forthcoming scholarship

* forthcoming scholarship

“The Atomic Midwife: The Eisenhower Administration’s Continuity-of-Government Plans and the Legacy of ‘Constitutional Dictatorship’”

Rutgers Law Review, Forthcoming

MATTHEW L. CONATY, affiliation not provided to SSRN
Email: conaty

The story of the Eisenhower Administration’s continuity plans for post-atomic governmental survival provides a unique perspective on the authority of the nation’s chief executive in a crisis. Within the pertinent historical context, this article reconstructs them from the memoranda, sample proclamations, and recovery and defense approaches drafted by Eisenhower’s cabinet, and details contemporary legal responses to the broad executive powers they assume. It then contemplates the prospects of Congressional or judicial resistance using modern constitutional theory, should a similar change in executive authority be effectuated in response to a latter-day national disaster. The conclusion is grim: presidential employment of the military under a defensive war theory coupled with ingenerate limitations on the legislature and the courts foreclose effective resistance to a “constitutional dictatorship.”

Part I of this paper sketches the historical background of this tumultuous period in U.S. history, including the American commitment to contain the spread of communism at all costs, even at the risk of an exchange of atomic weapons. Part II elucidates the Eisenhower Administration’s contingency plans for such an exchange using recently declassified materials from the Eisenhower Presidential Library in Abilene, Kansas – the responses of the President and his Cabinet to the “Operation Alert” series of war planning drills for federal officials, and the actual proclamations and executive orders that would form the basis for the continuation of the federal government. Contemporary legal responses are then examined, both those advocating an expansion of the president’s power beyond planning documents and those advancing definitive limits. Part III employs modern constitutional theory to considers legislative and judicial resistance against an overbroad executive response to a cataclysmic national disaster. Attention is given to potential congressional disputes with the ad hoc investiture of regulatory and peacekeeping authority in executive agencies, the dearth of independent information-gathering channels and criteria to measure the severity and duration of the crisis, the scope of president’s use of the military under cover of defensive operations, and the judiciary’s role in moderating these disputes or refusing to hear them altogether. Part IV advances a series of test questions suitable for examining a constitutionally infirm executive response to a major national crisis, be it an atomic strike or a modern-day terrorist attack.

While a tactical nuclear war never came to pass between the United States and its Soviet adversaries, this paper should not be approached as a discourse on historical hypotheticals. Nor is it merely a digressive tale in an examination of the forces and events that prompted the passage of the Twenty-Sixth Amendment. Instead, it should serve as a simulacrum for the ability of the Executive Branch to proactively claim for itself broad powers in the face of extraordinary circumstances – chaos, on home soil, whatever the form it may take – and the informational and institutional limitations Congress and the courts must grapple with in curbing such a state of emergency.

“False Comfort & Impossible Promises: Uncertainty, Information Overload & the Unitary Executive”

University of Pennsylvania Journal of Constitutional Law, Vol. 12, No. 2, 2010

CYNTHIA R. FARINA, Cornell Law School
Email: CRF7

The movement toward President-centered government is one of the most significant trends in modern American history. This trend has been accelerated by unitary executive theory, which provided constitutional and “good government” justifications for what political scientists have been calling the “personal” or “plebiscitary” presidency.

This essay draws on cognitive, social and political psychology to suggest that the extreme cognitive and psychological demands of modern civic life make us particularly susceptible to a political and constitutional ideology organized around a powerful and beneficent leader who champions our interests in the face of internal obstacles and external threats. The essay goes on to assess the representational and managerial claims of unitary executive theory in light of relevant work in election studies, public administration, and related areas. It concludes that the very conditions that make the personal, unitary executive presidency so appealing also ensure that no President can possibly be the leader it promises.

The essay concludes by considering the post-2008 revisionism that characterizes the George W. Bush presidency as a perversion of unitary executive theory. It points out that the Bush presidency not only was recognizably the kind of presidency contemplated by the theory, but also that the theory’s uncomplicated, unconditional certitude – qualities that make it so effective in responding to the cognitive and psychological stress of modern American life – predispose unitary executive Presidents and their followers to extremism.

The Shadow of State Secrets

Laura Donohue
Georgetown University Law Center

University of Pennsylvania Law Review, Forthcoming
Georgetown Public Law Research Paper No. 10-10

Despite the recent explosion in scholarship focused on state secrets, very little is known about how the privilege actually works. This article fills the lacuna, demonstrating that the shadow of state secrets casts itself longer than previously acknowledged. The 2001-2009 period proves illuminating. The article begins with disputes related to government contractors, where breach of contract, patent disputes, trade secrets, fraud, and employment termination cases emerged, proving remarkable in their frequency, length, and range of technologies. Wrongful death, personal injury, and negligence extended beyond product liability to include infrastructure and services, as well as conduct of war. Empirical research suggests a conservative executive branch, more likely to intervene when breach of contract, trade secrets, or patent disputes present themselves, and unlikely – once it asserts the privilege – to back down. Critically, the expansion of the military-industrial complex appears to be giving birth to a new form of “greymail”: companies embedded in the state may threaten to air legally- or politically-damaging information should the government refuse to support their state secrets claim. The government also may depend on a corporation for a key aspect of national defense – thus creating an incentive to protect the company from financial penalties associated with bad behavior. The article next turns to the telecommunications cases that arose out of the NSA’s warrantless wiretapping program. In excess of fifty such suits emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. Although many of these cases ultimately turned on amendments to the Foreign Intelligence Surveillance Act, state secrets assertions grounded on a closely held executive branch jurisprudence played a key role throughout. Following this, the article looks at disputes where the government defended both the suit and state secrets assertions. These cases stem from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation. As in the corporate cases and the telecommunications suits, the executive does not change its course once it asserts the privilege. State secrets also played a role in the criminal context. Remarkably, in two cases, the executive did not even need to assert the privilege; instead, the court simply read it into the case. Collectively, these cases underscore the importance of looking more carefully at how the doctrine works. They challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors. It also has become intimately connected to the military-industrial complex, undermining contractual obligations and perverting tort law, creating a form of private indemnity for government contractors in a broad range of areas. Patent law, contracts, trade secrets, employment law, environmental law, and other substantive legal areas have similarly been affected, even as the executive branch has gained significant and unanticipated advantages over opponents in the course of litigation.

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