Reliance on Executive Constitutional Interpretation

Abstract

Federal executive officials routinely authorize government personnel to violate otherwise applicable laws based on contestable constitutional interpretations. This practice raises an important and unresolved question, one that arose in connection with George W. Bush Administration interrogation practices and could easily arise again: What legal effect, if any, should internal executive guidance on constitutional questions have in subsequent civil or criminal litigation against officials who relied on it?

This article offers a needed systematic analysis of this question. Building on existing case law in related areas, it argues that any sound reliance defense in this area must balance three competing constitutional considerations: (1) a fairness principle, reflecting the intuitive unfairness of penalizing officials who relied in good faith on internally authoritative legal guidance; (2) an anti-suspending principle, reflecting separation-of-powers limitations on the executive branch’s authority to eliminate or disregard applicable statutory constraints; and (3) a departmentalism principle, reflecting the longstanding assumption that the executive branch holds at least some authority to interpret the Constitution independently from courts in performing executive functions. Contrary to past accounts, which have tended to argue categorically against or in favor of a general reliance defense, properly balancing these competing considerations should yield a set of calibrated defenses that vary according to the nature of the executive determination and the character of the litigation.

Keywords: reliance, separation of powers, executive, office of legal counsel, justice department, due process