Chevron Meets Youngstown: National Security and the Administrative State

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, "super-strong" brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive's comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron's relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court's scaling of deference to the Executive after 9/11: Chevron-backers argue that the Court failed to accord sufficient deference to the President, while Chevron-detractors argue that the Court failed to clarify the scope of individual liberties. However, neither side appreciates the role that Justice Jackson's seminal Youngstown concurrence has played in the Court's resolution of recent national security cases. Youngstown makes congressional legislation - not Executive power or individual rights - the central judicial concern in cases pitting individual liberty against Executive power. The post-9/11 Supreme Court, following Justice Jackson, has used judicial review to catalyze congressional action by remanding to Congress policy questions lacking joint political branch support. This dual-branch theory of governance preserves a critical rule-of-law basis for judicial review of national security decisionmaking that Chevron's backers and its detractors overlook.INTRODUCTIONThe past several years have witnessed a burst of scholarship at the intersection of administrative law and national security.1 Many supporters of an administrative law approach to national security argue that courts should apply Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. to the national security context.2 Chevron requires judicial deference to reasonable Executive Branch interpretations of ambiguous statutory language,3 and Chevron-backers argue that times of emergency call for "super-strong" Chevron deference based on a combination of the Executive's institutional expertise and the President's independent constitutional commander-in-chief powers.4 While the post-9/11 period has produced "decisions that can well be understood as administrative law rulings,"5 the Supreme Court has not endorsed a wholesale theory of deference (or non-deference) where presidential power is concerned. Rather than apply Chevron,6 the Court has invoked Justice Jackson's seminal concurrence in Youngstown Sheet & Tube Co. v. Sawyer7 as the critical framework for scaling deference to the Executive's preferred security policies.While Chevron's advocates have frequently promoted the application of broad deference rules even in the absence of congressional legislation,8 scholars at the opposite end of the spectrum question Chevron's application to the national security context.9 According to these Chevron-detractors, even when national security policies are the product of joint political branch decisionmaking, the Supreme Court should "say what the law is"10 and override the collective wisdom of the political branches when necessary.11 While Chevron-backers and Chevron-detractors provide important insights into the role of administrative law as a source of decisionmaking in national security cases, both camps ignore Youngstown at their peril.12Under Jackson's framework in Youngstown, presidential powers are at their apogee when backed by congressional authorization and their "lowest ebb" when contrary to congressional will.13 In between these two extremes are "zone of twilight" cases in which the President lacks a clear constitutional foundation or a basis in congressional authorization.14 The post-9/11 decisions, following Youngstown, have focused less on the issue of deference as such and more on the shared responsibility of the political branches to create legislative schemes regarding national security policy. …