National Security and the Article II Shell Game

This essay considers the important but under-explored link between politics and constitutional interpretation in the realm of national security. The school of constitutional interpretation at which it looks is “presidential exclusivity,” which has gone from relative obscurity to prominence in the political branches and in public debate over the past several decades. Exclusivists deem the President to have substantial discretion under Article II of the Constitution to override statutory limits that he believes interfere with his ability to protect national security. The first question that this essay takes up is why exclusivity has come so far over the past several decades in the political branches and why it has demonstrated appeal and staying power across parties. It concludes that exclusivity by and large is consistent with the post – World War II political incentives of legislators and Presidents alike, enabling them to associate themselves with the iconic image of a tough President and to situate their allegiance to that image in a larger narrative of keeping faith with the rule of law. The second question that this essay considers is how exclusivity manifests itself in the political branches. In this respect, the essay explains, among other things, that the combined effect of exclusivity’s many active and passive uses is that of an elaborate shell game. In this “Article II shell game,” accountability is the palmed object and potential accountability mechanisms are the shells. If the game is well played, the public will often be told that accountability does not lie under one shell for exclusivist reasons, but that it may lie under the next shell, only for the process to repeat ad infinitum