The Significance of a Judicial Power to Identify Major Questions and Shield State Secrets for the Future of Foreign Affairs and National Security Governance

Foreign relations and national security law scholars devote significant attention to the expansion of executive power resulting from broad delegations of statutory authority or inaction by Congress and from the considerable deference that courts often afford the executive in cases challenging its actions in the spheres of foreign affairs and national security. Recent decisions of the Roberts Court, however, make clear that scholars should pay just as much—and in some respects perhaps more— attention to the expansion of judicial power. In this essay, I show why by comparing the Court’s statutory analyses in two cases from the first full term of the current six-justice conservative majority and explicating the larger jurisprudential shift that they portend and its import for the future of statutory foreign affairs and national security governance in the 21st century. The vision of the distribution of federal powers that the Court telegraphs in these two decisions—one involving a grant of executive authority in the Clean Air Act and the other a check on executive authority in the Foreign Intelligence Surveillance Act—does not bode well for statutory foreign affairs governance in a democracy and in an increasingly complex global landscape. I use my critique of the Court’s “structural” constitutional avoidance reasoning in statutory interpretation—that is, based on federal separation of powers—to provide a fresh perspective on the role of the Court in foreign affairs and national security governance.