Document Type

Article

Publication Title

Boston University Law Review

Publication Date

2013

Abstract

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after 9/11: Chevron-backers argue that the Court failed to accord sufficient deference to the President, while Chevron-detractors argue that the Court failed to clarify the scope of individual liberties. However, neither side appreciates the role that Justice Jackson’s seminal Youngstown concurrence has played in the Court’s resolution of recent national security cases. Youngstown makes congressional legislation – not Executive power or individual rights – the central judicial concern in cases pitting individual liberty against Executive power. The post-9/11 Supreme Court, following Justice Jackson, has used judicial review to catalyze congressional action by remanding to Congress policy questions lacking joint political branch support. This dual-branch theory of governance preserves a critical rule-of-law basis for judicial review of national security decisionmaking that Chevron’s backers and its detractors overlook.

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