of law, this makes it a difficult thing to expect courts and officials to adopt wholesale. And that’s because their law really was an integrated sort of metaphysically different kind of set of concepts and arguments that included the law of nature, the law of nations, neither of which are accepted as sources of authority.
In American constitutionalism today. It is, they’re not only, are they not accepted as sources of authority, they’re usually not accepted as existing. So getting from there to here would require something other than just replacing a handful of judges with originalists. It would require, I think, a sea change in the way American lawyers and judges think about constitutionalism and constitutional law, ideally one that was, in some respect, consented to by the people. Finally I want to conclude with some thoughts about the boat strikes. Even though I think that the analysis of the contemporary doctrine I’ve given is plausible and would probably be offered by many executive lawyers of either party in light of modern executive practice, I have to admit, I have pretty serious reservations about the administration’s designation of the drug smugglers as unlawful enemy combatants.
And here I’m at a huge disadvantage, just as I assume all of you are. We’ve only seen the videos of the attacks, right? Some of them are especially chilling. But we don’t have access to all of the intelligence. What we have seen though, over the past 20 or 30 years suggests that narco terrorists are probably better understood as organized crime.
Organization, organized criminals, right? The US has been involved in a metaphorical war on drugs my entire life. During that time, the Coast Guard has captured many drug smugglers on the high seas who have then been tried for their crimes. Nothing about what we’re seeing now so far in the public suggests that these are in any different situation.
The cartels are, don’t appear to be trying to destabilize the United States or to destroy it or replace its government. They don’t appear to have political goals like most pirates and black markets smugglers before them, right? They’re out for money. If that’s true, then the president’s decision to treat them as belligerence is troubling, right?
It’s a small step from here to labeling any violent organization as unlawful enemy combatants, at least as long as it would be difficult to bring them to heal with ordinary law enforcement. I would like to think that popular pressure, congressional control and judicial review would prevent the use, even the limited use of war powers within the United States.
Outside of a genuine insurrection, combating terrorism already requires that the government blur the traditional lines between criminal and enemy. And extending the label of enemy combatant to garden variety criminals would blur matters even more, further eroding the traditional protections of law.
Thank you very much for your attention, and I’m really delighted to answer any questions you may have,
Thank you for your information. Given the seriousness of anything dealing with a declaration of war, is it naive to think that a Supreme Court would not be politically motivated in reaching a decision?
I wanna make sure I understand the question. If there’s a declaration of war, or do you mean would the Supreme Court be politically motivated and weighing in on, whether weighing in on the activities, whether these targets are actually unlawful combatants. Yeah. I think that is the key legal question.
And I think that if in a case within the court’s jurisdiction some members of the court would want to, and some members of the court probably would not. And I don’t think that necessarily tracks the, it depends on who the president in power happens to be at the time. I think the justices have different sensibilities about executive power and the court’s responsibilities step in historically, even though these things ebb and flow and, each justice is different.
Historically, the court has tended to be a little bit more interventionist in cases within their jurisdiction as the longer that hostilities go on. So you saw this a little bit even during COVID. The court was not as inclined, or at least a lot of the members of the court were not as inclined to intervene early in what it perceived to be an emergency that was best handled by elected officials who had more information with respect to individual rights.
They began to intervene a little bit more. A similar pattern is pretty clear in a lot of, a lot of emergency situations, especially war. I don’t know if that fully answers your question, but Yeah. This was really great. Thank you. I have a question about pretext with reference to the first category you were talking about, which is current law.
In its initial legal justifications, the Trump administration pointed to the role of fentanyl in the devastation in the United States. Claims that were quickly contradicted by experts who talked about the boats, first of all, carrying cocaine, and second, primarily going to Europe, not the United States.
The Trump administration seems to have moved away from some of those arguments, but I’m curious if you talk about the role of potentially pretextual arguments, motivating that, and what should we make of the fact that narco experts in this particular field really disagree with the claims of the Trump administration, at least initially in justifying these strikes?
