After deference: Formalizing the judicial power for foreign relations law

University of Pennsylvania Law Review

Volumn 159, Issue 3, 2011, Pages 783-852

  Pearlstein, Deborah N ^a,b  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b PRINCETON UNIVERSITY   (United States)

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EID: 79952125264     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (471)

1. Authorization for Use of Military Force, 50 U.S.C. §1541 note (2006).
2. See Hamdi v. Rumsfeld, 542 U.S. 507, 516-19 (2004) (plurality opinion) (finding that the AUMF permits detention, at a minimum, of individuals who were '"part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States'" there
3. (quoting Brief for Respondent at 3, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696))).
4. Hamlily v. Obama, 616 F. Supp. 2d 63, 69 (D.D.C. 2009)
5. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803));
6. see also id. ("Although there is some disagreement regarding the extent of the deference owed the Executive in this setting, it is beyond question that some deference is required."). The court also cites articles reflecting the scholarly debate over deference: Compare Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1220 (2007) (arguing that with respect to the AUMF, "the President should be taken to have the authority to interpret ambiguities as he chooses"),
7. with Derek Jinks & Neal Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1234 (2007) (acknowledging that under existing doctrines deference is warranted in some circumstances, but arguing that "increased judicial deference to the executive in the foreign relations domain is inappropriate").
8. Id. at 69.
9. See, e.g., Department of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism: Hearings Before the S. Comm. on the Judiciary, 107th Cong. 162 (2002) (statement of Laurence H. Tribe, Tyler Professor of Constitutional Law, Harvard Law School) ("[C]ourts necessarily see but one case at a time and in wartime tend to defer to the executive's greater knowledge and expertise . ...");
10. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 132 (2d ed. 1996) ("[F]oreign affairs make a difference. Here, the courts are less willing than elsewhere to curb the federal political branches, are even more disposed to presume the constitutional validity of their actions and to accept their interpretations of statutes, and have even developed doctrines of special deference to them.");
11. Christina E. Wells, Questioning Deference, 69 Mo. L. REV. 903, 906 & n.14 (2004) (citing various sources).
12. Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006)
13. (quoting Marbury, 5 U.S. (1 Cranch) at 177);
14. see also Medellín v. Texas, 552 U.S. 491, 523 (2008) (rejecting the executive's argument that a judgment of the International Court of Justice, although not binding in courts of its own authority, "became the law of the land with precisely that effect pursuant to the President's Memorandum and his power 'to establish binding rules of decision that preempt contrary state law'"
15. (quoting Brief for United States as Amicus Curiae Supporting Petitioner at 5, Medellín, 552 U.S. 491 (2008) (No. 06-0984))).
16. 542 U.S. 466 (2004) (interpreting the federal habeas statute).
17. 542 U.S. 507 (2004) (interpreting the AUMF and the Geneva Conventions).
18. 548 U.S. 557 (2006) (interpreting the Detainee Treatment Act, the Uniform Code of Military Justice, and the Geneva Conventions).
19. 553 U.S. 723 (2008) (interpreting the Military Commissions Act).
20. See infra Part I.
21. See Posner & Sunstein, supra note 3 (arguing that reasonable interpretations by the executive of ambiguous statutes should "trump" certain judicial doctrines);
22. Cass R. Sunstein, Administrative Law Goes to War, 118 HARV. L. REV. 2663 (2005) [hereinafter Sunstein, Administrative Law Goes to War] (arguing that presidential action under statutes authorizing the use of military force should receive considerable deference);
23. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580 (2006) [hereinafter Sunstein, Beyond Marbury] (expressing approval of judicial deference to executive interpretations).
24. But see Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 701 (2000) (noting the "substantial deference" courts give the executive branch in matters of foreign affairs).
25. See Robert M. Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 IOWA L. REV. 1723, 1772-73 (2007) (proposing a model of deference to executive treaty interpretation that varies based on the circumstances);
26. Jinks & Katyal, supra note 3, at 1236-38 (recognizing that while some judicial deference is often appropriate, it is not appropriate when international law seeks to constrain the executive itself).
27. 467 U.S. 837 (1984).
28. Posner & Sunstein, supra note 3, at 1217.
29. See infra subsection I.B. 2.
30. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
31. See, e.g., Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 525 (1989) (arguing that Chevron poses a challenge to the separation of powers).
32. See infra Section II.A.
33. U.S. CONST, art. II, §2.
34. See Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331 (providing that treaties should be interpreted by looking to the actions and pertinent agreements made by all the parties of the treaty);
35. Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 183-85 (1982) (attending to the views of both the United States and Japan in interpreting the terms of a Friendship, Commerce and Navigation Treaty between the parties).
36. See, e.g., WILLIAM N. ESKRIDCIE, JR., DYNAMIC; STATUTORY INTERPRETATION 11618 (1994) (discussing the belief of the Framers of the Constitution injudicial engagement in interpretation);
37. Jonathan T. Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role, 53 STAN. L. REV. 1, 7 (2000) (arguing that judicial influence over legislative behavior is "an important component of the Founders' constitutional design").
38. A number of scholars have discussed the role of so-called normative canons in statutory interpretation.
39. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, QuasiConstitutional Law: Clear Statement Ruks as Constitutional Lawmaking, 45 VAND. L. REV. 593, 598 (1992) ("A good many of the substantive canons of statutory construction are directly inspired by the Constitution ....");
40. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2111 (1990) ("By using these principles, courts decide cases of statutory meaning by reference to something external to legislative desires ....").
41. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2103-06 (2005) (arguing against a clear statement requirement on delegation grounds in interpreting the AUMF).
42. See Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 33 (1983) (describing Marbury'a understanding of the "judicial power" over interpretation).
43. Id.at 2.
44. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
45. Farina, supra note 17, at 496-97
46. (quoting THE FEDERALIST No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961)).
47. See id. at 487 (explaining how judicial review can help check excessive delegations of power).
48. Id. at 497.
49. See generally Kim Lane Scheppele, The International State of Emergency: Challenges to Constitutionalism after September 11 at 3-5 (Sept. 21, 2006) (unpublished manuscript) (on file with author) (describing how national executives have used a series of U.N. Security Council antiterrorism resolutions to evade structural constitutional constraints domestically).
50. See Hamdi v. Rumsfeld, 542 U.S. 507, 518-19 (2004) (plurality opinion) (interpreting the AUMF to authorize the detention of certain individuals as enemy combatants).
51. See, e.g., Bradley & Goldsmith, supra note 23, at 2100 (noting that the AUMF governs a context in which the President "possesses independent constitutional authority under Article II," so "the authorization need not be as precise as would be required in the absence of concurrent presidential authority").
52. U.S. CONST, art. III, § 2.
53. See sources cited supra note 4 for examples of scholarly opinion describing deference to executive views.
54. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 329 (1936) (upholding a congressional delegation of authority to the President to impose an arms embargo under certain circumstances).
55. See David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. COLO. L. REV. 1439, 1462-66 (1999) (arguing that judicial deference in treaty interpretation increased during the twentieth century);
56. Bradley, supra note 11, at 659 ("Since early in the nation's history, courts have been reluctant to contradict the executive branch in its conduct of foreign relations.");
57. Scott M. Sullivan, Rethinking Treaty Interpretation, 86 TEX. L. REV. 777, 780 (2008) (positing that twentieth-century courts regularly deferred to executive actions in foreign affairs).
58. See sources cited supra note 36.
59. Recent historical analysis of the founding-era Court finds no tradition of judicial deference to executive views on the meaning of treaties. See David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497, 502-22 (2007) (surveying the Supreme Court's historically nondeferential approach to treaty interpretation). In statutory interpretation, scholars have long worked to demonstrate that the political question doctrine, for example, has given the Supreme Court little pause in practice.
