Muscular Procedure: Conditional Deference in the Executive Detention Cases

Abstract:     
Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have refined their institutional role by requiring the executive to reasonably interpret authorizing legislation, properly implement a congressional delegation, and sufficiently coordinate intra-branch deliberations, and by requiring Congress to oversee executive decision-making through clear legislation. These decisions are significant not only for their outcomes, but also for the way they have integrated procedural standards into sensitive areas of law defined by large amounts of deference to coordinate branch expertise. Muscular procedure thus has relevance not only within national security, but the plenary power context more generally, where the judiciary maintains a comparative institutional advantage in resolving procedural questions.

Keywords: civil procedure, national security, immigration law, constitutional law, federal courts

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