GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2006

Status

Accepted

Abstract

Based on an examination of the Rehnquist Court's national security cases decided between 1986 and 2005, this essay makes three claims. The first claim is that the Rehnquist Court generally did not interfere with the governmental units that serve as the guardians of national security. The Rehnquist Court almost always rejected challenges to governmental actions when the official responsible justified the actions based on the need to protect the United States from external threats. The second claim is that the Rehnquist Court's hands-off approach generally had favorable consequences. It promoted national security by leaving the subject to the governmental units most competent to address the topic. The Rehnquist Court's practice of noninterference also kept the Court out of the kinds of controversies that in other areas of the law have embroiled the Court in political disputes that have damaged its reputation. The third claim is that the Rehnquist Court's principal legacy to the Roberts Court is one of experience. The Rehnquist Court did not establish a generalized and binding doctrine of noninterference that the Roberts Court must follow. Instead, in case after case, the Rehnquist Court simply found some way to defer to or otherwise uphold governmental choices. Although the Roberts Court now has considerable freedom to choose another approach, it has the benefit of knowing that the Rehnquist Court's practice served both the Court and the nation very well.

GW Paper Series

GWU Law School Public Law Research Paper No. 375; GWU Legal Studies Research Paper No. 375

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