60. See THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS 61 (1992) (arguing that the political question doctrine has played a minimal role in Supreme Court case law and "may be falling into desuetude").
61. Kolovrat v. Oregon, 366 U.S. 187, 194 (1961);
62. see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982) ("Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight." (citing Kolovrat, 366 U.S. at 194));
63. Factor v. Laubenheimer, 290 U.S. 276, 295 (1933) ("[I]n resolving doubts the construction of a treaty by the political department of the government, while not conclusive upon courts called upon to construe it, is nevertheless of weight.");
64. Sullivan v. Kidd, 254 U.S. 433, 442 (1921) ("[T]he construction placed upon the treaty before us and consistently adhered to by the Executive Department of the Government, charged with the supervision of our foreign relations, should be given much weight.");
65. Charlton v. Kelly, 229 U.S. 447, 468 (1913) ("A construction of a treaty by the political department of the Government... is ... of much weight.").
66. See, e.g., Sumitomo, 457 U.S. at 184-85 (cautioning that agency interpretations are "not conclusive").
67. United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992);
68. see also Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 65 (1993) ("Our interpretation must begin, as always, with the text of the Conventions.").
69. See, e.g., Olympic Airways v. Husain, 540 U.S. 644 (2004);
70. Nielsen v. Johnson, 279 U.S. 47 (1929);
71. In reRoss, 140 U.S. 453 (1891).
72. Bradley, supra note 11, at 701.
73. See Chesney, supra note 12, at 1752-58 (reviewing treaty deference cases and concluding that the executive branch's interpretation "prevails in most instances").
74. 299 U.S. 304, 320 (1936).
75. Id.
76. Id. at 319.
77. Id.
78. See Bradley & Goldsmith, supra note 23, at 2100-01 ("'[T]he same limitations on delegation do not apply where the entity exercising the delegated authority itself possesses independent authority over the subject matter.'"
79. (quoting Loving v. United States, 517 U.S. 748, 772 (1996))).
80. See, e.g., Charles A. Lofgren,United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 YALE L.J. 1, 28-32 (1973) (criticizing the decision and its resulting impact).
81. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1098-1100 (2008) (describing a continuum of judicial deference regimes, along which Curtiss-Wright-type attention to executive views appears at the most deferential end);
82. see also Bradley & Goldsmith, supra note 23, at 2101-02 (citing CurtissWright in support of broad readings of congressional delegations of power to the executive in foreign affairs).
83. Eskridge and Baer's survey of 1014 Supreme Court cases since Chevron in which an agency interpretation of a statute was at issue classifies only nine of these as foreign affairs and national security matters receiving "super-strong deference"-cases in which "the executive department interpretation prevails not only" when the statute is ambiguous, "but also in cases where Congress has not clearly trumped the agency or presidential construction."
84. Eskridge & Baer, supra note 51, at 1101-02 & n.56. But even in these nine cases, it is debatable whether the executive's position prevailed because the Court deferred to an executive interpretation of a statute rather than reaching that result based on its own independent analysis. For example, one of the nine cases, Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005), announced no deference scheme and conducted a thorough de novo exercise in statutory interpretation, noting only at the end that a "policy of deference" to the executive in foreign affairs would also lead it to favor the interpretation already given.
85. Id. at 348. Another of the nine, Cheney v. United States District Court, 542 U.S. 367 (2004), involved the interpretation of the common law writ of mandamus and common law executive privilege.
86. Vienna Convention on Consular Relations art. 36, done Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
87. See, e.g, Medellín v. Texas, 552 U.S. 491, 504-06 (2008) (holding that Vienna Convention provisions are non-self-executing);
88. Sanchez-Llamas v. Oregon, 548 U.S. 331, 358-60 (2006) (rejecting a claim that a judgment of the International Court of Justice requires overriding application of state procedural default rules);
89. Breard v. Greene, 523 U.S. 371, 375-77 (1998) (determining that the Vienna Convention did not preclude application of state procedural default rules). The Vienna Convention provides that when the police of a signatory nation arrest a foreign national, the detaining "authorities shall inform" the foreign national "without delay" of his "right[]" to contact his nation's consular officers. Vienna Convention on Consular Relations,
90. supra note 53, art. 36.
91. Breard, 523 U.S. at 375-76 (holding that state procedural rules can trump a defendant's collateral assertion of Vienna Convention rights).
92. Optional Protocol Concerning the Compulsory Settlement of Disputes art. 1, done Apr. 24,1963, 21 U.S.T. 325, 596 U.N.T.S. 488 (ratified by the United States in 1969).
93. LaGrand Case (Ger. v. U.S.), 2001 I.C.J. 466, 498 (June 27) (quoting Vienna Convention on Consular Relations, supra note 53, art. 36(2));
94. see also Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 43 (Mar. 31) (finding a duty to give a detainee notice of Article 36 rights once there is a strong reason to believe the person is a foreign national).
95. 548 U.S. at 340.
96. See id. at 345-50.
97. Id. at 346
98. (quoting 1 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 325(1) (1987)).
99. Id. at 353. Because the Court ruled against habeas petitioners on the remedy question, it concluded it did not need to reach the third question presented in the case: "whether Article 36 of the Vienna Convention grants rights that may be invoked by individuals in ajudicial proceeding."
100. Id. at 342-43.
101. Id. at 353-55.
102. Id. at 353-54 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))
103. (citing Williams v. Taylor, 529 U.S. 362, 378-79 (2000) (opinion of Stevens, J.) ("At the core of [the judicial] power is the federal courts' independent responsibility- independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States-to interpret federal law.")).
104. Id. at 354-55
105. (quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)).
106. Id. at 355.
107. Memorandum from President George W. Bush for the Attorney General (Feb. 28, 2005), reprinted in Brief for United States as Amicus Curiae Supporting Respondents app. at 9a, Medellin v. Dretke, 544 U.S. 660 (2004) (No. 04-5928).
108. Sanchez-Llamas, 548 U.S. at 355 (quoting Memorandum from President George W. Bush, supra note 66).
109. 552 U.S. 491 (2008).
110. See id. at 506-07 ("The interpretation of a treaty, like the interpretation of a statute, begins with its text. Because a treaty ratified by the United States is 'an agreement among sovereign powers,' we have also considered as 'aids to its interpretation' the negotiation and drafting history of the treaty as well as 'the postratification understanding' of signatory nations."
111. (quoting Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996) (citation omitted))).
112. Id. at 513
113. (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982)).
114. Id. at 523 (quoting Brief for United States as Amicus Curiae Supporting Petitioner, supra note 5, at 5).
115. Id. at 525 (quoting Brief for United States as Amicus Curiae Supporting Petitioner, .supra note 5, at 11).
116. Id.
117. Id. at 526.
118. See supra note 39 (citing cases in which the Court considered executive negotiating history and performance).
119. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (supporting the practice of judicial deference to executive agencies on grounds of the executive's electoral accountability and expertise).
120. See Sullivan v. Kidd, 254 U.S. 433, 439 (1921) (stating that treaties should be interpreted in part by reference to principles of contract interpretation).
121. See Kolovrat v. Oregon, 366 U.S. 187, 194-95 (1961) ("We have before us statements, in the form of diplomatic notes exchanged between the responsible agencies of the United States and of Yugoslavia, to the effect that the 1881 Treaty, now and always, has been construed as providing for inheritance by both countries' nationals without regard to the location of the property to be passed or the domiciles of the nationals.").
122. Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982), is especially direct in this regard. There, the Court reviewed evidence of both U.S. and Japanese intent to decide whether female employees' Tide VII discrimination claim against an American subsidiary of a Japanese company was effectively precluded by the terms of the Friendship, Commerce and Navigation Treaty between the United States and Japan.
