Institutional Alternatives to Judicial Deference

Abstract

Abstract The civil libertarian approach is defective for the reasons we gave in prior chapters, but elimination of this approach from the field leaves a number of alternatives. The judicial deference approach is one of these alternatives, but there are others as well. In this chapter, we evaluate many of them and defend the judicial deference approach against the challengers. Table 5.1 provides a way to organize the competition. There are two dimensions of disagreement. Some people believe that the president’s emergency powers should be determined ex ante—prior to the emergency—and some people believe that the president’s emergency powers should be determined ex post, or after the emergency begins. Thus, the first dimension concerns the timing of this determination. The second dimension concerns the identity of the decision maker who exercises the emergency powers or determines who exercises the emergency powers. There are three possibilities: the president exercises the emergency powers alone; the president exercises them with the consent of Congress; or—a special case—the president exercises them subject to the ex post consent of the public or some nonofficial decisionmaker, such as a jury.