Hamdan V. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch

Abstract:     
The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference.

In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. If followed in the future, the Hamdan Court's refusal to give deference to the executive branch and to require a congressional clear statement prior to any executive action will further disrupt the traditional system of political cooperation between Congress and the President in the conduct of wars. It will raise the transaction costs for policymaking in wartime without any significant benefit and potentially at large cost. Congress's recent enactment of the Military Commission Act of 2006 may be understood as an attempt to prevent future courts from applying Hamdan's new clear statement rule by strictly limiting judicial review of executive wartime decisions.

Keywords: customary international law, law of war, statutory interpretation, treaties

JEL Classifications: K10, K33

Accepted Paper Series