//  4/23/18  //  Commentary

This week, the Supreme Court will hear arguments in the most recent iteration of Trump v. Hawaii.  An important part of the case is the government’s assertion of national security exceptionalism. Foreign affairs or national security “exceptionalism” refers to the argument that foreign affairs or national security questions should, as a category, receive different treatment than cases not touching on those subjects, and in general, national security exceptionalism is used in favor of broad presidential power. While some of the briefing, in particular the amicus brief of former State Department Legal Advisor and Yale Law School Dean Harold Hongju Koh, counsel of record for the amicus curiae Former National Security Officials, express concern over the use of national security exceptionalism in the case, these arguments actually underplay the depth of the problems with exceptionalism. While categorized “national security” issues as warranting exceptional deference  might be rhetorically powerful and instinctively comforting, it is not logically defensible – and it poses dangerous consequences for our constitutional system.

Exceptionalists argue that in foreign affairs and national security cases, courts should apply an expansive political question doctrine, federal authority should overcome state prerogatives, and presidential powers must be broadly construed.  Exceptionalism rests on a variety of functional arguments including that the courts have no expertise in national security, that issues touching on foreign affairs are of great importance and that these cases present unique needs in terms of speed and secrecy, and the like. The Supreme Court’s 1936 decision in United States v. Curtiss-Wright is archetypical in its exceptionalist rhetoric, but as we argue here, the Supreme Court has significantly rolled back its reliance on exceptionalist arguments over the past few decades.

Still, the Trump v. Hawaii litigation has surfaced a variety of exceptionalist arguments, as did the earlier rounds of travel ban litigation.  Some of the exceptionalist arguments are based on national security concerns while others are based on “immigration exceptionalism,” which is derived in part from the national security and foreign relations implications of immigration decisions. 

Exceptionalism is often used to claim that courts must be especially deferential in foreign affairs cases. In the most recent briefing, for example, the government argues that policies regarding aliens are “interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power,” and that “[s]uch matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

The government also argues that deference “is especially warranted because the President’s determinations directly implicate his core foreign affairs and national-security responsibilities,”  that “[t]he Executive should not have to disclose its * * * reasons for deeming nationals of a particular country a special threat,” or even when it “simply wish[es] to antagonize a particular foreign country by focusing on that country’s nationals,” because the reasons may rest on classified or sensitive material” and that “even if the President does disclose his reasons, courts are ‘ill equipped to determine their authenticity and utterly unable to assess their adequacy.’”  

These arguments about deference and judicial incapacity are classic exceptionalism, but they do not withstand scrutiny.   Courts are equally “ill-equipped” to resolve many issues of domestic law such a privacy, telecommunications, banking, health care and other complex and contentious issues.  Although some deference to the President’s fact-finding is undoubtedly appropriate in both domestic and foreign affairs cases, broad and unsubstantiated claims of judicial incapacity in foreign relations matters alone is unconvincing.

The Court itself referenced a different basis for exceptionalism arguments in its June 26, 2017, per curiam opinion in Trump v. Hawaii. The Court reasoned that “[t]he interest in preserving national security is ‘an urgent objective of the highest order’” (quoting Holder v. Humanitarian Law Project) and that “…the balance tips in favor of the Government’s compelling need to provide for the Nation’s security”.  The urgency or “error-cost” rationale for national security exceptionalism is just as unconvincing as the expertise rationale.  Many issues of domestic policy, such as health care, gun control, the opioid crisis, education, and taxation are also “urgent” objectives with the potential to impact the safety and well-being of millions upon millions of Americans.  As an argument in favor of a special deference in all national-security cases, the “urgency” or “high stakes” argument fails.

The Court should renounce national security exceptionalism because it is illogical and unconvincing.  But it also risky. It gives the president the incentive to characterize many questionable actions as raising foreign policy or national security concerns, as the famous Youngstown Sheet & Tube Co. v. Sawyer case illustrates. The Truman Administration argued that the president had the authority to seize the nation’s steel industry to prevent strikers from halting the production of steel necessary for the Korean War effort. The Court, wisely and famously reasoned that “Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.”

In Trump v. Hawaii, the Court should explicitly reject the government’s exceptionalist arguments. Doing so doesn’t necessarily suggest any particular outcome in this case (or in any other case). Instead, in a world without national security exceptionalism, the Court would engage in ordinary statutory interpretation and ordinary constitutional interpretation. Invocations of “national security” or sweeping functional arguments untethered to the particular context would not shield executive actions from the Constitution and the rule of law. In some cases, the government might win; in others, the government might lose. But crucially, decisions would be based on interpreting the law – and not on the indefensible position that national security and foreign affairs are categorically different from ordinary policymaking.

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: Easha's Back, To Talk Qualified Immunity and Police Reform

6/21/20  //  Commentary

On this week’s Versus Trump, Easha Anand makes her triumphant return to talk qualified immunity and police reform. The trio talk about the proposal to reform qualified immunity and debate whether that will do much. They then break down other new legal innovations in the various proposals and ask: is it enough to create new grounds for people to sue? Or are other reforms more important? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP