Guns, Butter, and Judges: Judicial Frameworks for Cases Implicating Security-Wealth Tradeoffs

L. Rush Atkinson

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Security is not free. To be marginally safer from any external threat, a state often must be willing to pay billions of dollars. The full cost of security goes beyond military budgets: When military action is taken—for example, through a campaign or an embargo—national wealth is often sacrificed in opportunity costs for investment, trade, and other wealth-creating enterprises. Conversely, policies that may stimulate economic growth often do so at the expense of the nation’s ability to defend itself. Consequently, difficult policy decisions arise in the context of what this Editorial calls the security-wealth tradeoff, also known as “guns-versus-butter” decisions or the “power/plenty struggle.”

This Editorial examines how certain judicial doctrines influence executive decisionmaking about security-wealth questions, including the doctrine used in the recent Supreme Court case United States v. Eurodif S.A.1 Eurodif represents the first instance of the Court employing the Chevron administrative law framework in a security-wealth case. The use of Chevron here represents both a break from judicial approaches in previous security-wealth cases and a fundamental change in the Court’s assumptions about foreign affairs. Specifically, the Chevron framework reintroduces the possibility of an independent congressional role in foreign affairs that might restrain the executive branch on certain issues. This doctrinal possibility departs from decades of previous Court opinions in security-wealth cases—dating back to the 1936 case United States v. Curtiss-Wright Export Corp—which presumed the legislative and executive branches to be always in accord regarding foreign affairs.

The goal of this Editorial is threefold: (1) to draw the legal academy’s attention to the security-wealth tradeoff; (2) to emphasize that Eurodif’s framework may represent a new paradigm for security-wealth jurisprudence; and (3) to argue that, at least in the context of security-wealth cases, Eurodif’s embrace of Chevron offers a fruitful new framework.

 
I.

Security and wealth intermingle in a variety of contexts. Often, both ends overlap and can be pursued without sacrificing one for the other; wealth is, after all, a necessary ingredient for modern militaries and serves as the leverage behind embargoes and sanctions against belligerent states. Other times, however, policies that increase wealth are ineluctably obtained at the expense of security, and vice versa. The international sale of firearms, for instance, increases national wealth but also endangers national security because the weapons may be funneled to enemies and used against U.S. citizens or military forces.

In the subset of cases where security and wealth stand at loggerheads, the two variables form what economists call a Pareto frontier, or contract curve. Along this frontier no win-win improvements are possible, such that an increase in security requires a decrease in wealth, and vice versa. This Editorial focuses both on the conditions where a political decisionmaker must select a policy from the points along this frontier and on the manner in which courts influence (1) how policymakers choose to sacrifice one good for the sake of another and (2) which policymakers get to make that choice.

 
II.

Though judges are not tasked with setting the nation’s equilibrium between wealth and security—in the U.S. system, those decisions are left to the political branches—judges indirectly influence the result by imposing procedural rules that allocate decisionmaking responsibility among the political branches. One can identify three different approaches the federal courts have taken in security-wealth cases: (1) traditional formalism, (2) conclusive deference to the executive as exemplified in Curtiss-Wright, and (3) the Chevron administrative law approach used in Eurodif. Each approach affects the relative roles of the political branches in balancing security and wealth, which in turn influences the security-wealth equilibrium selected.

Formalism: The early Supreme Court enforced strict rules requiring congressional authorization for executive action, even when the policies implicated national security. For more than a century after the nation’s founding, the judiciary’s approach to most foreign affairs cases was based on an orthodox conception of separated powers.2 This strain of formalism continued all the way through Youngstown Steel & Tube Co. v. Sawyer,3 when the Court famously rebuffed the executive seizure of an Ohio steel mill.

Special Deference to the Executive: Even while formalism remained the determinant doctrine of the Youngstown Court, real-world events eventually prompted several Justices to reconsider their underlying assumptions about judicial doctrine in security-wealth cases and to question whether the strictures of formalism were workable in a new era. In United States v. Curtiss-Wright Export Corporation,4 Justice Sutherland’s majority opinion propounded a new functionalist theory of foreign policy. Circumstances, Curtiss-Wright argued, required that the executive have flexibility to deal with the “vast external realm, with its important, complicated, delicate and manifold problems . . . .”5 This often required bestowing extraordinary powers on the President, given his unique “power to speak or listen as a representative of the nation.”6

Over the fifty years following Sutherland’s decision, Curtiss-Wright became a talisman for a judicial mindset that discarded formal inquiries into congressional intent due to concerns about the danger of stalling foreign policy and instead presumptively honored executive decisions in security-wealth cases.7 Courts affirmed executive decisions in security-wealth cases even when doing so required creative and sympathetic interpretations of federal statutes to fulfill Justice Sutherland’s second assumption, the presumption of congressional-executive accord.8Though not a monolithic regime, Curtiss-Wright announced a rationale for deference to the executive in security-wealth cases that has been reiterated by Justices for decades.

Administrative Framework: The Court’s recent decision in United States v. Eurodif S.A.9 signaled a third approach to security-wealth cases: the Chevron inquiry used in administrative law. Eurodif came to the Supreme Court after the Federal Circuit struck down the Commerce Department’s enactment of a new tariff on foreign uranium, which the U.S. government argued had serious security implications.10 The Supreme Court granted certiorari and unanimously reversed the lower courts, finding the Commerce Department’s classification of refined products as “good[s]” a permissible interpretation of ambiguous duty statutes.

Eurodif’s holding is, on the whole, both unremarkable and a seemingly expected outcome of a Chevron inquiry into the countervailing duties statute. The intriguing element of Souter’s opinion is the decision to apply Chevron instead of relying on Curtiss-Wright or even a simple application of formalism. Instead of deferring to the “sole organ” rationale, the Court only accepted the Agency’s interpretation after finding the Department offered good analytical grounds as to why uranium processing constituted a good. As explained below, Chevron’s application in foreign affairs may indicate a shift in assumptions about the nature of foreign affairs law dealing with security-wealth cases.

 
III.

Chevron carries implicit assumptions about the role of each branch of government, many of which diverge from the assumptions that underlie Curtiss-Wright. Because the assumptions of Chevron and Curtiss-Wright are irreconcilable, Eurodif may represent a veritable paradigm shift. If Chevron is to be expanded to foreign affairs law, the Court must jettison the logic and language of Curtiss-Wright.

Two different tenets pervade Curtiss-Wright. First, a conclusive presumption of constitutionality arises when the political branches jointly take action abroad. In other words, Sutherland’s opinion rejected the notion of a constitutional ceiling on the federal government’s power when engaged in foreign affairs. Second, Curtiss-Wright counsels the judiciary to avoid searching inquiries into contested governmental actions by presuming accord between the political branches. While the executive and legislature were expected to be at odds on many domestic issues, Sutherland’s opinion conceived of a Congress that automatically deferred to the executive on foreign affairs.

These two tenets of Curtiss-Wright emerge from assumptions (more explicitly drawn out in Sutherland’s earlier extrajudicial writings) that envision foreign affairs as a continuous struggle among states vying for supremacy in a condition of international anarchy. The danger posed by international affairs had significant effects domestically, Sutherland concluded, necessitating a two-world distinction between “our internal and our external relations.” Specifically, Sutherland believed that the threat of enemies abroad quells internal dissent to the point that harmony among important political groups can be assumed—an effect known in politics as the “rally-around-the-flag effect.” This expedites judicial inquiry by permitting a conclusive presumption that the executive is acting in accord with the legislature, but it bypasses any political dissension that may have restrained the executive branch.

Where Curtiss-Wright encourages skirting political disagreement arising in foreign affairs debates, extending Chevron sets jurisprudence on a doctrinal path toward embracing whatever discord exists in setting national policy. Chevron, after all, implicitly acknowledges through its two-step inquiry that political disagreements arise between the executive and legislative branches. Before accepting the executive’s interpretation of the law, for instance, “Chevron step one” requires that the judiciary first look to congressional intent. In this way, Chevron embraces discord among the political branches, thereby balancing decisionmaking between them.

The shift back to a unitary paradigm would have three significant consequences. First, Curtiss-Wright deference was premised on a notion of foreign affairs as driven by concerns fundamentally different from domestic affairs: abandoning Curtiss-Wright’s dichotomy between domestic and foreign affairs law, therefore, undermines the previous rationale for extensive deference to the executive in international relations. While it is common to refer to “Chevron deference,” it is a different kind of deference. Second, extending Chevron to foreign affairs law restores judicial inquiry into congressional intent. Extending the administrative law framework to foreign affairs ultimately means revisiting the role of the legislative branch in foreign affairs, a dimension elided when operating under Curtiss-Wright. Third, if Chevron requires a genuine inquiry into the meaning of a statute—rather than simply presuming the executive’s interpretation to be correct—then Congress is empowered to foreclose certain executive actions that involve the security-wealth tradeoff.11 Unlike Curtiss-Wright, Chevron makes no absolute presumptions about harmony among the political branches.

