Courts Can Influence National Security Without Doing a Single Thing
One of the most persistent fights in the national security arena since the September 11 attacks has been about the proper allocation of power between two branches of government: the Executive and the courts. Specifically, how much authority does and should the Executive Branch have to establish and implement national security policies, and how much oversight can and should courts provide over these policies?
People tend to divide into one of two schools of thought when answering these questions. The first school favors extensive deference to Executive branch national security decisions and celebrates what it sees as a limited role for courts. The Executive, this school contends, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. After all, Alexander Hamilton famously remarked that housing powers in a unitary executive provides the advantages of “[d]ecision, activity, secrecy, and dispatch”—qualities our federal courts simply don’t have.