*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"
by Shirin Sinnar, Associate Professor of Law, Stanford Law School
The Trump presidency has put into sharp relief fundamental constitutional questions about national security and the role of courts. In the travel ban cases, for instance, courts question the degree of deference they owe the executive’s national security assertions where there is unprecedented evidence of discriminatory animus. Significant as such questions are, the current political moment also invites us to reflect on a deeper question: how we conceptualize the very notion of “national security” in the face of official policies and rhetoric that subject certain communities within the nation to radical insecurity.
In and out of court, “national security” is invoked prolifically with the assumption that its scope is self-evident and its importance unparalleled. “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the nation,” the Supreme Court proclaimed in Haig v. Agee in 1981. In the last Supreme Court argument of the Obama presidency, the Justice Department asked the Court to preclude a damages remedy for constitutional violations by federal officials arising at the intersection of immigration and national security policy. In so doing, administration officials again postulated the coherence of the “national security” category and the appropriateness of insulating certain constitutional violations within it from judicial review.
The term “national security” seems to invoke some set of implicit associations: perhaps the idea that state sovereignty or the preservation of governmental institutions is threatened; perhaps the notion that a threat implicates foreign relations; perhaps the idea that an issue involves especially high stakes, even of an existential nature. In political and legal speech, the connection between any particular issue and these ideas is often implied but rarely defended.