Is Deference Deserved? Reexamining Judicial Review in National Security Cases

Nearly 75 years after the Supreme Court infamously deferred to intentionally misleading government claims of military necessity in Korematsu v. United States, the Court in Trump v. Hawaii upheld on rational basis review the constitutionality of President Trump’s “travel ban.” This was his third attempt at effecting, in Trump’s own words, a “complete shutdown of Muslims entering the United States.” More recently, the President has asserted “national security” as a justification for imposing tariffs on steel coming from Canada and has relied upon dubious claims of a national security crisis to invoke the National Emergencies Act of 1976 to unlock other potential sources of funding for his border wall. Unsurprisingly, litigation has ensued. Principles of judicial deference, particularly in the context of national security, are rooted in the acknowledgment that the executive branch is more expert, experienced, and politically accountable than the judiciary. But is judicial deference appropriate when that expertise isn’t consulted, or in fact, repudiates the executive’s claims? Should deference give way when civil rights are in jeopardy? Should there be a more considered approach to when and how courts defer to the executive in these circumstances?

SPEAKERS

Hon. John Tunheim, Chief Judge, U.S. District Court for the District of Minnesota; Moderator
Baher Azmy, Legal Director, Center for Constitutional Rights
Jamil Jaffer, Founder and Executive Director, National Security Institute, George Mason University Antonin Scalia Law School
Mary McCord, Senior Litigator, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center
Shirin Sinnar, Associate Professor and John A. Wilson Distinguished Faculty Scholar, Stanford Law School

View more videos from the ACS 2019 National Convention.