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2005-6 Civil Liberties Topic Guide

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Deference Disadvantage

Introduction

The judicial doctrine of Deference contends that the courts should not bet involved in foreign affairs and military decision-making because they lack the appropriate knowledge and timely decision-making capabilities. Harvey Wilkinson, District Court of Appeals Justice for the 4^th Circuit, HAMDI V. RUMSFELD, June 2, 2002, explains:

The order arises in the context of foreign relations and national security, where a court’s deference to the political branches of our national government is considerable. It is the President who wields “delicate, plenary nd exclusive power . . . 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.” And where as here the President does act with statutory authorization from Congress, there is all the more reason for deference. Indeed, Articles I and II prominently assign to Congress and the President the shared responsibility for military affairs. In accordance with this constitutional text, the Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs (http://news.findlaw.com/hdocs/docs/terrorism/hamdirums71202opn.pdf).

This disadvantage argues that if the courts interfere with Presidential authority, military readiness will be disrupted. Since many affirmative this year will close to use the courts, this disadvantage will be of a lot of utility for the negative.

Winning the disadvantage

The link. There are a number of excellent links to this disadvantage. Negatives can argue that the President should be granted deference over foreign policy generally, over matters concerning the military, and over manners concerning immigration. There is excellent evidence on all of these link questions.

Link uniqueness. There is good, recent evidence that the courts are generally deferring to the President in the war on terrorism now.

Impact. The impact stems from the fact that if the courts try to micro-manage the President’s foreign affairs decision-making it will undermine his quick decision-making and make him more hesitant to make important decisions. Arguably, the plan could even set a precedent for greater court involvement in Presidential affairs, triggering a further intrusion into Presidential authority/affairs.

Impact uniqueness. The impact to the disadvantage is readiness, so in order to win the impact, the negative needs to win that the military has adequate readiness levels now.

Answering the disadvantage

Attack the link. Although it is generally difficult to make inroads into the link to this disadvantage, the affirmative can make arguments that the President is usurping his power when engaging in the practice that the plan restricts. You can argue that it is the proper prerogative of the courts to intervene when the President engages in these practices.

Attack the link uniqueness. The link uniqueness generally favors the negative, but you can win arguments that the Court has been unwilling to be totally deferential to the President. For example, in (June 2004) the Courts ruled that enemy combatants have the right to challenge their status as combatants. While these decisions do not represent significant intrusions into the Deference doctrine, they do non-unique negative claims of “any intrusion.”

Turn the link. I do not know of any link turns you can make against this disadvantage.

Answer the impact. The best affirmative approach is probably to impact-turn this disadvantage. You can argue that too much deference by the courts to the President will increase Presidential tyranny and militarism.

Answer the impact uniqueness. There is good evidence that the military is not ready now; that conflicts in Iraq and Afghanistan have significantly drained our readiness.

Judicial Deference Disadvantage

A. UNIQUENESS: CONGRESS AND THE COURTS DEFER TO THE PRESIDENT NOW

CARDOZO LAW REVIEW, March 2005, p. 1385.

Papers case Justice Potter Stewart, in his separate opinion, addressed the role of the press on issues related to the national security. On those matters, he said, the usual legislative and judicial checks on executive power scarcely operate. Congress and the Courts tend to defer to the President.

B. LINK: INTERPRETATIONS OF INTERNATIONAL LAW THAT CHALLENGE THE EXECUTIVE THREATEN DEFERENCE

Jide Nezilbe, Bigelow Fellow and Lecturer in Law, University of Chicago Law School, IOWA UNIVERSITY LAW REVIEW, March 2004, p. 981-2.

For instance, it would be clearly inappropriate for a court to override an executive branch decision not to recognize a foreign state if such a court makes an independent determination that the executive branch's decision did not conform to customary international law. Indeed, even opponents of the political question doctrine, such as Louis Henkin, concede that it would be inappropriate for the courts to invalidate foreign affairs decisions of the political branches on the grounds that such decisions violate international law

C.INTERNAL LINK: NEW DECISIONS COULD UPSET THE DEFERENCE DOCTRINE

John O’Connor, former Junior Attorney General, GEORGIA LAW REVIEW, 2000, p. 309-10.

Of course, the continued vitality of the military deference doctrine is entirely dependent on the membership of the Supreme Court, and it would be a mistake to think otherwise. This reality can be seen from the manner in which the Court established the doctrine. While the Court's increasingly favorable view of military regulations during the mid-1970s could be attributed to improvements in the court-martial system, such as the provision of military judges at courts-martial, this change in attitude is more likely a result of a simple changing of the guard at the Supreme Court. Indeed, one could make a forceful argument that the military deference doctrine primarily is a function of the persuasive abilities of Chief Justice Rehnquist. Then-Justice Rehnquist authored the two most important of the four military deference opinions issued by the Burger Court between 1974 and 1976-Parker v. Levy and Middendorf v. Henry. Chief Justice Rehnquist also authored the most important military deference decisions of the 1980s and 1990s- Rostker v. Goldberg, Goldman v. Weinberger, Solorio v. United States, and Weiss v. United States. Although it would seem a bit impolitic for the Supreme Court to "overrule" the military deference doctrine at any time in the near future, changes on the Court certainly could decrease the ardor with which the doctrine is applied.

D. IMPACT: ENDING DEFERENCE THREATENS READINESS, TRIGGERING WAR

James Hirschhorn, Associate Professor of Law, Rutgers Law School, NORTH CAROLINA LAW REVIEW,1984, p. 237-8.

That is not the case when the armed forces are involved. A personnel practice that contributes to military efficiency fosters the attainment of the goals set by the political branches at the least human and material cost to the armed forces. A court may determine that the practice is inconsistent with constitutional principles as applied to civilian authority this is not unlikely in the light of the assumptions underlying military discipline. If there is an equally effective technique that does not infringe these principles, the court may protect individual rights without loss of military efficiency. If no such alternative exists, the court's intervention raises the cost in lives and material of reaching the government's goals. At some point, the increase will deprive the government of the will or the means to overcome the adversary. If the political branches realize the loss of efficiency, the judicial decision will deter them from pursuing ends they otherwise would. If the loss of efficiency goes unnoticed until war is undertaken, military failure, incomplete success, or success at a higher cost result. In either case, judicial preclusion of military personnel practices based on an incorrect belief that military efficiency will be unimpaired decreases the ability of the political branches to impose their will on another state. At the worst, it permits the imposition of the will of another state on the United States. These consequences cannot be justified by their service to the higher principles of the legal system. The goals that the United States chooses to pursue as a nation among nations are wholly independent of the principles that control the relation of its government to those subject to its laws. As long as the constitutional process is complied with, the courts have no basis to determine that any decision to use force internationally is substantively improper. Moreover, the decision to use force depends in part on the actions of other states, which are entirely outside the control of the legal system. The armed forces are the government's instruments of international coercion. Since the courts cannot assign values to the purposes for which the armed forces will be used, they cannot decide that the United States' inability to reach any particular military goal is outweighed by the enhanced rights of members of the armed forces. A mistaken judicial conclusion that servicemen's individual rights can be protected without impairing military efficiency has the court do inadvertently what it has no standard for doing deliberately. Because the uses to which the armed forces are put cannot be judged by the principles of the legal system, mistaken balancing that impairs those uses is not offset by vindication of the hierarchy of values within the system.

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