123. See id. at 185-89.
124. Id. at 185 (emphasis added). Indeed, it was on this basis that Justice Scalia dissented in a later treaty interpretation case, arguing not that insufficient deference was paid to the United States' position but that "[w]hen we interpret a treaty, we accord the judgments of our sister signatories 'considerable weight.'" Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (emphasis added) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)).
125. 548 U.S. 557 (2006).
126. Id. at 630 (quoting Geneva Convention Relative to the Treatment of Prisoners of War art. 3, came into force Oct. 21,1950, 6 U.S.T. 3316, 75 U.N.T.S. 135).
127. See id. at 584-85 (addressing the Government's argument that the Court should apply the "judge-made rule that civilian courts should await the final outcome of ongoing military proceedings before entertaining an attack on those proceedings" (quoting Brief for Respondents at 12, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 050184)));
128. see also id. at 587-88 (finding that the commission review system "clearly lack[s] the structural insulation from military influence that characterizes the Court of Appeals for the Armed Forces, and thus bear[s] insufficient conceptual similarity to state courts to warrant invocation of abstention principles").
129. Id. at 588 (quoting Ex parte Quirin, 317 U.S. 1, 19 (1942));
130. see also id. at 589 (concluding that despite the executive's claims of military necessity, "the Government has identified no other 'important countervailing interest' that would permit federal courts to depart from their general 'duty to exercise the jurisdiction that is conferred upon them by Congress'" (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (Kennedy, J., concurring))).
131. See id. at 625-35 (describing the executive's argument).
132. Id. at 630-32.
133. See id. at 635 ("Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.").
134. 542 U.S. 507 (2004).
135. See 50 U.S.C. §1541 note (2006) (authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the September 11, 2001, terrorist attacks).
136. Brief for Respondents at 24 n.9, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696). To be clear, the executive's claim was not that the Court should defer to a particular determination by the President of a particular detainee's eligibility for POW status on the facts. Rather, this was a generalized conclusion about the relevance of the Convention to a conflict between two state parties to the treaty (the United States and Afghanistan).
137. See id. at 12 ("[T] he nature of judicial review available with respect to the military's enemy-combatant determination is limited by the profound separation-of-powers concerns implicated by efforts to second-guess the factual basis for the exercise of the Commander in Chiefs authority to detain a captured enemy combatant in wartime.").
138. The plurality made it clear that it was limiting its reading of the AUMF detention authority to the particular facts of Hamdi's case.
139. See Hamdi, 542 U.S. at 516 (plurality opinion) (adopting, "for purposes of this case," the government's definition of an "enemy combatant" as one who was '"part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there" (quoting Brief for Respondents, supra note 90, at 3)).
140. Id. at 521.
141. Id. at 518 (quotingEx parte Quirin., 317 U.S. 1, 30 (1942)).
142. Id. at 519.
143. Id. at 521.
144. Id. at 535 (citing Korematsu v. United States, 323 U.S. 214, 233-34 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.");
145. Sterling v. Constantin, 287 U.S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.")).
146. 542 U.S. 466 (2004).
147. See id. at 475 ("Respondents' primary submission is that the answer to the jurisdictional question is controlled by ... Eisentrager.");
148. see also Brief for Respondents at 14-25, Rasul, 542 U.S. 466 (2004) (Nos. 03-0334, 03-0343) (citing Johnson v. Eisentrager, 339 U.S. 763 (1950), as controlling precedent). Among other arguments, the government contended that the presumption against extraterritorial application of statutes '"has special force when we are construing treaty and statutory provisions that may involve foreign and military affairs for which the President has unique responsibility.'"
149. Id. at 19
150. (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155,188 (1993) (Blackmun, J., dissenting)).
151. See Rasul, 542 U.S. at 487 ("From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the 'implied protection' of the United States to it." (quoting Eisentrager, 339 U.S. at 777-78)). Because "sovereignty" per se was not the touchstone of jurisdictional authority, the executive's interpretation of the U.S.-Cuba lease agreement (allowing Cuba to retain "ultimate sovereignty") in this regard was similarly irrelevant.
152. 548 U.S. 557 (2006).
153. 101 10 U.S.C. § 836 (2006).
154. Brief for Respondents at 19, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05-0184).
155. Id. at 18 (quoting Uniform Code of Military Justice, 10 U.S.C. § 836 (2006)).
156. Id.
157. Id. at 47 n.22 (quoting Military Order of Nov. 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. 918 (2009)).
158. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (holding that when a statute's meaning is ambiguous, the Court will defer to the agency's judgment as long as it is reasonable);
159. see also United States v. Mead Corp., 533 U.S. 218, 229 (2001) (clarifying the scope of Chevron deference to require a delegation by Congress of authority to make regulations "with the force of law.").
160. Hamdan, 548 U.S. at 622.
161. 10 U.S.C. §836(b) (2006).
162. Hamdan, 548 U.S. at 622.
163. 10 U.S.C. § 836(b) (emphasis added).
164. Hamdan, 548 U.S. at 623.
165. Id.
166. Id. at 623 n.51.
167. Id. at 623.
168. Id. at 624.
169. See Boumediene v. Bush, 553 U.S. 723, 787-92 (2008).
170. See id. at 789 (concluding there was "no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings");
171. see also id. at 792 ("To hold that the detainees at Guantanamo may, under the DTA, challenge the President's legal authority to detain them, contest the CSRT's findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the § 2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress's reasons for enacting it, cannot bear this interpretation.").
172. See id. at 796 ("In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches."). Yet, from his mention of deference, Justice Kennedy drew at most a conclusion of policy, not one of interpretation: "The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security."
173. Id. at 797. Beyond that, the opinion is notably obscure on how deference is to be accorded and to whom. One most easily reads Justice Kennedy as understanding the deference obligation to go to Congress and the President- not to the executive alone. Indeed, far from embracing traditional deference-like justifications, such as the danger that court involvement would risk embarrassment of multifarious pronouncements from different branches, Justice Kennedy insisted that the exercise of executive authority is "vindicated, not eroded, when confirmed by" courts.
174. Id. Moreover, Justice Scalia categorically rejected the notion that the Court's posture was deferential in any regard. On the contrary, Scalia found Justice Kennedy's approach "a pose of faux deference to Congress and the President.. .. What the Court apparently means is that the political branches can debate, after which the Third Branch will decide."
175. Id. at 830 n.1 (Scalia, J., dissenting).
176. 553 U.S. 674 (2008).
177. Id. at 703 n.6 (citing the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, §2242(a), 112 Stat. 2681-822, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, registered June 26, 1987, S. TREATY DOC. No. 20 (1988), 1465 U.N.T.S. 85 ("No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.") ).
178. Id. at 700.
179. Reply Brief for the Federal Parties at 23, Munaf, 553 U.S. 674 (Nos. 07-0394 and 06-1666) (quoting Bureau of Democracy, Human Rights, & Labor, Iraq, U.S. DEP'T OF STATE (Mar. 11, 2008), http://www.state.gOv/g/drl/rls/hrrpt/ 2007/100596.htm).
180. Id. at 23.
181. Munaf, 553 U.S. at 702.
182. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).
183. See, e.g., Posner & Sunstein, supra note 3, at 1176 (arguing that courts should defer to the executive's foreign policy expertise);
184. Sunstein, Administrative Law Goes to War, supra note 11, at 2671 (arguing for a generous interpretation of presidential powers).
185. See, e.g., Bradley & Goldsmith, supra note 23, at 2084 (proposing to provide "a more systematic account" of the factors "relevant to interpreting the AUMF");
186. Chesney, supra note 12, at 1727 (lamenting that "the deference doctrine appears more unsettled and indeterminate than ever before");
187. Sullivan, supra note 36, at 781 (noting that courts have "failed to provide any clarity in [the] doctrine" for determining what degree of deference is appropriate).
