The executive detention cases of the past several years demonstrate a rare but critical assertion of procedural law where the political branches fail to legislate or to properly implement substantive law. This is “muscular procedure”—the invocation of a procedural device to condition deference on political branch integrity. Courts have affected the law of national security in profound ways by requiring the political branches to adhere to a judicially imposed standard of transparency and deliberation. Courts have resolved the merits of individual enemy combatant challenges by rejecting executive branch decisions based on absolute secrecy, innuendo, tentativeness, or multiple levels of hearsay, while affirming executive determinations that satisfy minimal standards of reliability. More broadly, courts have used procedural rules to smoke out and put in check Congress’s lack of oversight of the executive branch and the President’s inadequate interpretation and implementation of authorizing legislation. Although the prevailing descriptive and normative frameworks advocate either blind deference to the collective expertise of the political branches or judicial resolution of large, complex and highly fractious substantive questions, courts have instead put procedure to muscular uses—focusing on the means of coordinate branch decisionmaking, while still allowing the political branches to define the content of the substantive law. This theory of judicial review, which is grounded in the judiciary’s comparatively greater expertise in procedure, has implications beyond the national security context.
Muscular Procedure: Conditional Deference in the Executive Detention Cases,
84 Wash. L. Rev.
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