Rethinking Foreign Affairs Deference
61 Pages Posted: 5 Jan 2022
Date Written: January 3, 2022
Abstract
How should courts handle cases that implicate foreign relations or national security? What weight should be given to the executive branch’s view of the law in these matters? To date, one can identify in the jurisprudence of the Supreme Court no less than four theoretical approaches—vary by the degree of judicial deference due to the executive—that suggest competing visions about the constitutional role of courts in these areas. Each approach emphasizes different constitutional values when defining the relationship between the judiciary and the executive while explicitly or implicitly risking others. Correspondingly, each has been met with fierce criticism for either abdicating the constitutional duty of the courts or risking obstructing the nation’s pursuit of its security and foreign policy objectives. Moreover, absent a clear principle guiding when any particular approach should prevail, courts invoke these approaches intermittently, generating considerable confusion among litigants and policymakers. The longstanding splintering within the Supreme Court about the proper role of the judiciary in foreign affairs suggests that current doctrine is missing a framework for mediating—and mitigating—the tensions between the four approaches: a doctrinal tool for a judicial risk management.
This article seeks to fill that gap. It draws from the concept of “the Margin of Appreciation (MoA)”, a widely used doctrine by foreign and international courts, especially in Europe, for calibrating the level of deference owed to the principal decisionmaker in a variety of separation of powers and human rights issues. In comparison to parallel doctrines traditionally applied by U.S. courts, the MoA offers a more sophisticated way for dealing with deference claims by the executive. The doctrine provides courts criteria for optimizing the mode of their review while at the same time disciplining judicial decision-making and reducing the costs of judicial errors in matters of paramount national importance. In Europe, the doctrine has been developed mostly as an international law canon, but its underlying rationale equally applies to the problems arising in foreign relations and national security law. This article reconstructs the MoA as a domestic law doctrine. It makes the necessary adaptations for ‘domesticating’ the MoA and develops criteria for considering deference claims in a variety of foreign affairs and national security matters. In doing so, it shows how a domestic margin of appreciation approach can generate more nuanced judicial engagement with foreign affairs, encourage deliberative decision-making by policymakers, and promote inter-branch dialogue about the role of legal institutions in the high-stakes areas of foreign affairs and national security.
Keywords: foreign relations law, national security law, separation of powers, judicial deference, judicial review, margin of appreciation, constitutional theory, treaty interpretation, executive power
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