188. Posner & Sunstein, supra note 3, at 1221-22.
189. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
190. Id. at 843.
191. Posner & Sunstein, supra note 3, at 1222.
192. Bradley, supra note 11, at 673. Note, however, that since Bradley's article was published in 2000, several new Justices have been confirmed to the Court.
193. See id. at 668, 773-75 (discussing disadvantages of a multifactor approach and advantages of Chevron). But see Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 970 (1992) (arguing that the Court continued to rely on multifactor tests despite Chevron).
194. Bradley, supra note 11, at 673 (footnotes omitted).
195. Posner & Sunstein, supra note 3, at 1206-07 (noting that the executive is far more politically accountable than the courts in the face of foreign policy crises).
196. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803);
197. see also, e.g., Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986) (describing the assumption that Congress delegates lawmaking power to the executive agency as a "legal fiction");
198. Sunstein, Beyond Marbury, supra note 11, at 2589 (describing Chevron as "a kind of counter-Marlniry for the administrative state").
199. Eskridge & Baer, supra note 51, at 1090. In the vast majority of the 1014 cases the Court decided during this period in which an executive agency interpretation of a statute was at issue, the Court applied either less stringent deference than that afforded by Chevron, or no apparent deference at all.
200. Id. at 1121.
201. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) ("We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.");
202. see also Negusie v. Holder, 129 S. Ct. 1159, 1170-71 (2009) (Stevens, J., concurring in part and dissenting in part) ("Judicial deference to agencies' views on statutes they administer was not born in Chevron.. ., nor did the 'singularly judicial role of marking the boundaries of agency choice' die with that case." (quoting Young v. Cmty. Nutrition Inst., 476 U.S. 974, 988 (1986) (Stevens.J. dissenting))).
203. Chevron, 467 U.S. at 844 (quoting United States v. Shimer, 367 U.S. 374, 382 (1961));
204. see also id. at 865 ("Judges are not experts in the field . ...").
205. Chevron, 467 U.S. at 843 n.9.
206. See Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW. U. L. REV. 1239, 1243-44 (2002) (detailing the power over interpretation the Court retained even under Chevron).
207. See, e.g., Eskridge & Baer, supra note 51, at 1086-87 ("Almost immediately, Reagan Administration officials and appointees proclaimed a 'Chevron Revolution.'");
208. Merrill, supra note 133, at 976 ("Justice Stevens'[s] opinion contained several features that can only be described as 'revolutionary,' even if no revolution was intended at the time."
209. (quoting Kenneth W. Starr, Judicial Review in the Past-Chevron Era, 3 YALE J. ON REG. 283, 284 (1986)));
210. see also Sunstein, Beyond Marbury, supra note 11, at 2596 (describing Chevron and McCuloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), as giving broad discretion to the executive to choose how to interpret statutes).
211. Chevron, 467 U.S. at 865.
212. Id. at 866.
213. 480 U.S. 421 (1987).
214. Id. at 448 (rejecting the interpretation put forward by the Immigration Judge and BIA).
215. Id. at 447-48 (citations omitted in Cardoza-Fonseca) (quoting Chevron, 467 U.S. at 843 n.9) (internal quotation marks omitted).
216. Id. at 454 (Scalia, J., concurring).
217. Id.
218. See, e.g., Sunstein, Beyond Marbury, supra note 11, at 2604 ("Taken on its face, Cardoza-Fonseca seems to be an effort to restore the pre-Chevron status quo by asserting the primacy of the judiciary on purely legal questions.").
219. See, e.g., United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding that Chevron deference only applies to statutory interpretation where Congress delegates the agency authority to make rules with "the force of law");
220. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (holding that interpretations in opinion letters do not warrant Chevron deference because, like interpretations in policy statements, manuals, or guidelines, they lack the force of law).
221. Mead, 533 U.S. at 221.
222. Id.
223. Mead, 533 U.S. at 233. The Court supported this conclusion with the observations that "Customs does not generally engage in notice-and-comment practice when issuing [ruling letters], and their treatment by the agency makes it clear that a letter's binding character as a ruling stops short of third parties."
224. Id.
225. See, e.g., Thomas W. Merrill & Kristin E. Hickman, Chevron 's Domain, 89 GEO. L.J. 833, 873 (2001).
226. Id.
227. 323 U.S. 134 (1944).
228. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)
229. (quoting Skidmore, 323 U.S. at 140);
230. see also Skidmore, 323 U.S. at 140 ("[T] he rulings, interpretations and opinions of the [agency administrator], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.").
231. Mead, 533 U.S. at 228 (footnotes omitted).
232. 529 U.S. 120 (2000).
233. See id. at 125-26 (holding, in a 5-4 decision, that the Court would not defer to the FDA on the question of whether Congress meant to delegate the agency the power to regulate tobacco as a drug).
234. Id. at 159-60.
235. See id. at 126-27 (noting that the FDA rulemaking that produced the tobacco regulation followed the FDA's receipt of more than 700,000 public submissions, "more than 'at any other time in its history on any other subject'"
236. (quoting Regulations Restricting the Sale and Distribution of Cigarettes, 61 Fed. Reg. 44,396, 44, 418 (Aug. 28, 1996))). The dissent rejected the notion that relative political accountability between an executive agency and Congress made any difference in such a case.
237. See id. at 190-91 (Breyer, J., dissenting) ("Insofar as the decision to regulate tobacco reflects the policy of an administration, it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility. ... I do not believe that an administrative agency decision of this magnitude-one that is important, conspicuous, and controversial-can escape the kind of public scrutiny that is essential in any democracy. And such a review will take place whether it is the Congress or the Executive Branch that makes the relevant decision.").
238. See Gonzales v. Oregon, 546 U.S. 243, 258 (2006) (holding that the Attorney General's interpretation was not due Chevron deference).
239. See Massachusetts v. EPA, 549 U.S. 497, 533-34 (2007) (finding the EPA's refusal to determine whether greenhouse gases cause climate change to be arbitrary and capricious).
240. Gonzales, 546 U.S. at 267
241. (quoting Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001)).
242. 129 S. Ct. 1159, 1164 (2009).
243. Id. at 1163-66.
244. Id. at 1163-64 (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). As Justice Kennedy explained: "The Attorney General's decision to bar an alien who has participated in persecution 'may affect our relations with [the alien's native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.'"
245. Id. at 1164-65
246. (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999))
247. Id. at 1166.
248. Id. at 1166.
249. Id.
250. Id. at 1167-68 (quoting Gonzalez v. Thomas, 547 U.S. 183, 186-87 (2006) (per curiam)). Indeed, Justice Kennedy noted "[t]hese matters may have relevance in determining whether its statutory interpretation is a permissible one."
251. Id.
252. United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., dissenting). There are, of course, some cases in which the Court has pursued a more straightforward application of Chevron.
253. See, e.g., Barnhart v. Walton, 535 U.S. 212, 217-22 (2002) (applying the Chevron two-step test to determine whether to defer to the Social Security Administration's interpretation of a statutory definition).
254. Deborah N. Pearlstein, Form and Function in the National Security Constitution, 41 CONN. L. REV. 1549, 1571-86 (2009).