Yeah. Could everybody hear him? I don’t know if that, okay. So I, I don’t know that. Any of that is constitutionally salient for determining whether the president has the authority to make the judgment. I think it’s salient for if a, if we’re gonna review whether the, like what judgment the president has actually made.
Again, a review of that would depend on looking at the evidence that the president is basing his judgment on. And sometimes presidents will make the legal opinions publicly available. So this is what happened during the Obama administration with respect to the strike on Alo Locke, the US citizen who was in Yemen.
And that was in part I think because the president had publicly already said that citizens are entitled to do process even from a strike. And so they were trying to, I think, explain to the public and show that they’ve done some amount of dotting their i’s and crossing their t’s. The President has not made any of these available.
We’re dealing with snippets from, at least from what I’ve read, we’re dealing with snippets of what appears to be an Office of Legal Counsel opinion that was written I think in mid-October. I may be getting the dates wrong, which is about a month and a half after the strike started.
And so it’s, is it possible they’ve completely changed their justification or they drummed up a justification post hoc? I would say that’s very possible. I don’t think it’s necessarily salient with respect to whatever judicial review would be of the situation.
Thank you for the talk. Yeah. You were mentioning you might go into more detail on the specific cases that motivated the transition of authority from congress. To the president for these sort of declarations of war or just strikes that might otherwise be interpreted as war? Sure. I can’t go into too much detail just ’cause there are a lot of them and I don’t. I’m not an expert in all of them, but the main thing that precipitated this change, I think is modern practice beginning in the early 20th century.
And you just have a pattern of the president using forces to initiate hostilities of a typically of unlimited nature, although not always. We engaged in regime change in Haiti beginning in 1915 and the Marines were there until about 1936 running the country, which sounds not all that unfamiliar given our current context.
And that’s why I started with that date beginning then there’s a really strong pattern of this, and it didn’t really, Congress didn’t generally object to it until the Vietnam, after the Vietnam War. And when they enacted the War Powers Act over President Nixon’s veto and that the combination of Congress not objecting and continuing to fund most of these operations has led to a kind of strong argument of acquiescence that at least with respect to limited hostilities, that the president has the authority to do this.
Thank you. You’re welcome.
Hi. I don’t know who was next. I’m sorry. Okay. We’ll go over here. The founders apparently thought that there should be some division of power between the executive and the legislator in matters of warfare. Over time, over two centuries, that has become less and less relevant to the way things actually happen.
Number one, what do you make of that of Congress’s continuing abdication of their responsibilities in deference to the executive on matters of warfare? And related to that, can you envision any circumstance in the future in which they might actually declare war? So I think the thing, the, a couple of things have led Congress to do this.
One is, are the sort of geopolitical and technological developments that. Briefly sketched out to where both of those together have also led to the President being allowed to operate in a little bit more secrecy with respect to a lot of these things. And so there’s a fair number of things that happened that Congress Pro, some members of Congress may know about.
But the public does not. Coupled with all of those changes though is partisanship. And so as the parties have become more polarized, if Congress is held by the same party as the President, they’re less likely to take steps to intervene with whatever the president is doing for all the reasons we’re familiar with.
Together those two things have, I think, led to this kind of pattern, which suggests that if things were going to change, you’d have to see a change in at least one. And probably both of those things. And I don’t see either of those. They’re not on my Bingo card for the next 10 or 15 years.
With Res, or I say 10 or 15 years, the next 75 years, I would say with respect to declaring war, I would only note at the founding, I don’t, my view, and historians have argued about this I, my view of the evidence suggests that Congress didn’t have to declare war in order for the President to have the authority to exercise war powers, Congress just had to authorize the exercise of those powers and it could do so up, up to and including a full war.
And declaration was a formal solemn-, solemnization of the fact that we were in a state of war already, but it was the state of war itself, whether declared or not, that was most meaningful as a legal and constitutional matter. Can you see Congress doing that? I think that if a nation declared war on us with a formal attack like Pearl Harbor, then Congress would respond by declaring war.
Sure. Obviously most of our warfare these days is against nonstate entities or against states that are not in any position to engage in a full war against the United States. And so there’s no need for a full formal war.
