The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the issues at stake in the ongoing litigation over President Trump's travel ban executive orders is the extent to which judges should give special deference to the president in cases involving immigration and national security. The administration and its defenders argue for sweeping deference of a kind that would not be accorded in other constitutional cases. Such claims are far from unique to Trump and the travel ban cases. But they are wrong nonetheless. Rejecting special deference does not mean that all national security and immigration policies should be subject to a high level of judicial scrutiny. Many need not be. it simply means such policies should not get a blanket exemption from the kind of judicial review applied to similar policies in other fields.
The usual rationale for judicial deference on national security and immigration is that these issues pose great risks, and that the president and Congress have specialized expertise on them that judges cannot hope to match.
In an excellent recent article at the Lawfare website, legal scholars Ganesh Sitaraman and Ingrid Wuerth critique such "national security exceptionalism" by pointing out that national security policy isn't really all that exceptional:
By national security "exceptionalism," we mean arguments that all national security cases as a group should be subject to different analysis than cases not related to national security. For example, courts and commentators sometimes reason that in all national security cases, courts should defer to the executive branch because the courts lack expertise in the field of national security, or because national security issues are uniquely important…
Unfortunately, these justifications do not withstand logical scrutiny. Take the importance of national security issues. It is true that national security is an important objective and that errors could have serious consequences. But domestic issues such as surveillance, data collection, health care, property rights, and firearms are also of great-or sometimes even greater-significance to the lives and well-being of millions of Americans, and errors could be significant in those arenas. Yet courts routinely adjudicate those cases.
What about the executive branch's expertise in foreign affairs and national security? It is true that courts don't have as much depth in these areas, but courts also have less expertise than bureaucrats in a wide variety of extremely complex issues that they routinely address, including antitrust, financial regulation, public utilities rate regulation, nuclear waste disposal, and insurance markets. In our system of generalist judges, there is no reason to single out "national security" decisions as categorically too technical or otherwise difficult to evaluate. While there might be particular issues within the national security realm that warrant some deference based on the comparative expertise of the executive branch vis-à-vis the judiciary, the broad category most certainly does not.
Sitaraman and Wuerth are absolutely right about national security exceptionalism. Even if we confine the analysis to risks to life, it is far from clear that national security cases on average involve greater danger than many other categories. For example, vastly more Americans die every year because of ordinary domestic crime and traffic accidents than because of war or terrorist attacks by foreigners or immigrants. In 2016 alone, some 40,000 Americans died in traffic accidents, far more than all US fatalities in the War on Terror and the Iraq war combined, and twelve times more than the fatalities from all foreign-born terrorists since 1975.
Like national security policy, traffic safety and domestic law enforcement involve a variety of technical issues on which the legislative and executive branches have greater expertise than courts. Yet the courts regularly decide cases in these fields without granting the government any special deference. For example, a landmark Supreme Court decision struck down a traffic safety law that discriminated on the basis of sex, despite considerable evidence indicating that young male drivers created greater risks than female ones of the same age.
Special judicial deference in the national security field is also sometimes defended on the grounds that national security policy relies on secret information that is inaccessible to the judiciary. But this is far from universally true. As Sitaraman and Wuerth point out:
Some national security decisions need to be shrouded in secrecy, while others do not. Some might require great haste, others do not. At the same time, many ordinary "domestic" issues require secrecy or haste, and yet the Supreme Court has never accepted blanket claims of deference to the president for all domestic policymaking. Courts should accordingly afford the president greater discretion than normal only when based on a specific justification-not on the general principle that all national security cases pose unique risks.
Indeed, a deferential posture toward the executive branch for the category of "national security" or "foreign relations" cases creates a dangerous incentive for the executive to claim that virtually every policy is crucial to national security.
Even in the comparatively rare instances when cases do turn on secret information, courts have established procedures for considering such evidence "in camera," without revealing it to the public. Strikingly, the Trump administration has chosen not to avail itself of such procedures in the travel ban litigation. They have agreed to confidentially reveal the government report supposedly justifying the most recent travel ban order to one of the federal judges considering its legality, but have urged him not to consider the report in making his decision. I suspect that is because the report does not really provide any good justification for the order.
What is true of national security policy is even more true for immigration policy. Here, there is even less reason to believe that either the risks involved or the government's special expertise are any greater than in a vast range of domestic policy fields. True, some immigrants turn out to be criminals or terrorists. But the crime rate of immigrants (including undocumented ones) is actually far lower than that of native-born Americans. The risk that that any given American will be killed on US soil by an immigrant terrorist is about 1 in 51 million per year, much lower than the risk of being killed by a lightning strike.
If domestic crime control policy does not qualify for special judicial deference on grounds of risk and expertise, neither should immigration policy. Similarly, immigration policy does not rely on secret information any more than policymaking in a wide range of other areas.
The tragic history of special judicial deference on national security and immigration casts further doubt on the justification for this practice. In the national security field, special deference led to such now-reviled rulings as the Supreme Court's decisions upholding the persecution and intermment of Japanese-Americans during World War II, and rulings permitting serious abuses of civil liberties during World War I and the early Cold War. In the immigration field, judicial abdication helped empower the government to enact cruel and racist policies, such as the Chinese Exclusion Act and the exclusion of many Jewish refugees fleeing Nazism in the 1930s. By contrast, it is difficult to find examples where special judicial deference on national security or immigration policy led to the upholding of important beneficial policies that would otherwise have been invalidated.
In recent years, special deference in these two fields has been considerably eroded by Supreme Court decisions. For example, the Court showed very little deference to the Bush administration in the various cases challenging the legality of detentions at Guantanamo, such as Boumediene v. Bush (2008). Special deference in the immigration field is also in gradual decline. The courts should repudiate the idea of special deference more fully.
Repudiating a general doctrine of judicial deference in immigration and national security policy does not mean that all government policies in these fields would be subject aggressive judicial review. It only requires that constitutional challenges to government policies in these two fields should get the same treatment as those challenging policies on other issues. Policies that do not impinge on constitutional rights or structural constraints on federal power should still be upheld with little or no difficulty. The appropriate level of judicial scrutiny should be determined not by whether the policy in question involves immigration or national security, but by the degree to which it threatens constitutional limits on government power.
NOTE: The argument for special deference based on risk and expertise is distinct from claims that immigration policy is exempt from judicial review because the Constitution supposedly does not constrain US government actions directed at non-citizens outside US territory. I discussed the shortcomings of the latter argument here, here, and here.