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Hastings Law Journal

Authors

Jonathan Masur

Abstract

The subject of judicial deference to the military in time of war has spawned a rich and variegated literature. The vast majority of these articles have focused upon what one might term "legal deference," or courts' willingness to construe the military's statutory and constitutional authority broadly, while simultaneously narrowing the legal restraints upon its actions. This Article adopts a divergent approach, taking as its point of departure the argument that the modem wartime jurisprudence is defined as much by the manner in which courts treat the executive's factual assertions as the fashion in which those courts have construed the legal limitations and empowerments of those same military actors.

This Article addresses the level of deference courts have applied to the President's and the military's factual determinations during wartime. The Article argues that by overemphasizing both the Executive's "special constitutional role" in military affairs and its comparative expertise at evaluating potential dangers to national security, the judiciary has refused to subject the Administration's factual predicates to meaningful scrutiny, neither demanding substantial evidence before accepting a factual assertion as correct nor examining the logic and rationality behind executive claims of danger and necessity.

This Article proposes employing the closely analogous, though rarely applied, field of administrative law as a novel juridical paradigm for determining the level of deference due the military's wartime factual conclusions. While extant "military" jurisprudence has chained courts to a deferential rubric that does little to safeguard the rule of law against an overzealous or prevaricating Executive, administrative law has constructed a rational framework of factual deference that affords appropriate latitude to administrative agencies' exercise of their expertise and Congress's intention to empower them to utilize that particularized competence -while restraining assessments and activities rendered illegitimate by controlling legal authority. Direct application of administrative law's principles to wartime adjudications holds the promise of supplying a coherent theory of deference to reaffirm the rule of law in a jurisprudential field that has witnessed a slow march away from those core principles.

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