How should courts handle cases that implicate foreign relations or national security? What weight should courts give to the executive branch’s view of the law in these matters? To date, one can identify in the jurisprudence of the U.S. Supreme Court no less than four theoretical approaches—varying by the degree of judicial deference due to the executive—that suggest competing visions about the constitutional role of courts in these areas. Each approach has been criticized fiercely for either abdicating the constitutional duty of the courts or obstructing the nation’s pursuit of its security and foreign policy objectives. Absent a clear principle guiding when to apply each approach, courts invoke these approaches intermittently, generating considerable confusion. Current doctrine is missing a framework for mediating tensions between the four approaches. This Article seeks to fill that gap. It draws from the Margin of Appreciation (MoA), a doctrine international courts, especially in Europe, use widely to calibrate the level of deference owed to the principal decision-maker in separation of powers and human rights issues. Compared to parallel doctrines courts traditionally apply, the MoA offers a sophisticated framework for addressing deference claims by the executive. The doctrine provides courts criteria for optimizing the mode of their review, disciplines judicial decision-making, and reduces costs of judicial errors in matters of national importance. This Article reconstructs the MoA as a domestic law doctrine. It makes the necessary adaptations for “domesticating” the MoA and develops criteria for considering deference claims in a variety of foreign affairs and national security matters. In doing so, this Article demonstrates how a domestic MoA approach can generate more nuanced judicial engagement with foreign affairs, encourage deliberative decision-making by policymakers, and promote interbranch dialogue about the role of legal institutions in the high-stakes areas of foreign affairs and national security.
Elad D. Gil, Rethinking Foreign Affairs Deference, 63 B.C. L. Rev. 1603 (2022), https://lawdigitalcommons.bc.edu/bclr/vol63/iss5/2