The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference
University of Virginia - School of Law
October 10, 2013
82 Fordham L. Rev. 828 (2013)
Virginia Public Law and Legal Theory Research Paper No. 2013-41
The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong. This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play a significant role in shaping executive branch security policies. Call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them. In the national security context, the executive is highly sensitive to looming judicial oversight in the national security arena, and establishes or alters policies in an effort to avert direct judicial involvement. By identifying and analyzing the observer effect, this Article provides a more accurate positive account of national security deference, without which reasoned normative judgments cannot be made. This Article makes another contribution to the literature as well. By illustrating how the uncertain, but lurking, threat of judicial decisions spurs increasingly rights protective policy decisions by the executive, it poses a rejoinder to those who are skeptical that law constrains the executive.
Number of Pages in PDF File: 73
Keywords: National security, Judicial deference, Executive branch, Terrorism, September 11Accepted Paper Series
Date posted: October 11, 2013 ; Last revised: November 5, 2013
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