Okay. Yep. So first of all, thank you very much for your talk, making the trip and having such a well thought out discussion. Thank you. My question really relates to most of the examples you cited are for maritime type of activities. Yeah. But yet the current administration’s also making rumblings about unchecked war on drugs in Mexico, which would say it would be a land type of an incursion. Yeah. How would you analyze that with respect to your current analysis?
So a lot of my examples of the founding were maritime. I think maybe all the ones I used at the founding are maritime, although in a lot of those cases law enforcement actually required that they were all military officers to go onto foreign soil to execute the law.
The vast majority, maybe all of the examples I gave from the 20th century of the president engaging in limited hostilities abroad were within other nations territories. So that, that long litany of conflicts I stated, those are all within other sovereign territory. So if that’s the principle basis for the president’s current power it seems to include the hostilities within sovereign territory.
Hi. So you’ve talked a bit about one of the major differences between the founding and today being the size of the standing army. So today the president has a trillion dollar military to do things with. Just. Thinking, I don’t actually know anything here, but at the founding, the power to raise and support armies would be a much more serious constraint there.
So could you talk a bit about the examples you provided of the executives seeking congressional authorization and to what extent they overlapped with requests for resources or essentially the tools the president would need to carry out those operations? Sure. So I, I can I’ll speak generally to it.
Generally you’re right that I think Congress had a lot more leverage when we didn’t have a standing army and a large Navy. And the president often did have to ask for more resources, and if Congress denied them, that was, obviously he couldn’t use them. But there were times when the president.
Asked for authority, like I, the last example I gave in Puerto Rico, for authority to use the military that he already had in ways that went beyond what Congress had authorized. And Congress responded by declining that request, but instead providing more resources. And for a long time, and this is a big part of the, sort of the change with the doctrine, is that the president has interpreted Congress generally appropriating funds for the military as authorizing limited hostilities with the use of those funds unless Congress specifically excludes it.
Which puts the, flips the default, the founding, the default was Congress had to authorize it. Now the default appears to be Congress has to say no. And. Congress can only say no typically after hostilities have already begun, which gives the pres and after hostilities begin, it’s, it’s much more precarious to tell the president to stop rather than finishing the job.
And so all of these are reasons why the president’s accumulation of this power has grown over years. Thank you. Yep.
Thanks very much for the remarks. I’m just a simple international lawyer here at the law school, and I’m curious about your concluding remarks with respect to the framing or the definition of who qualifies as a combatant, who would be subject to that kind of status.
And I guess what it was not entirely clear to me is whether you thought. Either the Congress or the President was entirely free to define a combatant in such, in whatever way it wants. When I look at the record, it seems to me that both Congress and the Executive Branch have been actually applying the law of war in trying to make that determination rather than coming up with de novo determinations about whether we’re gonna treat somebody as enemy combatant.
These have been contested. But there has been an invocation of international law principles, which I think limits what both the executive branch and the Congress historically have thought is their capacity to, again, put somebody in that, in, in that capacity where they’re subject to treatment as an enemy rather than somebody subject to law enforcement jurisdiction.
I misunderstand, were you suggesting that there was a just. Congress and the executive branch could use any standards that it wanted. Am I wrong that we’ve been focusing on really trying to apply international law norms? As we say in, in Georgia, I’m just a simple country lawyer. So it’s very possible.
You, you understand that dynamic better than I do. My reading the administration hasn’t said a whole lot about what the OLC memo says to justify these strikes, but it has said that they’re designated as unlawful enemy combatants. And I assume that the administration is trying to draw on the language from the Military Commissions Act, which was trying to distinguish the combatants in the war on terror from enemies under the Geneva Convention as such that they wouldn’t be entitled to the rights under the Geneva Convention and ordinary combatants.
So that’s how I, that’s how I interpret what the administration’s trying to do. And that move, which was very controversial at the time and is debatable, the international lawyers don’t like it at all. One result of that move is that there’s no, as I understand it, set standard or definition of who counts as an unlawful enemy combatant.
And if that’s the case, then the important question is who gets to decide?
Our time is is now up. And I’d like please join me in thanking Nathan for a stimulating, informative talk.