Defending Deference: A Response to Professors Epstein and Wells

Abstract

In this article, Professor Pushaw responds to recent scholarship by Lee Epstein and Christina Wells. Epstein and Wells each wrote 2004 law review articles regarding judicial review in times of international crisis. Although they apply different methodologies, Professors Epstein and Wells agree on two key points.

The first is that the Supreme Court tends to sacrifice constitutional rights and liberties during emergencies, particularly war. Epstein supports this conclusion through an empirical analysis of cases over the past sixty years. Wells offers a psychological explanation for this neglect of individual rights: Federal courts blindly defer to the President, even though he engages in “skewed risk assessment” by overestimating threats to national security (e.g., sabotage and espionage) and undervaluing liberty interests (e.g., due process and freedom of expression).

The second shared proposition is that the executive should be held more accountable. Professor Epstein suggests that Congress is the only institution that realistically can perform this task. Professor Wells recognizes this potential legislative check, but doubts its efficacy because members of Congress are prone to the same warped risk assessment and political pressure as the executive branch. Hence, she recommends the additional safeguard of federal courts applying a “hard look” review that requires the President to account for his response to perceived security risks by setting forth a reasoned justification for his actions.

Professor Pushaw concludes that Epstein’s and Well’s arguments are all perfectly reasonable. Pushaw finds Professor Epstein's arguments in particular to be persuasive. Her rigorous empirical study establishes that the Court usually under-protects constitutional rights and yields to the President during wartime. Moreover, Epstein's observation that Congress is best suited to check executive excesses comports with constitutional theory. In short, Pushaw has no major criticisms of her paper.

Professor Pushaw finds Wells’ ideas as more susceptible to challenge, primarily because they are so novel. No one else has identified “skewed risk assessment” as the reason for both the President's often unduly draconian policies during wartime and the typical acquiescence of Congress and the judiciary to such actions. While Wells’ thesis is plausible, Pushaw suggests that another explanation is at least equally tenable: The Constitution creates political and institutional structures that lead to strong executive-branch initiative in military affairs and fairly circumscribed judicial review. Those same constitutional considerations, as well as precedent, cast doubt on the viability of Wells’ “hard look” proposal and suggest that the Court will -- and should -- continue its pattern of reviewing with deference wartime claims that the President has violated individual rights.

Keywords: Lee Epstein, Christina Wells, judicial review, constitutional law, presidential power, executive power

JEL Classification: K40