Daniel Epstein (St. Thomas University – School of Law; Reichman University – Interdisciplinary Center (IDC) Herzliyah – Harry Radziner School of Law) has posted The Common Defence on SSRN. Here is the abstract:
The Common Defense Clause in Article I, Section 8, Clause 1 of the U.S. Constitution has been largely overlooked in legal scholarship and jurisprudence, overshadowed by the General Welfare Clause. Yet, its historical and textual significance offers a critical lens for understanding the allocation of federal powers, particularly in the context of tariffs, national security, and presidential emergency authority. This Article argues that the Common Defense Clause serves as a constitutional foundation for justifying presidential discretion in foreign affairs and national security, particularly when implementing statutes such as the International Emergency Economic Powers Act (IEEPA). Whatever discretion exists in tariff enforcement, the courts have determined it is not unbounded; it is constrained by congressional authority, statutory limits, and judicial review, as evidenced by recent litigation such as V.O.S. Selections, Inc. v. United States. However, that jurisprudential picture overlooks the significance of applicable constitutional text. This Article introduces the concept of the “common defence” as having constitutional relevance to debates about presidential tariff and foreign affairs-based economic regulatory authority, particularly during emergencies. The Common Defense Clause justifies the delegation of substantial discretion to the President to respond to emergencies. Thus, when Congress establishes an intelligible principle for such a delegation-a textual recognition of collective security threats-presidential discretion is warranted. This model for thinking about foreign affairs delegation resolves objections based upon functional, rather than textual, justifications for this doctrine and maintains the intelligible principle doctrine as compatible with claims of nondelegation doctrine exceptionalism in the foreign affairs context. This Article illuminates the clause’s role in balancing executive flexibility with judicial oversight, offering a framework for evaluating economic actions of the President under the guise of emergency.
Fascinating. Highly recommended.