The doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs, especially during wartime, have a solid and undisputed formal pedigree. But these doctrines also have a strong functional basis. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. Hamdan's refusal to give deference to the executive branch, if followed in the future, will further disrupt the traditional system of political cooperation between Congress and the President in wartime. It will raise the transaction costs for policymaking during war without any serious benefit and potentially at large cost. Congress expressed its displeasure with Hamden by stripping federal courts of jurisdiction and reducing their interpretive freedom over foreign affairs statutes and international law.
This paper proceeds in three parts. In Part I, we criticize the formal basis for the Court's decision in Hamdan, especially its failure to follow doctrines requiring deference to executive interpretations of foreign affairs laws. In Part II, we offer a functional justification for deference doctrines based on the executive's comparative institutional advantages over the federal judiciary in the conduct of foreign affairs, especially in times of war. Finally, in Part III, we discuss the consequences of Hamdan on cooperation between the President and Congress in the conduct of this and future wars.
Julian G. Ku and John Yoo,
Hamdan v. Rumsfeld: The Functional Case For Foreign Affairs Deference to The Executive Branch, 23 Const. Comment. 179
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