Deference to the Executive

Go read a great post by Unqualified Offerings about the decision of the DC Appeals court backing secrecy for Sept 11 detainees. NOW.

Categorized as Politics

By Zack

Dad, gadget guy, bookworm, political animal, global nomad, cyclist, hiker, tennis player, photographer


  1. It’s a bad decision, isn’t it? Decisions like this are the downside of the American fixation with separation of powers. The American constitutional system leans toward creating checks and balances by giving each branch of government a specified area of power, unlike many Commonwealth countries where checks are achieved by giving the branches broad authority to oversee each other. This means that American courts are far more likely than other common law courts to decline jurisdiction or defer to the executive over “political” issues.

  2. Jonathan: This is an interesting perspective. I hadn’t thought about separation of power in this way.

  3. I guess this is a case when separation of powers gets the better of checks and balances. If so, I have to favor checks and balances over separation of powers as a principle.

  4. This is actually something I noticed while researching my article on judicial challenges to coups. Of the countries in which such challenges took place, one – the Philippines – had an American-influenced legal system, and all the others were British-influenced. The Filipino court took a leaf from the United States Supreme Court’s book and held that the legality of a government was a “nonjusticiable political question” – in other words, that it was something the court was not qualified to decide. When the same argument was presented in some of the Commonwealth courts, the judges made short work of it; some of them, in fact, were quite offended at the idea that some controversies were beyond the power of the courts to decide.

    The idea of the “political question” has been a hallmark of American judicial culture since the 1840s and has become part of the separation of powers doctrine. American judges tend to believe that there are some issues that are inherently political and therefore within the exclusive competence of the executive or legislature. Matters of war and national security are often included among these issues. The courts are, of course, supposed to step in when the government acts unconstitutionally, but separation of powers often makes them shy about doing so. I think A-M got it exactly right – in this case, separation of powers won out over checks and balances. I also agree that, in case of doubt, checks and balances should ideally prevail.

  5. Jonathan: Now that you mention it, in Pakistan (where the legal system is based on the British) the courts have always been asked to decide on coups and they have always stepped up to the task. Their overall record is mixed as they have validated coups in a number of cases. Anyway, when General Musharraf overthrew the previous government and suspended the constitution, he promulgated a provisional constitutional order which made everything related to the coup outside the scope of the judiciary. However, that did not stop the Supreme Court from taking on a case against the coup. They did decide to validate his rule though.

  6. Eric Muller has blogged about a case in which the US Supreme Court has been deferential to executive powers in foreign affairs:

    But the Court instead chose to infer—to read into the executive agreement—preempting provisions that were not actually there, and this out of fealty to the Court’s extremely deferential stance toward the president’s powers to run the nation’s foreign affairs.

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