Chevron Deference and Foreign Affairs

Abstract

This article considers the relationship between the judicial and executive branches in foreign affairs cases. Traditionally, courts have given broad deference to the Executive branch in cases perceived as implicating foreign affairs. The Supreme Court's explanations for this broad deference have been phrased in sweeping terms, such as its description of the Executive branch as the sole organ of the federal government in the field of international relations. Not surprisingly, academic commentators have been highly critical of the Supreme Court's explanations. The usual conclusion of these commentators is that courts should decide questions of foreign affairs without substantial deference to the Executive branch and, in appropriate cases, should apply this to override Executive branch action. These commentators almost invariably quote v. Madison for the proposition that it is the duty of the courts to determine the law, and they typically describe the deferential attitude of the courts as judicial abdication. I refer to this view as the Marbury perspective. I suggest in this article a different way of thinking about this issue, one that is based on the doctrine in administrative law. By its terms, the doctrine will apply to a growing number of foreign affairs cases, as administrative agencies increasingly confront issues such as whether to comply with international law, whether to apply federal regulations to foreign conduct, and whether and how to incorporate the decisions of international institutions. More generally, I argue that the Chevron is a useful way of thinking about the relationship between the judicial and executive branches in foreign affairs cases. Among other things, the perspective focuses attention on the source of the in question, something that turns out to be especially important in the foreign affairs area, given that it includes a number of non-traditional types of law. In addition, this perspective focuses attention on delegation of authority and thereby highlights claims of independent Executive lawmaking power - claims that often lurk beneath the surface of foreign affairs cases. Finally, the perspective offers a realistic alternative to the extremes of both blanket judicial deference and the pure rule of law approach. This is an attractive alternative, I contend, because it imposes legal constraints on the Executive branch while at the same time taking into account the realities of Executive branch expertise and authority in foreign affairs, the difficulty of drawing a sharp line between foreign affairs and foreign affairs policy, and the increasingly international nature of our administrative state.