Operationalizing the Deference Thesis: Boundary Uncertainty and Other Difficulties that May Arise
[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)]
As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric state clearly in the book that “[t]he deference thesis does not hold that courts and legislators have no role at all.” The question thus is not whether the courts and Congress are to be disabled from checking the executive branch, but rather the extent to which their checking capacity will be limited. Significantly, Eric and Adrian concede that the extent to which deference should increase during emergencies “is always a hard question,” one that “depends on the scale and type of the emergency.” Having said that, however, they note that as a general proposition the pattern of past practice suggests “very great” levels of deference are given to the executive during emergencies, and they conclude that this pattern should be continued in the current climate of mass casualty terrorism threats.
I tend to agree with the comparative institutional-competence premises that undergird this theoretical framework, and accordingly I also agree that in many if not most security-related contexts a substantial degree of deference should indeed be afforded to executive branch judgments relating to security policy. But at the risk of jumping the gun on our subsequent discussions (I gather we are to focus on the theoretical framework for now, but will engage particular applications of the deference thesis soon enough), I want to articulate a trio of concerns that arise when one considers the practical operationalization of the substantial-deference precept.
My first concern has to do with boundaries. While some executive policies or actions relatively clearly fall within the category of security-related matters to which substantial deference would apply, the precise boundaries of that category are sufficiently uncertain to give me pause. Does the principle extend to some or all aspects of immigration policy, for example?
Perhaps the boundary concern can be set aside on the ground that, by definition, it fails to speak to core applications of the deference thesis. Even so, the very notion that there are distinctly marginal and core applications suggests that policies and actions to which the thesis might be applied vary by matters of degree in their relationship to security concerns. If that is correct, it seems to me that we should be wary of a one-size-fits-all approach to deference; the grounds for deferring may be stronger in some contexts than others, and as a result the degree of deference afforded arguably should be calibrated accordingly.
That brings me to my third concern, which has to do with the practical implementation of the deference concept (whether applied uniformly or on a sliding-scale). How precisely do we operationalize any commitment we might have to strong deference? Strong deference is not binding deference in this model, and thus it necessarily remains open for a judge to break with executive preferences in some particular cases. It is difficult, however, to put into words the triggering conditions under which it would be proper for a judge to do so. This does not mean that the strong-deference obligation has no bite, of course, but it does increase the probability that substantial deference will mean different things to different actors, or be implemented by them in different ways, even when confronted with comparable policies or actions. Indeed, something very much like that can be said with respect to the very muddled record associated with the implementation of the doctrine of judicial deference to executive branch treaty interpretations. I’ll try to say a bit more about this later in the week as we turn to the particular applications of the deference thesis that Eric and Adrian offer in the book itself.