This Note will argue that federal courts need to be more “disciplined” in their deference determinations in order to effectively check the Executive’s power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to flesh out the historical understanding of deference determinations. These cases will demonstrate that the Supreme Court has not historically hesitated to fulfill its duty to “say what the law is,” even in cases regarding questions of national security. Part III advances to the post-9/11 era and shows that during more recent years, lower courts have conferred an unnecessarily high level of deference to the Executive in cases involving national security issues. After this background, Part IV will make a case for an expanded role for the courts in hearing and reviewing questions involving national security questions and more limited deference to the Executive on these matters. It will argue that this should be accomplished through the application of three principles: (1) a more formal approach to the judiciary’s role in foreign affairs; (2) a willingness to apply international law; and (3) a narrow approach to the issues of the case in order to avoid judicial policymaking. Finally, Part V will analyze two recent cases, Bahlul v. United States and Ali Jaber v. United States, in light of these principles in order to illustrate the benefits that such an approach would have.
Dominic X. Barceleau,
Disciplining Deference: Strengthening the Role of the Federal Courts in the National Security Realm,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol93/iss2/9