Academic journal article Notre Dame Law Review

Disciplining Deference: Strengthening the Role of the Federal Courts in the National Security Realm

Academic journal article Notre Dame Law Review

Disciplining Deference: Strengthening the Role of the Federal Courts in the National Security Realm

Article excerpt


In a much discussed and influential speech at the National Defense University in May of 2013, President Barack Obama discussed the United States' national security situation. (1) About midway through the speech, President Obama made the following statement:

The Afghan war is coming to an end. Core al Qaeda is a shell of its
former self. Groups like AQAP must be dealt with, but in the years to
come, not every collection of thugs that labels themselves al Qaeda
will pose a credible threat to the United States. Unless we discipline
our thinking, our definitions, our actions, we may... continue to grant
Presidents unbound powers more suited for traditional armed conflicts
between nation states. (2)

Despite this aspirational rhetoric, little has been done to "discipline" the actions of the United States regarding drone strikes and other national security measures such as the detainment of suspected terrorists. (3) As the United States transitions into a post, post-9/11 period, the need for judicial deference to the Executive may well be decreasing along with the imminence of national security threats. However, federal district and appellate courts have continued to show high deference to the executive branch in cases involving national security. This Note will argue that federal courts need to be more "disciplined" in their deference determinations in order to effectively check the Executive's power. Part I will look at the Constitution and its allocation of foreign relations powers for evidence of the appropriate amount of deference that ought to be shown by the judiciary. While the text of the Constitution is largely silent on this question, Part I will show that this silence does not exclude a role for the judiciary in foreign affairs. Part II will proceed to discuss several important Supreme Court decisions that have helped to flesh out the historical understanding of deference determinations. These cases will demonstrate that the Supreme Court has not historically hesitated to fulfill its duty to "say what the law is," (4) even in cases regarding questions of national security. Part III advances to the post-9/11 era and shows that during more recent years, lower courts have conferred an unnecessarily high level of deference to the Executive in cases involving national security issues. After this background, Part IV will make a case for an expanded role for the courts in hearing and reviewing questions involving national security questions and more limited deference to the Executive on these matters. It will argue that this should be accomplished through the application of three principles: (1) a more formal approach to the judiciary's role in foreign affairs; (2) a willingness to apply international law; and (3) a narrow approach to the issues of the case in order to avoid judicial policymaking. Finally, Part V will analyze two recent cases, Bahlul v. United State (5) and Ali Jaber v. United States, (6) in light of these principles in order to illustrate the benefits that such an approach would have.


The Constitution does not vest any one branch with the plenary power of "foreign affairs." (8) Instead, it delegates specific powers related to foreign affairs to a branch or some combination of branches. (9) Article I grants Congress the powers: "To regulate Commerce with foreign Nations"; "To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations"; "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"; "To raise and support Armies"; "To provide and maintain a Navy"; "To make Rules for the Government and Regulation of the land and naval Forces"; and "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." (10) Article II makes the President the "Commander in Chief of the Army and Navy," and grants him the power "by and with the Advice and Consent of the Senate," to "make Treaties" and "appoint Ambassadors. …

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