Document Type

Article

Abstract

This Article examines the legal foundation and policy implications of the President’s power to designate terrorist organizations. These administrative actions carry severe repercussions because of the criminal prohibition on knowingly providing material support to the designated entities, codified at 18 U.S.C. § 2339B. Due to the overlap of the President’s Commander-in-Chief power to block enemy assets and specific Congressional authorization of such actions, the designations themselves appear to be immune from constitutional challenges. It is the addition of concomitant criminal sanctions, however, that drastically expands the potency of the designations and turns them into an effective national security tool. This Article argues that the resulting mixture exposes the regime to attack on First and Fifth Amendment grounds. That is, though the designation and material support criminalization elements are each individually legitimate, their combination poses a constitutional issue distinct from that resolved in Scales v. United States and other precedents currently seen as controlling.

Date of Authorship for this Version

September 2008