Can Congress secretly pass a bill Supposed some Congress members thought it would be necessary to pass a bill without telling the public about national security. For example, if a war broke out and Congress wanted to allocate money to a secret cause, could they enter a closed session and pass a bill, send it to the President, and become law without telling the public? First, is this even possible/legal? Are there any instances of this happening (and later being revealed to the public)?
Congress did exactly this in the war of 1812. Normally, laws passed by Congress must be published after being made. In 1789, the First Congress instructed the Secretary of State with the duty of printing new statutes at least three newspapers, and the current law puts it in the hands of the Archivist of the United States; in between, there have been variations. On March 3, 1811, Congress passed a law saying simply: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this act, and the act passed during the present session of Congress, entitled “An act to enable the President of the United States, under certain contingencies, to take possession of the country lying east of the river Perdido, and south of the state of Georgia and the Mississippi territory, and for other purposes,” and the declaration accompanying the same, be not printed or published, until the end of the next session of Congress, unless directed by the President of the United States, any law or usage to the contrary notwithstanding. This overrode the normal publication rules in order to hide the existence of the cited earlier law, and of its own existence. The proceedings in Congress also took place in secret session, including the signing of the bills by the President, James Madison. As the title suggests, the earlier statute authorized Madison to use military force to take possession of the disputed territory (which was also claimed by Spain), establish a provisional government there, and use $100k of newly appropriated funds to do so. A further law of 1813, with the same secrecy provision, extended the territory and gave $20k more. These statutes were not published until 1818, after the war had ended and a further law reformed the publication of statute law in general. The supposed secrecy was also compromised in practice by the fact that the annexation of West Florida was widely known once it started happening. As far as we know, Congress has not experimented any further with suspending publication of its legislative activity. It is allowed to meet in secret session, and the Constitution allows secret material to be omitted from the official journal. Nowadays, we know pretty well when secret sessions have taken place, even if we don't know what happened during them. It would be practically very hard for Congress to hide the fact that it had met and passed a law. The closest modern counterpart is not a secret act, but the use of a &quot;classified schedule of authorizations&quot; or &quot;classified annex&quot; to direct spending on things that Congress does not wish to reveal. For example, in the Consolidated Appropriations Act, 2022 (1068 page PDF), there are references like: &quot;there is appropriated $125,000,000, for an additional amount for 'National Defense Stockpile Transaction Fund', to remain available until September 30, 2024, which shall only be used for the acquisition and retention of certain materials, as specified in the classified annex accompanying this Act&quot; &quot;The amounts authorized to be appropriated under section 101 for the conduct of the intelligence activities of the elements listed in paragraphs (1) through (17) of section 101, are those specified in the classified Schedule of Authorizations prepared to accompany this division.&quot; The second bullet point covers billions of dollars of total spending, but it is not revealed that we are spending $7.18bn on a project to explode the moon, or whatever. So in this appropriations case, your hypothetical is pretty real: Congress could pass emergency legislation authorizing spending on something, without revealing what the something was. Other kinds of laws would raise their own issues. For example, a secret criminal statute would very likely fall foul of the Constitutional prohibition on ex post facto laws. The concept of a secret law is in many ways objectionable - natural justice, interference with democratic accountability, etc. - which makes it politically difficult as well as legally questionable.
Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water.
So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say &quot;Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons.
The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate.