255. See, e.g., 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 350 (Jonathan Elliot ed., 1968) ("The true principle of government is this-make the system complete in its structure, give a perfect proportion and balance to its parts, and the powers you give it will never affect your security." (quoting Alexander Hamilton));
256. THE FEDERALIST No. 47, at 324 (James Madison) (Jacob E. Cooke ed., 1961) ("The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, mayjustly be pronounced the very definition of tyranny.");
257. see also Mistretta v. United States, 488 U.S. 361, 380 (1989) ("This Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.");
258. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 549 & n.42 (1998 ed.) (citing John Jay for the proposition that separation of powers could help avoid governmental tyranny). The unsupported assertion in Posner and Sunstein's article that "critics and supporters agree that changes in the global environment justify at least some expansion of executive powers,"
259. Posner & Sunstein, supra note 3, at 1210, is particularly striking in this regard. See, for example, infra note 261 for articles by Kim Scheppele and Martin Flaherty taking the opposite view.
260. See Pearlstein, supra note 174, at 1592 (suggesting that detention regimes, for example, may benefit from multibranch participation).
261. Posner & Sunstein, supra note 3, at 1207.
262. Bradley, supra note 11, at 651.
263. See Deborah N. Pearlstein, Finding Effective Constraints on Executive Power: Interrogation, Detention, and Torture, 81 IND. L.J. 1255, 1274-79 (2006) (describing the American military's "professionalism"-that is, "the institutional acquisition and maintenance of a set of technical skills, norms, and ethics"-as a "defining feature");
264. Pearlstein, supra note 174, at 1608 (stating that organization theorists recognize the significant benefits of "strict bureaucratic control, intense socialization, and a highly developed sense of organizational culture" for government structures tasked with preventing high-consequence risk).
265. See U.N. SEC'Y-GEN.'S HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY, at 9, U.N. Sales No. E.05.I.5 (2004), available at http://www.un.org/secureworld/report3.pdf (finding that the biggest security threats facing the world now include "poverty, infectious disease and environmental degradation").
266. Posner & Sunstein, supra note 3, at 1214.
267. See id. at 1205 ("[T]he nature of the relationship with the foreign state, the cultural norms of that state, its legal system and other institutions, its politics, and so forth . .. are factors followed and assessed by the Department of State.").
268. 549 U.S. 497 (2007).
269. Id. at 533-34 (citing Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,931 (Sept. 8, 2003)). The Court went on to reason, [EPA] has offered a laundry list of reasons not to regulate.. .. Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they.. . [do not] amount to a reasoned justification for declining to form a scientific judgment. ... In the Global Climate Protection Act of 1987, Congress authorized the State Department-not EPA-to formulate United States foreign policy with reference to environmental matters relating to climate. EPA has made no showing that it issued the ruling in question here after consultation with the State Department.
270. Id.
271. See Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L. REV. 65, 105-06 (2006) (suggesting that the Hamdan Court might have appropriately deferred to the executive if the executive could have presented its interpretation "as the product of deliberative and sober bureaucratic decisionmaking").
272. See, e.g., United States v. Mead Corp., 533 U.S. 218, 228 (2001) (finding that courts have considered, among many factors, the agency's relative expertise and the "persuasiveness" of its position to decide what deference it deserves).
273. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (" [F]ederal judges-who have no constituency-have a duty to respect legitimate policy choices made by those who do.").
274. See, e.g., Mistretta v. United States, 488 U.S. 361, 421-22 (1989) (Scalia, J., dissenting) (arguing that the Court's holding that the United States Sentencing Commission does not upset separation of powers is an "undemocratic precedent" that could lead to further Congressional delegation of lawmaking to commissions that are not accountable to the political process);
275. Morrison v. Olson, 487 U.S. 654, 731 (1988) (Scalia, J., dissenting) ("[T]he difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.").
276. See Jinks & Katyal, supra note 3, at 1246 & n.58 (questioning the effectiveness of political accountability in the foreign affairs context);
277. Pearlstein, supra note 174, at 1575-79 (noting that the government interest in secrecy surrounding some national security matters may make political checks on the executive that depend on transparency less effective).
278. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 190-91 (2000) (Breyer, J., dissenting);
279. cf. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2331-32 (2001) ("Presidential administration promotes accountability in two principal and related ways. First, presidential leadership enhances transparency, enabling the public to comprehend more accurately the sources and nature of bureaucratic power. Second, presidential leadership establishes an electoral link between the public and the bureaucracy, increasing the latter's responsiveness to the former.").
280. Pearlstein, supra note 174, at 1578.
281. See, e.g., Farina, supra note 17, at 525 (noting tension between Chevron's deference regime and the judiciary's authority to determine statutory meaning).
282. See infra Part II.
283. Bradley, supra note 11, at 650 & n.2 ("[C]ommentators [who express the 'Marbury perspective'] typically frame [the issue of deference in foreign affairs cases] as a choice between two extremes: either the courts in foreign affairs cases enforce the 'rule of law' against the Executive or they abdicate their judicial function.")
284. (citing, inter alia, FRANCK, supra note 38, at 4-5 (1992), and HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 148 (1990) );
285. see also generally Alex Glashausser, Difference and Deference in Treaty Interpretation, 50 VILL. L. REV. 25 (2005) (opposing deference to the executive's interpretation of treaties on formal grounds).
286. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
287. See, e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (describing the President as the "sole organ of the federal government in the field of international relations").
288. Posner & Sunstein, supra note 3, at 1198.
289. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) ("We have often observed, however, that 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.'"
290. (quoting United States v. Phila. Nat'l Bank, 374 U.S. 321, 348-49 (1963)));
291. Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) ("[S]ubsequent legislative history is a 'hazardous basis for inferring the intent of an earlier' Congress." (quoting United States v. Price, 361 U.S. 304, 313 (I960)));
292. see also Cent. Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 185 (1994) ("'[W]e have observed on more than one occasion that the interpretation given by one Congress ... to an earlier statute is of little assistance in discerning the meaning of that statute.'"
293. (quoting Pub. Emps. Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 168 (1989)));
294. United States v. Sw. Cable Co., 392 U.S. 157, 170 (1968) ("[T] he views of one Congress as to the construction of a statute adopted many years before by another Congress have 'very little, if any, significance.'"
295. (quoting Rainwater v. United States, 356 U.S. 590, 593 (1958))).
296. See Monaghan, supra note 24 at 25-26 ("Judicial deference to agency 'interpretation' of law is simply one way of recognizing a delegation of law-making authority to an agency." (emphasis omitted));
297. see also United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) ("[A]dministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law .. ..").
298. For example, in Whitman v. American Trucking Ass'ns, the Court gave voice to delegation concerns in rejecting the notion that an agency could cure an unlawful delegation of legislative power by giving the statute a narrow construction.
299. See 531 U.S. 457, 473 (2001) ("The very choice of which portion of the power to exercise-that is to say, the prescription of the standard that Congress had omitted-would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer."). Beyond this, there seems broad agreement that nondelegation concerns continue to manifest themselves in interpretive canons against delegation. See infra note 238 (discussing the nondelegation canon). There also remain periodic signs elsewhere that the Court has retained an interest in policing formal structural constraints. Since Chevron, the Court has continued to produce decisions insisting that formal lines are drawn between and among the branches.
300. See, e.g., Bowsher v. Synar, 478 U.S. 714, 732-34 (1986) (rejecting a statute through which Congress vested executive powers in an agency official but reserved for itself the power to remove him from office);
301. INS v. Chadha, 462 U.S. 919, 959 (1983) (invalidating the so-called legislative veto of executive agency action).
302. U.S. CONST, art. III, § 1.
303. 5 U.S. (1 Cranch) 137 (1803).
304. Id. at 177.
305. See id. at 165-66 ("By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.").
306. See, e.g., KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 2 (2007) (" [Marbury v. Madison asserted] a strong claim to judicial authority over the interpretation of constitutional meaning.").
