Defference to The Executive in The United States after September 11

Abstract

The deference thesis is that Congress and the judiciary should defer to the executive’s policy judgments during national emergencies. Criticism of the deference theory draws on the analogy of the emergency room medical protocol to argue that emergencies call for rule-bound constraint of the executive rather than deference to it. However, this criticism rests on a misunderstanding of the tradeoff between rules and standards. This paper was proposed as an analysis of deference thesis and its criticism, it has been modified to cover the general issues regarding the thesis and how rules and standards are relevant for national emergencies, it draws upon on the question of how and when the rules applicable during emergencies should be developed and applied.

Keywords

• emergency powers
• constitutional law
• law and politics
• deference thesis
• congress powers