A Hard Look or a Blind Eye: Administrative Law and Military Deference

82 Pages Posted: 26 Jul 2005

See all articles by Jonathan S. Masur

Jonathan S. Masur

University of Chicago - Law School


The subject of judicial deference to the military in time of war has spawned a rich and variegated literature. The vast majority of these articles have focused upon what one might term legal deference: courts' willingness to construe the military's statutory and constitutional authority broadly while simultaneously narrowing the legal restraints upon its actions. This article adopts a divergent approach, taking as its point of departure the fact that the modern wartime jurisprudence is defined as much by the scrutiny that courts treat apply to the executive's factual assertions as the lenity with which those courts construe the legal limitations of military actors.

This article thus addresses itself to legal deference's often-overlooked cousin: the level of deference courts have applied to the president's and the military's factual determinations during wartime. The article argues that by overemphasizing both the executive's special constitutional role in military affairs and its comparative expertise at evaluating potential dangers to national security, the judiciary has refused to subject the administration's factual predicates to meaningful scrutiny, neither demanding substantial evidence before accepting a factual assertion as correct nor examining the logic and rationality behind executive claims of danger and necessity.

This article proposes employing the closely analogous - though rarely applied - field of Administrative Law to supply a novel juridical paradigm for determining the level of deference due the military's wartime factual conclusions. While extant military jurisprudence has chained courts to a deferential rubric that does little to safeguard the rule of law against an overzealous or prevaricating executive, administrative law has constructed a rational framework of factual deference that affords appropriate latitude to administrative agencies' exercise of their expertise - and Congress's intention to empower them to utilize that particularized competence - while restraining assessments and activities rendered illegitimate by controlling legal authority. Direct application of administrative law's principles to wartime adjudications holds the possibility of supplying a coherent theory of deference to a jurisprudential field characterized primarily by the absence of such organizing principles.

Keywords: Administrative, law, military, wartime, Chevron, hard look, deference, Padilla, Hamdi, agency, agencies

Suggested Citation

Masur, Jonathan S., A Hard Look or a Blind Eye: Administrative Law and Military Deference. Hastings Law Journal, Vol. 56, No. 3, p. 441, February 2005, Available at SSRN: https://ssrn.com/abstract=760529

Jonathan S. Masur (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.5188 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/masur/

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