After deference: formalizing the judicial power for foreign relations law.

• Author: Pearlstein, Deborah N.

INTRODUCTION I. THE PROBLEM OF INTERPRETATION IN FOREIGN RELATIONS LAW A. Foreign Relations Deference in the Modern Court 1. Interpreting Treaties 2. Interpreting Statutes B. The Elusive Promise of Chevron 1. The Chevron that Survives 2. Chevron's Functional Failings 3. The Persistent Formal Dilemma II. CONSIDERING FORMAL THEORIES OF THE JUDICIAL POWER A. Faithful Agent Theory B. Instrumental Interpretation III. EXPLORING A FORMAL THEORY OF JUDICIAL POWER FOR FOREIGN RELATIONS LAW A. Equilibrium Theory B. Considering Formal Objections CONCLUSION INTRODUCTION

How much deference should courts afford the executive's interpretations of statutes and treaties in foreign relations law? This question that has long engaged foreign relations scholars has found new salience in recent years, as the courts have been called repeatedly to determine the meaning of statutes and treaties bearing on the President's detention and trial powers in combating international terrorism. Among courts noting the confusion on this issue are those now attempting to address whether and to what extent the executive's views are relevant in interpreting the Authorization for Use of Military Force (AUMF), the statute the President invokes to justify continued detention of terrorist suspects at the U.S. Naval Base at Guantanamo Bay. (1) While the Supreme Court has offered some guidance on the scope of the statute, (2) the AUMF itself is silent on the question of detention. As the courts have struggled to choose between two interpretations of the statute--one put forward by the executive, the other advanced by detainees--courts have been notably equivocal on the potentially dispositive issue of judicial deference: "The Court does not accept the government's position [on the meaning of the statute] in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say 'what the law is'...." (3)

Historically, most scholars have accepted with little question the notion that the Court will defer to executive views in core matters of foreign relations, particularly where matters of national security are concerned. (4) Yet on descriptive and normative grounds, the events of the past decade have called the prevailing account into question. In treaty interpretation, the Court has invoked a Marbury-based insistence on asserting its own formal interpretive authority. As the Court put it perhaps most dramatically in recent opinions construing the Vienna Convention on Consular Relations: "If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law 'is emphatically the province and duty of the judicial department,' headed by the 'one supreme Court' established by the Constitution." (5) Likewise, in a series of decisions involving national security, the Court has been anything but deferential to the executive's interpretation of the relevant statute or treaty. In Rasul v. Bush, (6) Hamdi v. Rumsfeld, (7) Hamdan v. Rumsfeld, (8) and Boumediene v. Bush, (9) the Court has swept aside vigorous arguments by the executive that it refrain from engagement on abstention or political question grounds. Moreover, the Court has scarcely noted any doctrinal tradition of interpretive "deference" on the meaning of the laws. While descriptive claims that the Court invariably defers to the President in foreign relations law interpretation have always been subject to challenge, the Court's recent behavior has made this account increasingly untenable. (10)

In the wake of such decisions, scholars have turned renewed attention to the task of identifying a doctrine of "deference" in foreign relations law. Cass Sunstein and Eric Posner, among others, have expressed the normative concern that the Court, unduly interested in "saying what the law is" in an area of questionable judicial competence, was no longer taking sufficient account of the executive's superior expertise and political responsiveness in this realm. (11) Others, while not necessarily lamenting the less deferential judicial role, have focused on the importance of finding some constraining approach that would provide interpretive guidance to the courts. (12) If there is no predictable or sensible way of determining how much attention the Court will pay executive views in construing foreign relations law, rule-of-law interests require, at a minimum, the development of a new understanding of the judicial relationship to the executive on questions of law interpretation. Responding to such concerns, Sunstein and Posner thus joined Curtis Bradley and others in suggesting that courts should defer to the executive in cases with "substantial foreign relations implications," just as they do under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (13) in the standard administrative law context. (14)

But as this Article contends, Chevron's promise of resolving the deference question in foreign relations law is almost certainly overstated.

First, Chevron is not nearly as doctrinally stable as its advocates suggest. As a growing set of empirical studies has shown, Chevron has exerted anything but a defining hold on Supreme Court treatment of agency interpretation of federal laws. This Article will describe how the contemporary Court has regularly avoided applying traditional Chevron deference in what might otherwise have been thought to be circumstances described by the core of that doctrine. Indeed, the Court has ignored Chevron as a useful interpretive guide in recent foreign relations cases in which it might most readily be implicated. (15) At the same time, while one of the most important functional rationales for embracing Chevron in the foreign relations context is said to be the doctrine's ability to take account of the executive's superior expertise, Chevron is, in key respects, a blunt tool for ensuring that expertise is taken into account in law interpretation. An agency administrator in principle enjoys deference under Chevron whether or not the administrator has actually included the relevant agency experts in the analysis. If one accepts the view that the executive's key strength is its expertise on certain questions arising in foreign relations, one would presumably wish to insist that the actual experts inside the executive branch be consulted. If expertise matters, there may be more effective ways of ensuring its inclusion than review for generalized "reasonableness" of "executive" interpretation.

Beyond this, the wholesale importation of Chevron into foreign relations law poses another problem. As Chevron's critics have emphasized since soon after the decision came down, Chevron appears to be in tension with the Court's formal constitutional power under Article III, which has at its core the duty to "say what the law is." (16) When the Court does something less than determine for itself what the law is, the argument goes, it is ceding power that the Framers of the Constitution intended to reserve to the Article III courts. (17) While administrative law scholars have grappled with this problem for decades, it has been surprisingly absent from the contemporary foreign relations law debate. Yet importing Chevron into the foreign relations setting without attempting to address the issue only perpetuates the formal dilemma. Particularly because the formal allocation of foreign relations power between the judicial and executive branches--unlike the rather more novel authority of administrative agencies--is an express subject of constitutional concern, it seems essential to have some formal theory of how interpretive power may be shared in this realm before designing a deference doctrine that effectively shares it. At what point does a pretermission of the judicial interpretive inquiry--in favor of the executive's meaning--chip away at a formal authority the Constitution otherwise grants to the courts? Once a "case or controversy" is properly before an Article III court, is there a formal floor of judicial power to interpret statutes and treaties, beneath which no functional deference rationale can justify allowing the court to sink? Without some more developed understanding of what is meant by the "judicial power" in foreign relations law, it is premature to settle on a deference regime that may have the court adjusting its approach to law interpretation. This Article begins exploring answers to these questions of formal power.

Part I engages the current debate over judicial deference in foreign relations interpretation. While embracing the need for greater clarity, it argues that importing Chevron into foreign relations law is an unsatisfying solution. Part II then takes up the problem of formal judicial power in detail, considering first the two leading accounts of the "judicial power" in statutory interpretation. The first model, still perhaps the dominant understanding of the courts' role in statutory interpretation, known as "faithful agent" theory, sees the relationship between Congress and the courts as that of principal and agent, where the judicial agent's duty is limited to attempting to discern and accurately apply the directions of the legislative principal set forth in statute. (18) Yet as will be discussed, faithful agent theory seems unlikely to fully explain the judicial role in foreign relations law. In statutory interpretation, it is not immediately clear that it leaves room for an executive interpretive role of any sort. For treaty interpretation, faithful agent theory's utility is even more suspect. Treaties, of course, are not concluded by the legislature alone, but are "ma[d]e" by the executive, "by and with the advice and consent of the Senate." (19) Indeed, the U.S. executive and Senate are not the sole lawmakers involved in making treaties; foreign treaty partners help conceive, negotiate, and draft the legal text. (20) In this context...