parent nodes: foreign relations law | Gonzalez v Reno | international court | judicial review of foreign relations | last-in-time rule | Ming Tai Fire and Marine Ins v UPS | treaty interpretation
judicial foreign affairs deference
In several types of foreign relations law cases, the judiciary may apply a deferential standard of review to the actions of the executive.
Absolute deference
Courts grant absolute deference to the executive's view on issues which are textually committed to Article II. For example, the diplomatic recognition of foreign countries is entitled to absolute deference, since Article II, § 3 gives the President the power to receive ambassadors. Ming Tai Fire and Marine Ins v UPS
Note that absolute deference in effect applies to cases that present political questions, such as the status of treaties. [Goldwater v Carter].
Note also that, in these areas, "governmental action (in the absence of explicit statements by the executive). . . must be regarded as of controlling importance" in determining the status of treaties. Ming Tai Fire and Marine Ins v UPS (looking to the Taiwan Relations Act, which establishes informal relations with Taiwan, as evidence that the US does not recognize Taiwan).
Finally, note that, in the case of an interbranch conflict, this sort of deference would be much harder to apply, and that considerations related to the Steel Seizure Case would instead control.
Extreme deference
The courts will attach "great weight" to the executive interpretations of a treaty. Medellin v Texas (holding that the Vienna Convention is not self-executing, in part through deference to the executive's interpretation); see also [De Los Santos Mora v New York] (deferring to the executive's argument that the Vienna Convention does not create a private right of action under the Alien Tort Statute). Functional arguments support deference, since the executive branch negotiated the treaty, and likely has greater expertise in its application. On the other hand, since valid treaties are federal law under [Article VI]'s Supremacy Clause, it is inconsistent for the judiciary to defer to the executive on some areas of federal law but not to others.
Note, however, that courts will not defer to the executive when there is a "long pattern of erratic treatment on the issue which reflects plain inconsistency on the part of the government." Cf. [De Los Santos Mora v New York] (deferring to the executive's position on the Vienna Convention, which had been upheld throughout multiple administrations).
Chevron deference
See Chevron v NRDC for more information.
Gonzalez v Reno (holding that the INS' interpretation of 8 USC § 1156, which says that "any alien . . . may apply for asylum," to require that only parents can apply for asylum on behalf of their children, deserved deference under Chevron v NRDC, so that Elian Gonzalez's uncle could not apply for asylum on his behalf).
No deference
Courts will not defer to the executive on the the scope of Article I powers, nor on questions more susceptible to judicial review, such as jurisdiction, constitutional standards, the common law, or agency interpretations of law not eligible for Chevron v NRDC deference. Thus, for example, the courts do not defer to the executive on the meaning and application of the act of state doctrine. WS Kirkpatrick Co v ETC Corp (rejecting amicus arguments by the executive for applying the act of state doctrine to a FCPA claim against an American corporation who bribed Nigerian officials).
Note also that courts will not defer to the executive in the case of an interbranch conflict. Cf. Ming Tai Fire and Marine Ins v UPS (deferring to the executive where both Congress and the executive had acted to withdraw diplomatic recognition from Taiwan).