At Lawfare, Ingrid Wuerth: Chief Justice Roberts: De-Chevronizing Foreign Relations Law. For the introduction:
Eric Posner and Cass Sunstein argue in an article from 2007 that U.S. foreign relations law should be “Chevronized,” meaning that courts should defer to the executive branch in interpreting ambiguous treaties and statutes when international comity concerns are implicated. Curt Bradley had already argued in a 2000 article that Chevron deference should apply in foreign relations cases if a delegation of law-making power by Congress could be presumed or inferred. By contrast, Posner & Sunstein argue for deference even absent any inference of delegation.
Under the leadership of Chief Justice Roberts, the Court has undercut much of the Posner & Sunstein argument. …
And from the conclusion:
All of this provides another reason to eagerly await the Court’s decision in Bond v. United States. If the government loses, which certainly seems possible based on the oral argument, it will cap off a terrible decade for the Executive Branch in foreign relations cases before the Supreme Court. It lost important Commander-in-Chief Clause and habeas cases (Boumediene v. Bush and Hamdan v. Rumsfeld (in which C.J. Roberts did not participate)). It lost an Executive Branch law-making case in Medellin that looked like an easy win based on Garamendi. The protections of the political question doctrine are at least partly gone, thanks to the Chief Justice’s Zivitofsky opinion, effectively gutting Baker v. Carr. The Executive Branch’s unique abilities and needs – for speed, dispatch, deference, control of foreign policy – are all in apparent decline before the Court, especially in cases raising separation of powers issues.
See also her insightful essay The New, New Formalism (from 2008, on Medellin v. Texas).
Posted at 6:02 AM