307. See, e.g-., John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 116 (1998) ("[L]egislators are the lawgivers ... [and so] courts deciding statutory cases are bound to follow commands and policies embodied in the enacted text-commands and policies the courts did not create and cannot change.");
308. Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 189 (1986) ("In our system of government the framers of statutes .. . are the superiors of the judges. The framers communicate orders to the judges through legislative texts .... If the orders are clear, the judges must obey them.");
309. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 415 (1989) ("According to the most prominent conception of the role of courts in statutory construction, judges are agents or servants of the legislature. ... The judicial task is to discern and apply ajudgment made by others, most notably the legislature.");
310. Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a FactFinding Model of Statutory Interpretation, 76 VA. L. REV. 1295, 1313 (1990) ("Traditional democratic theory suggests that the court interpreting a statute must act as the faithful agent of the legislature's intent.").
311. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 85 (2001) (arguing that in debates leading up to the Constitution's ratification, the Federalists invoked the faithful agent notion to counter Anti-Federalist concerns).
312. Id. at 71.
313. Id. at 91
314. (quoting Schooner Paulina's Cargo v. United States, 11 U.S. (7 Cranch) 52, 60(1812)).
315. Id. at 92.
316. Id. at 95-101.
317. Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 583 (1990);
318. see also John F. Manning, Lessons from a Nondelegation Canon, 83 NOTRE DAME L. REV. 1541, 1553 (2008) ("'A legislator who votes for... a provision .. . does so on the assumption that... what the words mean to him is identical to what they will mean to those to whom they are addressed . .. .'"
319. (quoting Jeremy Waldron, Legislators' Intentions and Unintentional Legislation, in LAWAND INTERPRETATION 329, 339 (Andrei Marmor ed., 1995))).
320. See Monaghan, supra note 24, at 26 ("Judicial deference to agency 'interpretation' of law is simply one way of recognizing a delegation of law-making authority to an agency." (emphasis omitted)).
321. See William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990, 997 (2001) ("[T] he original materials surrounding Article III's judicial power assume an eclectic approach to statutory interpretation, open to understanding the letter of a statute in pursuance of the spirit of the law and in light of fundamental values.");
322. Molot, supra note 21, at 73 (suggesting that Chevron deference renders "[statutory] interpretation a political process").
323. Faithful agent theory may be subject to attack on formal grounds as well, at least from those who conceive of the "executive power" in the foreign relations realm as carrying significant interpretive authority of its own.
324. See, e.g., Sunstein, Beyond Marbury, supra note 11, at 2595 (suggesting that interpreting unclear terms in a foreign relations context may require deference to executive interpretation). This Article returns to such claims in Part III.
325. U.S. CONST, art. II, § 2.
326. See supra notes 79-80 and accompanying text (discussing the Court's focus on the interpretations of foreign treaty parties, in addition to those of the United States).
327. See Sullivan v. Kidd, 254 U.S. 433, 439 (1921) ("Writers of authority agree that treaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals .. ..").
328. See supra Section I.A (citing scholars advancing this view).
329. Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).
330. See supra note 78 and accompanying text.
331. See, e.g., ESKRIDGE, supra note 21, at 117-18 (noting that the Framers expected judges both to "interpret statutes equitably" and to interpret statutes contrary to the legislature's expectations, thereby requiring the legislature to examine the full impact of its enactments);
332. Molot, supra note 21, at 3 & n.2 (describing the " instrumentalist" approach and citing scholarly analyses).
333. See Molot, supra note 21, at 34-38 (discussing the interpretive tools that the Framers believed were available to the judiciary to discern legislative intent).
334. Id. at 42.
335. According to Molot, the prospect of judicial interpretation could provide just the ammunition that a legislator might need to defeat an unjust or irrational political compromise. A legislator might speak in opposition to a proposal that benefits one group at the expense of another, for example, not simply because the provision is unjust or irrational, but also because judges would likely construe the proposed provision more strictly than they would an alternative version that benefits both groups. Regardless of the individual legislator's true motive, the judicial perspective would be wielded in favor of fairness and consistency in the legislative process.
336. Id. at 48 (footnote omitted).
337. See also Molot, supra note 141, at 1301 ("[J]udges nonetheless strive for stability and consistency over time in a way that political officials do not").
338. Molot describes the judiciary's role as follows: When the judiciary draws boundaries between legislative enactments and executive leeway, it provides a benchmark for deliberation in the political process. It tells legislators what they must do to bind administrators and tells citizens what they must do to comply with legislative instructions. By providing such a backdrop for public officials and private citizens, judicial interpretation tends to reinforce legislative authority and the rule of law.
339. Molot, supra note 141, at 1317.
340. See, e.g., JOHN HART ELY, WAR AND RESPONSIBILITY 54-56 (1993) (suggesting that the courts should induce Congress to check a presidential decision to go to war);
341. KOH, supra note 194, at 123-32 (discussing congressional acquiescence to the executive's foreign policy initiatives in the wake of Cold War conflicts);
342. ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 58-60 (1973) (chronicling the early erosion of the legislative check on executive war powers).
343. See U.S. CONST, art. I, § 8 (giving Congress the power, inter alia, to declare war, define and punish offenses against the law of nations, and raise and support armies).
344. See THEODORE J. LOWI & BENJAMIN GINSBERG, AMERICAN GOVERNMENT: FREEDOM AND POWER 289-93 (1990) (describing the effects of executive action vis-à-vis foreign policy on presidential approval ratings);
345. THEODOREJ. LOWI, THE END OF LIBERALISM 146 (2d ed. 1979) ("If the president can revive his major resource, his public following, with almost any international act with which he can clearly associate himself, then he must always be under some pressure to prefer such actions."). As Justice Jackson put it with characteristic eloquence: I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.
346. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Jackson, J., concurring).
347. See, e.g., Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 339 & n.115 (2000) (noting that Congress will legislate in response to judicial decisions);
348. see also William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991) (discussing the phenomenon).
349. See Hamdan v. Rumsfeld, 548 U.S. 557, 594-95 (2006) (stating that the Court's task was to determine whether presidential authorization of military commissions was justified).
350. See id. at 612-13 ("These simply are not the circumstances in which ... a military commission established by Executive Order .. . may lawfully try a person and subject him to punishment.").
351. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended at 10, 18, 28 and 42 U.S.C.).
352. See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 note (2006)).
353. See Bradley & Goldsmith, supra note 23, at 2085-88 (noting that "[c]ourts often rely on past Executive Branch practice to inform the meaning of a federal statute").
354. See id. at 2085.
355. See William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 91 (1988) ("For every case where the Court rhapsodizes about deliberative inaction, there is a counter-case subjecting such inferences to scathing critique. 'To explain the cause of non-action by Congress when Congress itself sheds no light is to venture into speculative unrealities' ...." (quoting Helvering v. Hallock, 309 U.S. 106, 119-20 (1940))).
356. The nondelegation canon disfavors interpretations that would transfer significant swaths of discretionary power from one branch to another. Likewise, the canon of constitutional avoidance instructs the Court to disfavor readings that would threaten rights protected by the Constitution. Often invoked in the form of a clear statement requirement, such canons provide that the Court shall not construe a statute to infringe on constitutional rights or delegate significant power without a clear statement to that effect in the legal text. These canons may prove dispositive in resolving the meaning of a subconstitutional text.
357. See Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 YALE L. J. 64, 79-80 (2008) (arguing that these canons allow courts to constrain congressional action).
358. A number of scholars have discussed the role of so-called normative canons in statutory interpretation.
359. See, e.g., Eskridge & Frickey, supra note 22, at 598 ("A good many of the substantive canons of statutory construction are directly inspired by the Constitution ....");
360. Sunstein, supra note 22, at 2111 ("By using these principles, courts decide cases of statutory meaning by reference to something external to legislative desires ....").
361. See Bradley & Goldsmith, supra note 23, at 2103-06 (arguing against a clear statement requirement on delegation grounds in interpreting the AUMF).