"Law" is actually a very broad term, which encompasses statutes, rules, regulations, precedent and I'm sure some other things that I'm forgetting. The popular understanding of "law" is the statute, which involves Congress (at the federal level) or the legislature (and the state level). That is the kind of law that we say is "passed". At the federal level, some number of representatives or senators will introduce a bill into the House or Senate, and it is discussed in a relevant committee; if it is approved, it moves to debate by the whole House / Senate and if it passes it moves to the other house. Once it has passed both the House and Senate, it goes to the President where it may be signed, rejected, or ignored. If signed, it becomes "a law", if rejected (vetoed) it can become law anyhow if it gains a 2/3 majority vote in both houses. If the President ignores it ("pocket veto"), it becomes law in 10 days (Sunday is not a day), unless Congress is not in session. Oh, and, that's just the tip of the iceberg. At the state level, there is a similar process, with the further option of referenda and initiatives. In the former case, a particular law will have been passed by the legislature and then it is put to a popular vote for affirmation / overturning, and in the latter case a new law is proposed by the people (generally through a petitioning process) and then voted on by the populace. There is a fair amount of variation on how this works and what can be done, by state. A law can be repealed (withdrawn) by passing a law that repeals a given part of the existing law, and it can be re-written. The Supreme Court of the jurisdiction can also withdraw a (part of a) law if it is found to be unconstitutional. No foreign body can override US law, although if the US is bound by treaty (which necessarily involves another country) then we might have to do whatever that treaty says, because we approved the treaty. One limit on what we can be forced into by treaties is that a treaty cannot violate the constitution. The largest source of law in the US is actually not statutory, it is regulatory law, where a regulatory agency writes rules with the force of law (so really, it is law). In that case, there has to be a statutory basis, where at the federal level a law is passed empowering an agency to write rules, where the scope of the regulation is supposed to be related to the empowering statute in some manner. In that case, there is a vetting process, but basically no voting, just an announcement, some discussion, and eventually the rules are set. Analogous processes exist at the state level. We also have various county and city governmental bodies, where e.g. the city council can vote to create a law; or, they can empower an agency to write regulations. Yet another source of law is the Executive Order, where the president can decree that such and such will be the case (as long as it has something to do with what the executive branch does). These are somewhat limited in scope, but every president seems to like to test what that limit is. Governors get to do it too! And lastly, courts have an indirect power to make law, by ruling on how an existing law is to be interpreted (as well as ruling that a law or part of a law is unconstitutional).
Can an idea be a trade secret? Certainly -- most trade secrets are ideas. The thing is, unlike copyright, patents, or trademarks, trade secret isn't a very strong form of protection. Trade secret legislation only protects against certain "unfair" methods of obtaining the secret. Independent invention is perfectly fine: if I figure out on my own what the secret formula for Coca-Cola is, there's nothing the Coca-Cola company can do to stop me. Reverse engineering is also fine: if I take a bottle of Coke to a chemistry lab and analyze the ingredients, there is again nothing the Coca-Cola company can do. Additionally, a company wishing to make something a trade secret needs to take active steps to preserve that secret. Continuing the Coca-Cola example, they might require anyone reading the formula to first sign an agreement to not disclose what they read.
Assuming that the documents were either true, or Manning reasonably believed that they were true, there would be no cause of action for defamation. Many of the documents disclosed would have been confidential in some sense, but usually a violation of a confidentiality statute has a criminal sanction associated with it, but does not carry with it a private cause of action &ndash; in part, because conceptually, the party actually harmed is considered to be the government and not the person about whom information is revealed. It is also possible that Manning could utilize the state secrets privilege as a defense and have such a suit dismissed on the grounds that a full and adequate defense of the claims would require the disclosure of official state secrets. For example, if a covert agent were murdered due to a wrongful disclosure of information, usually official disclosure of the fact of being a covert agent would be required to prove the case, and that evidence would be barred by the state secrets privilege, effectively barring the lawsuit entirely. Constitutional claims of privacy violations under the 4th Amendment generally relate to the wrongful acquisition of information and not its wrongful disclosure. The constitution bars unreasonable search and seizure, not unreasonable disclosure of information. The only privacy tort that might be applicable is "Public disclosure of embarrassing private facts." (A sister privacy tort, Intrusion upon seclusion or solitude, or into privacy affairs, is directed at the collection of data phase and not the dissemination phase). See Restatement of the Law (Second) of Torts, §§ 652B and 652D. But, this tort raises serious First Amendment concerns and has not been widely adopted. Realistically, this tort is unconstitutional in the absence of an affirmative contractual or quasi-contractual duty not to reveal facts that runs to the person making the disclosure, and in general, Manning would not have that kind of relationship. The classic public disclosure of embarrassing private facts case would involve a lawyer's or psychotherapist's revelations about a client. Also, in the case of the public disclosure tort the basis for damages is largely personal emotional distress and violation of trust, as opposed to damage to reputation, per se. The requirement is that the disclosure be embarrassing or breach of contract, not that it harm someone's reputation since you have no legal right to a reputation that differs from the truth.
Yes Impeachment proceedings (as are all activities of Congress) are legal proceedings in that they are enabled by the Constitution. While it is true that they are not judicial proceedings, the activities of the legislature as with the executive (like a police interview) and judiciary (like a trial) are legal processes and the Fifth Amendment rights apply. During the McCarthy “red scare” era, pleading the fifth was commonplace by witnesses to Congressional hearings. However, pleading the fifth does not mean you can avoid testifying. If subpoenaed you would need to turn up and answer the questions, pleading the fifth when the answer could incriminate you in a criminal matter.