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Under the leadership of Chief Justice Roberts, the Court has undercut much of the Posner & Sunstein argument. In Kiobel v. Royal Dutch Petroleum and Morrison v. National Australia Bank, the Court did not defer to the views of the Executive Branch in determining whether to apply the presumption against extraterritoriality. In Medellin, the government maintained that the treaty in question should be read as authorizing domestic implementation by the President, or at least that Congress had acquiesced to such implementation. The Court not only disagreed with this argument, but held that by ratifying the treaty as implicitly non-self-executing, the Senate had also implicitly prohibited the President from making the treaty binding on domestic courts. On this weak basis, the Court went on to hold that the President’s actions belonged in category three of the Youngstown framework.
To be sure, the Roberts Court has at times explicitly relied on the Executive Branch’s fact finding, as in Munaf v. Geren, and its interpretation of treaties, as in Sanchez-Llamas, Abbott v. Abbott, and other parts of the Medellin opinion. Most recently in BG Group v. Republic of Argentina (involving a treaty to which the U.S. is not a party), however, the Court purportedly gave the Solicitor General’s interpretation of the treaty “respect” – and then ruled the other way. The Chief Justice, dissenting, did not even mention the government’s views. And Medellin was a particularly significant blow for the Posner & Sunstein argument because it rejected the President’s claim of constitutional law-making power – reversing course from Garamendi – in tension with their claim that highly relevant “considerations of constitutional structure argue strongly in favor of deference to the executive.” Similarly, the Court’s decision in Zivitofsky v. Clinton scaled back the political question doctrine, application of which often favors the executive, as Posner & Sunstein note in support of their argument.
More fundamentally, Chief Justice’s dissenting opinion in FCC v. City of Arlington suggests that he is skeptical of broad deference to the Executive Branch, at least when the statutory basis for its authority is not clear. Acknowledging that “Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive,” he nonetheless emphasized the constitutional obligation of the court to “police the boundary between the Legislative and Executive" - an obligation potentially at odds with broad deference to the Executive Branch in interpreting congressional delegations to the President such as the AUMF, again counter to Posner & Sunstein.
All of this provides another reason to eagerly await the Court’s decision in Bond v. United States. If the government loses, which certainly seems possible based on the oral argument, it will cap off a terrible decade for the Executive Branch in foreign relations cases before the Supreme Court. It lost important Commander-in-Chief Clause and habeas cases (Boumediene v. Bush and Hamdan v. Rumsfeld (in which C.J. Roberts did not participate)). It lost an Executive Branch law-making case in Medellin that looked like an easy win based on Garamendi. The protections of the political question doctrine are at least partly gone, thanks to the Chief Justice’s Zivitofsky opinion, effectively gutting Baker v. Carr. The Executive Branch’s unique abilities and needs – for speed, dispatch, deference, control of foreign policy – are all in apparent decline before the Court, especially in cases raising separation of powers issues.