Gavin Small
This Note explores two overlapping challenges in the United States constitutional and political system. First, the United States increasingly relies on private companies for technologies necessary for national defense. This has given outsized power to a few unelected corporations and people who might have their own incentives that misalign with those of the United States. This is particularly dangerous in an emergency situation where the United States government, not a private company with its own interests, should be making decisions regarding national security. As an example, this Note focuses on the massive role that the company SpaceX plays in the increasingly important national security domain of space and its tendency to have its own agenda as exemplified by its actions in Ukraine.
Second, the executive branch is the best equipped branch to handle a potential emergency threat that comes from a powerful private company that controls national security technology. However, there is a constitutional tension between the needs of expanding the president’s power to act in an emergency and maintaining a constitutional separation of powers that prevents the president from turning into a dictator and abusing emergency powers to trample on individual rights. With an eye to both history and current events, this Note addresses the constitutional tension by suggesting Congress expand the president’s emergency powers with careful statutory language to limit the scope of these emergency powers.
Specifically, this Note proposes that Congress add statutory language to the existing International Emergency Economic Powers Act (IEEPA). This proposal presents a solution to how Congress should plan for the specific yet dangerous situation when a private company with critical technology threatens the national security of the country. The proposed language aims to authorize the president to act against a rogue private company for the interest of national security, while placing tight limits on this authorization.
