Travel Ban

National Security Exceptionalism and the Travel Ban Litigation

By Ganesh Sitaraman, Ingrid Wuerth
Thursday, October 12, 2017, 3:00 PM

The focus of the travel ban litigation has shifted back to the federal district courts after Monday’s decision to dismiss Trump v. Hawaii as moot. As the lower courts take up the new challenges to President Trump’s September 24 proclamation, there is one argument that they should not accept: national security exceptionalism. While it makes for a good sound bite, the claim that the president has exceptional powers just because an issue touches on national security or foreign affairs is not only illogical but also has potentially dangerous consequences. Unfortunately, the Supreme Court’s June 26 per curiam opinion referenced exceptionalist arguments, which might induce lower courts to accept them as the litigation goes forward.

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, and so on.

Since the Supreme Court’s 1936 decision in United States v. Curtiss-Wright, government lawyers have regularly made exceptionalist arguments. Successive presidents have maintained that national security issues are simply too important to be scrutinized by the courts, that courts lack the expertise to review presidential judgments on national security issues, that national security decisionmaking requires speed and secrecy—and that, as a result, courts should stay out of the way entirely or at least afford broad deference to the president. Although exceptionalist reasoning has been accepted by courts in both foreign relations and national security cases, the Supreme Court generally relies less on exceptionalism than it once did, as we argue here

The travel ban litigation contains numerous examples of exceptionalist reasoning. National security exceptionalism has been offered to support a range of doctrinal arguments, including that the cases are entirely nonjusticiable, that the courts should give “utmost” deference to executive fact-finding and conclusions and that the establishment clause must be applied differently to avoid scrutinizing the president’s motives in national security-related matters. Some lower court judges rejected these arguments, while others embraced them. Compare Judge Shedd’s dissent in Trump v. IRAP, where he argues that “National security is a complex business with potentially grave consequences for our country” and Judge Kosinzki’s dissent in Washington v. Trump, arguing that standards which may be appropriate in a domestic context cannot be “plucked . . . and applied to laws affecting immigration” given the “many reasons to resist [this] gross intrusion of judicial power into foreign affairs,” with the ruling in Hawai’i v. Trump, that “[the] concept of ‘national defense’ cannot be deemed an end in itself, justifying any exercise of . . . power designed to promote such a goal…” (quoting United States v. Robel). Some of the exceptionalist arguments are based on national security concerns and some of them are based on “immigration exceptionalism,” which is derived in part from the national security and foreign relations implications of immigration decisions.

The Supreme Court itself referenced exceptionalist arguments in its June 26 per curiam opinion in Trump v. Hawaii, reasoning that “[t]he interest in preserving national security is ‘an urgent objective of the highest order’” (quoting Holder v. Humanitarian Law Project) and that “…the balance tips in favor of the Government’s compelling need to provide for the Nation’s security”. It is unclear what weight the court gave to these statements, but they are not convincing. The government’s October 5 brief on the questions of mootness and vacatur also relies upon what appears to be exceptionalist reasoning. For example, the government cites Reno v. American-Arab Anti-Discrimination Comm., for the proposition that “immigration and deportation policy implicates ‘foreign-policy objectives’ that the judiciary is ‘ill equipped’ to assess.”

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.

The other justifications commonly advanced for national security exceptionalism are equally unconvincing. 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. Presidents have not hesitated to use national defense as a justification for actions traditionally understood as within the ambit of ordinary lawmaking. For example, during the Korean War, the Truman administration famously argued that as commander in chief, the president was allowed to nationalize the steel industry to prevent strikes from halting production. The Supreme Court wisely brushed away this extraordinary attempt to seize power in Youngstown Sheet & Tube Co. v. Sawyer, noting that “Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.” With the empty recitation of “national security” as sufficient for expansive deference, the risk is that it will now be the executive, not the legislature, that, as Madison warned, will “draw[] all power into its impetuous vortex.”

As recently as two years ago, in a case about whether passports can specify the location of Jerusalem, the Supreme Court suggested that it understood the risks of categorically giving discretion to the president in national security and foreign affairs—even as it found in favor of the president in that case. As Justice Kennedy wrote in Zivotofsky v. Kerry, “[t]he Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue.” Chief Justice Roberts, in dissent, made a similar point, noting that “the President’s so-called general foreign relations authority … does not authorize him to disregard an express statutory directive enacted by Congress.”

When the courts address the travel ban litigation again, they should not rely upon an empty recitation of “national security” to tip the balance in favor of the government.  

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