362. The 1969 Vienna Convention on the Law of Treaties, setting forth detailed rules for the interpretation of treaties, has been ratified by 110 nations.
363. See Vienna Convention on the Law of Treaties, supra note 20. The United States has signed but not ratified the treaty.
364. Id. Nonetheless, the U.S. Department of State has on occasion acknowledged the Vienna Convention as "the authoritative guide to current treaty law and practice."
365. RICHARD K. GARDINER, TREATY INTERPRETATION 134 (2008)
366. (quoting Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 308 (2d Cir. 2000)). The U.S. Supreme Court has not seemed much interested in the Vienna approach since the treaty entered into force in 1980.
367. See id. at 133-38 (analyzing whether the Supreme Court's treaty-interpretation practice diverges from the Vienna rules).
368. See David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497, 498-99 (2007) (noting that the U.S. government won less than twenty percent of cases between 1789 and 1838 in which a treaty was the basis of a claim or defense);
369. see also supra subsection I.A.1 (reviewing multiple cases in which the Court asserted independent authority to interpret treaty obligations).
370. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 473 (2001) ("The very choice of which portion of the power to exercise-that is to say, the prescription of the standard that Congress had omitted-would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer.");
371. Mistretta v. United States, 488 U.S. 361, 380 (1989) ("This Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.");
372. Duncan v. Kahanamoku, 327 U.S. 304, 322 (1946) ("Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued.").
373. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77 (1803);
374. see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982) ("The Federal Judiciary was therefore designed by the Framers to stand independent of the Executive and Legislature-to maintain the checks and balances of the constitutional structure .. .."), superseded fry statute, Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 98 Stat. 333.
375. See Monaghan, supra note 24, at 2 ("Marshall's grand conception of judicial autonomy in law declaration was not in terms or in logic limited to constitutional interpretation . . . .").
376. See U.S. CONST, art. III, § 2 ("The judicial Power shall extend to all Cases .. . arising under this Constitution, laws of the United States, and Treaties made . ...").
377. Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773, 782-83 (2002).
378. See, e.g., LARRYD. KRAMER, THE PEOPLE THEMSELVES 105-10 (2004) (noting that departmentalism squares with founding-era ideas about "popular constitutionalism");
379. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 6-32 (1999) (arguing against judicial supremacy in constitutional interpretation);
380. WHITTINGTON, supra note 205, at 30 (noting that Presidents Jefferson, Jackson, Lincoln, Roosevelt, and Reagan articulated departmentalist views) ;
381. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 223 (1994) (arguing that the veto, pardon, and appointment powers, among others, reflect the executive's broad mandate to interpret the Constitution);
382. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 687 (2005) ("[T] he Constitution's grant of executive power, together with the duty faithfully to execute the laws, means that the executive and Congress acting in their own spheres must interpret and apply the Constitution.");
383. Whittington, supra note 247, at 783 n.42 (noting that the concept of departmentalism arose in debates among the Founders).
384. See HENKIN, supra note 4, at 209 & nn.129-31 (describing the ability of legislation to supersede treaty provisions).
385. See supra Section II.B (discussing instrumental interpretation in further detail).
386. Farina, supra note 17, at 497 (quoting THE FEDERALIST No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961)).
387. See id. at 487 ("[T]he Court's vision of separation of powers evolved ... to the more flexible . .. proposition that power may be transferred .so long as it will be adequately controlled.").
388. Id. at 497-98.
389. See, e.g., Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 YALE L.J. 64, 76 (2008) ("[S]hould statutory ambiguity be resolved by courts applying normative canons, as it was previous to Chevron? Or are these the kind of normative questions that should ... be assigned to agency judgment?");
390. see also, e.g., Sunstein, supra note 230, at 315-16 (arguing that to the extent nondelegation doctrine remains of constitutional salience, it is enforced through the deployment of the interpretive canons). As noted previously, such canons have also been explained as a reasonable outgrowth of the faithful agent view of judicial power.
391. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988) ('"[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it."
392. (quoting Hooper v. California, 155 U.S. 648, 657 (1895))).
393. See Bradley & Goldsmith, supra note 23, at 2102-06 (arguing that the Supreme Court has "made clear that delegation concerns are less significant when statutes concern foreign affairs than when they concern domestic affairs").
394. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 473 (2001) ("The very choice of which portion of the power to exercise-that is to say, the prescription of the standard that Congress had omitted-would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer.").
395. Note that Bradley and Goldsmith reach the opposite conclusion on the relevance of the nondelegation canon to AUMF interpretation. See Bradley & Goldsmith, supra note 23, at 2102-06.
396. Medellín v. Texas, 552 U.S. 491, 523 (2008) (quoting Brief for United States as Amicus Curiae, supra note 5, at 5);
397. see also supra subsection I.A.I (discussing Medellín and related cases).
398. Medellín, 552 U.S. at 525 (quoting Brief for United States as Amicus Curiae, supra note 5, at 11) (emphasis omitted).
399. Id.
400. See, e.g., Martin S. Flaherty, Globalization and Executive Power 28 (Apr. 4, 2008) (unpublished manuscript) (on file with author) ("[G]lobalization generally has resulted in a net gain in power not for judiciaries, but for the "political" branches-and above all for executives-within domestic legal systems.");
401. Scheppele, supra note 30, at 3-5 (describing how national executives have used a series of UN Security Council antiterrorism resolutions to expand executive power domestically).
402. 553 U.S. 674 (2008);
403. see also .supra subsection I.A.2 (discussing Munaf).
404. Munaf, 553 U.S. at 702.
405. Id.
406. See id. (finding that habeas petitioners had not successfully raised the claims in the lower courts). Petitioners had argued that transfer would violate their rights under a federal statute and treaty prohibiting the "return" of someone to another state when there is a substantial likelihood he will be tortured.
407. Id. (citing Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681-822, and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, supra note 120).
408. See Pearlstein, supra note 174, at 1572 (arguing that while functional considerations may be relevant in separation-of-powers disputes, clear formal constraints remain important).
409. U.S. CONST, art. II, § § 1-3.
410. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
411. See Bradley & Goldsmith, supra note 23, at 2084 & n.150 (suggesting, inter alia, that the executive might be entitled to Chevron deference).
412. Id. at 2100-06.
413. Id. at 2100-01 (emphasis added) (quoting Loving v. United States, 517 U.S. 748, 772 (1996)).
414. Id. at 2103-04.
415. Id.
416. Loving, 517 U.S. at 771
417. (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935),
418. and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935));
419. see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 327-29 (1936) (upholding the President's delegated authority to impose an arms embargo).
420. 381 U.S. 1 (1965).
421. Id. at 4.
422. Id. at 11.
423. Id. at 17.
424. The other cases in the "passport trilogy," relied on heavily by Bradley and Goldsmith, are likewise unhelpful in advancing the claim that the President's independent constitutional authority has some particular bearing on the Court's role in interpreting foreign relations statutes.
425. In Kent v. Dulles, the Court held that statutes providing that passports may be issued under "such rules as President shall. .. prescribe" did not afford the executive the authority it claimed-namely, the power to deny passports to citizens who appeared to support the Communist Party. 357 U.S. 116, 123, 129 (1958);
426. see also Bradley & Goldsmith, supra note 23, at 2101 (noting that the Kent Court declined to address whether a different analysis would be appropriate if the case had arisen during a war emergency). To the extent one might discern anything about what difference wartime (and therefore "war powers") might have made in the Court's reasoning, it was a difference regarding the treatment of individual rights, not the relative scope of Congress's power to delegate authority or the executive's power to exercise it.
