Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations
University of Texas School of Law
Wake Forest University Legal Studies Paper No. 931997
[Note: This is a substantially revised version of a draft that previously appeared under the name "Unraveling Deferrence".]
For more than a century, the Supreme Court has maintained that federal judges should give deference to the views of the executive branch with respect to the interpretation of ambiguous language in international instruments. The Court has never adequately explained the theoretical justifications for such deference, however, and the doctrine is plagued with uncertainty and inconsistency as a result. Making matters worse, the Supreme Court's most recent forays into this area - especially Hamdan v. Rumsfeld - have exacerbated this instability. My aim in this article is to explain why the deference doctrine presents one of the most significant, yet least appreciated, problems in foreign-relations law today, as well as to offer a suggestion for solving the puzzle it presents.
Part I frames the discussion that follows by examining the controversial treatment of the deference issue in Hamdan.
Part II provides a thorough descriptive account of the doctrine. This section begins with a review of basic principles of treaty interpretation methodology, emphasizing the use of post-ratification practice as evidence of the understanding of treaty parties. This is followed by a brief recitation of the transformation of U.S. foreign relations law in the early-to-mid 20th century. Against this backdrop, I then trace the evolution of the deference doctrine in the Supreme Court from its late 19th century roots through to the present day. I conclude that the doctrine originally rested at least in part on the evidence-of-intent method of treaty interpretation, but that this aspect of the doctrine became obscured during and after the transformational era. Finally, in response to competing claims that the doctrine is either entirely dispositive or entirely rhetorical in terms of impacting case outcomes, I conclude the descriptive component of the paper by reporting the results of a survey of deference decisions at all levels of the federal judiciary during the Rehnquist era. The results demonstrate that the doctrine does not always result in victory for the executive viewpoint (though it usually does), but they are inconclusive with respect whether the doctrine ever serves as more than a rhetorical gloss on decisions that would have reached the same result in any event.
Part III then examines the normative arguments for and against deference, canvassing the many theoretical models that scholars have advanced in recent years. These models turn in significant part on underlying disagreements concerning the relative priority of competing constitutional values including functional efficiency and checking of power. I conclude with a proposal for a hybrid model of deference that attempts to reconcile these interests by, among other things, distinguishing between true deference and the mere use of post-ratification practice as proof of intent.
Number of Pages in PDF File: 60
Keywords: deference, treaty interpretationAccepted Paper Series
Date posted: September 22, 2006
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