427. See Kent, 357 U.S. at 128 (distinguishing the instant case from the Court's wartime holding in Korematsu v. United States, 323 U.S. 214 (1944), on the grounds that "[n]o such showing of extremity, no such showing of joint action by the Chief Executive and the Congress to curtail a constitutional right of the citizen has been made here"). In contrast, in Haig v. Agee, 453 U.S. 280, 306 (1981), the Court did uphold the President's delegated authority to revoke a passport on the ground that the holder's activities abroad were causing serious harm to U.S. foreign policy. But there, the Court squarely foreclosed the possibility that its delegation analysis was based on an assessment of the President's Article II powers.
428. See Haig, 453 U.S. at 289 n.17 ("[W]e have no occasion in this case to determine the scope of 'the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.'" (quoting United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936))). Rather, the Court's decision was based on a finding that Congress was aware of and, by taking no action over time, implicitly authorized a consistent executive branch practice of denying passports on such grounds.
429. Haig, 453 U.S. at 302-03.
430. Loving v. United States, 517 U.S. 748 (1996), the key case Bradley and Goldsmith cite for this proposition, did not purport to establish a principle of delegation in foreign relations law in general. Rather, the case was narrowly limited to the Court's understanding of the Commander-in-Chief function as including the particular responsibility to take "action to superintend the military ... 'a specialized community governed by a separate discipline from that of the civilian.'"
431. Id. at 772-73 (quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953)).
432. See Sunstein, supra note 230, at 315-16 (arguing that nondelegation doctrine is "alive and well" in the form of substantive interpretive canons against delegation).
433. See sources cited .supra note 230.
434. Whittington, supra note 247, at 782-83.
435. See generally Paulsen, supra note 248 (surveying such arguments in favor of the President's interpretive authority).
436. KRAMER, supra note 248, at 31 (noting that communities once had a "credible interpretive voice when it came to the constitution").
437. Pillard, supra note 248, at 687 (emphasis added) (footnote omitted).
438. Some departmentalists have pointed to the presidential oath of office, for example, as a textual basis for understanding the President as having some independent constitutional responsibility to explain (in service of upholding) the Constitution. That Clause imposes upon the President the duty to "preserve, protect and defend the Constitution of the United States," not the Constitution, laws, and treaties of the United States. U.S. CONST, art. II, §1 (emphasis added);
439. see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 266-67 (3d ed. 2000) (recognizing the importance of the Oath Clause in the departmentalist argument). Other scholars have likewise made arguments grounded in political theory that are tied specifically to the task of constitutional interpretation.
440. See, e.g., KRAMER, supra note 248, at 106-10 (discussing how the three branches of government should reach compromise when their interpretations differ);
441. TUSHNET, supra note 248, at 6-32 (raising various arguments against judicial supremacy in constitutional interpretation).
442. While the Oath Clause may make executive interpretive authority over the Constitution of special significance, the Take Care Clause makes no such textual distinction between different sources of federal law.
443. See U.S. CONST, art. II, §3 ("[H]e shall take Care that the Laws be faithfully executed . ...").
444. See Paulsen, supra note 248, at 222 ("The framers believed that liberty is best preserved where governmental power is diffused .. ..").
445. See, e.g., id. at 221 ("The Supreme Court's interpretations of treaties, federal statutes, or the Constitution do not bind the President any more than the President's or Congress's interpretations bind the courts.");
446. see also Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning'?, LAW & CONTEMP. PROBS., Summer 2004, at 105, 113 ("[A]ll three branches share the responsibility to uphold the Constitution.").
447. U.S. CONST, art. III, §2 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . .. .").
448. U.S. CONST, art. II, § 3;
449. see also, e.g., W. Michael Reisman, Necessary and Proper: Executive Competence to Interpret Treaties, 15 YALE J. INT'L L. 316, 325-28 (1990) (arguing that the executive must inevitably make judgments about what the law requires);
450. Eugene V Rostow, The Reinterpretation Debate and Constitutional Law, 137 U. PA. L. REV. 1451, 1455 (1989) ("[T]he President necessarily interprets and reinterprets every statute and treaty .. ..").
451. See U.S. CONST, art. III (establishing the structure and jurisdiction of the federal courts).
452. Walter Dellinger and H. Jefferson Powell give an example of this concern: In 1800, Congressman Marshall explained to the House of Representatives that the Constitution does not vest in the federal courts the exclusive authority to decide issues arising under the Constitution, laws and treaties; while such issues are by definition questions of law, some of them are "questions of political law," and must be answered by one (or both) of the political branches of the government."
453. Walter Dellinger & H. Jefferson Powell, Marshall's Questions, 2 GREEN BAG 2D 367, 367 (1999)
454. (quoting the Honorable John Marshall, Speech on the Resolutions of the Honorable Edward Livingston, Delivered in the House of Representatives (Mar. 7, 1800), in 4 THE PAPERS OF JOHN MARSHALL 82, 103 (Charles T. Cullen & Leslie Tobias eds., 1984)).
455. U.S. CONST, art. III, § 2.
456. See WHLTTINGTON, supra note 205, at 14 (describing a theory of "fixed departmentalism" that holds that '"allocation of interpretive authority varies by topic or constitutional provision'"
457. (quoting Scott E. Gant, Judicial Supremacy and Nonjudicial Interpretation of the Constitution, 24 HASTINGS CONST. L.Q. 359, 384 (1997))).
458. See Johnsen, supra note 290, at 112 (noting that a few departmentalists argue that the President should choose not to enforce laws if he finds them "constitutionally objectionable").
459. See Paulsen, supra note 248, at 222 (arguing that the President "may refuse to execute (or, where directed specifically to him, refuse to obey) judicial decrees that he concludes are contrary to law").
460. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1362 (1997) (challenging the idea that the courts' interpretations of the Constitution do not bind nonjudicial authorities).
461. See John Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CALIF. L. REV. 851, 869-70 (2001) (book review) (contending that the Constitution imparts full control over treaty interpretation to the President). Although Yoo's position is set forth in the context of treaty interpretation specifically, his textual reading of Article II's Vesting Clause would appear to have implications for statutory interpretation as well.
462. See also Bradley, supra note 11, at 699 (arguing that because the executive has broad constitutional authority of its own with regard to foreign affairs law, there should be little concern that shared authority-even shared interpretive authority-runs afoul of formal constitutional limits).
463. For example, Martin Flaherty highlights the historical deficiencies of Yoo's argument: [T] he framers were virtually of one mind when it came to giving treaties the status of law. .. . The imperative need to make treaties legally binding on both the states and their citizens was widely recognized by 1787. The major consequence of this perception was the ready adoption of the supremacy clause, which gave treaties the status of law and made them judicially enforceable through the federal courts.
464. Martin S. Flaherty, Response, History Right?: Historical Scholarship, Original Understanding and Treaties as "Supreme Law of the Land," 99 COLUM. L. REV. 2095, 2120 (1999)
465. (quoting Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 PERSP. AM. HIST. 233, 264 (1984) );
466. see also Derek Jinks & David Sloss, Is the President Bound fry the Geneva Conventions?, 90 CORNELL L. REV. 97, 194-95 (2004) (noting that Yoo's contention that treaty interpretation is solely within the executive realm is flawed, as the Constitution distributes power among all three branches);
467. Michael P. Van Alstine, The Judicial Power and Treaty Delegation, 90 CALIF. L. REV. 1263, 1276-77 (2002) (arguing, inter alia, that in light of the Framers' understanding of the separation of powers, committing the power to "make" treaties to the executive would preclude vesting the power to interpret them in the same branch).
468. See U.S. CONST, art. II, § 2 ("He shall have Power ... to make Treaties, provided two thirds of the Senators present concur .. ..").
469. Id. art. III, § 2 (emphasis added).
470. See supra subsection I.A. 1 (reviewing treaty-interpretation cases).
471. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941, 947 (2008).