Because Curtiss-Wright and Chevron rest on such irreconcilable assumptions, courts will have to settle on one theory to the exclusion of the other to be logically consistent. This point has more than semantic value. Advocates of expanding Chevron’s application, for instance, have relied on Curtiss-Wright to support their claims.[12. See, e.g., Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1173–78, 1204–07 (2007) (defending Chevron’s expansion by pointing to Curtiss-Wright).] Others have called for the incorporation of Curtiss-Wright as a “canon of construction” within the Chevron framework.12 Both recommendations run into logical difficulties when one recognizes that the two doctrines perch on different sets of assumptions. Moreover, exploring the differing assumptions of Chevron and Curtiss-Wright highlights the fact that Eurodif’s move to Chevron represents a narrowing of executive discretion in the world of foreign affairs—a rather unexpected result given that the Chevron framework is traditionally considered a deferential approach.

 
IV.

If Curtiss-Wright and Chevron are irreconciliable, then which one should be embraced by the Court? I argue that Chevron is superior for at least four reasons. First, decisionmaking about the security-wealth tradeoff involves difficult questions about state preferences, and the constitutional separation of the purse and the sword powers suggests that the Framers intended this decision to be made by two branches, not one.

Second, many of the institutional advantages of unilateral executive decisionmaking have only marginal importance in the average security-wealth case. Dispatch, for instance, is important in a notable number of foreign policy decisions in which involving other branches will likely slow the ability of the government to respond to immediate foreign threats. But most programs that involve security-wealth decisions do not require the same expediency. Sanctions and other coercive economic measures can take years to have an effect; similarly, the Commerce Department regulations challenged in Eurodif took eighteen months to promulgate and finalize.

Third, many policies implicating national wealth and national security do not have significant effects for many years. Because members of Congress often serve much longer, empowering the legislature in security-wealth cases can help the state select a mix of policies that includes those with deferred payoffs.

Finally, security-wealth cases often require negotiations with another foreign party (whether over the sale of fighter jets or a mutual tariff reduction), and two-branch decisionmaking increases state credibility during these negotiations. When the executive is not empowered to make international agreements unilaterally but rather serves as an agent requiring approval of Congress, he can credibly claim certain concessions are beyond legislative acquiescence. Similarly, administrative decisionmaking, particularly through informal rulemaking, is a transparent process that conveys U.S. intentions in a credible way. This credibility can be valuable as a means of extracting concessions from other states, earning the United States a larger share of any gains from trade.

Only time will tell if Eurodif is the first case of a new Chevron era for security-wealth cases or if Eurodif will go down as an anomaly. But if the former is the case, Chevron will improve foreign policy decisionmaking and return much-needed reflection to the policymaking process

Acknowledgments:

Copyright © 2010 NYU Law Review.

L. Rush Atkinson received his JD from New York University School of Law in 2010.

For helpful suggestions and guidance, I am incredibly grateful to Samuel Rascoff, Stephen Holmes, and David Golove. I also am greatly indebted to the Law Review, particularly the work of Seth Harp, Kristen Richer, Nicole Peles, and Jessica Collins. This Note is dedicated to Carol Cerfoy, a small sign of my eternal gratitude.

  1. 129 S. Ct. 878, 886 (2009).
  2. See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (holding that seizure of ship by blockade, authorized by President but not Congress, violated Fourth Amendment).
  3. 343 U.S. 579 (1952); see also United States v. Guy W. Capps, Inc., 204 F.2d 655, 659 (4th Cir. 1953) (discussing Youngstown), aff’d on other grounds, 348 U.S. 296 (1955).
  4. 299 U.S. 304 (1936).
  5. Id. at 319.
  6. Id.
  7. See, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000); Kolovrat v. Oregon, 366 U.S. 187, 198 (1961).
  8. See, e.g., Crosby, 530 U.S. at 374; Dames & Moore v. Regan, 453 U.S. 654 (1981).
  9. 129 S. Ct. 878, 886 (2009).
  10. The U.S. government emphasized three security implications in its briefs: (1) the decision threatened the Megatons to Megawatts agreement with Russia; (2) it jeopardized the viability of USEC, the only domestic uranium refiner; and (3) it made the United States dependent on uranium importers and put the nation at the mercy of those states.
  11. In other words, Chevron leads to the possibility that (borrowing Justice Jackson’s trichotomy) the executive’s power could be at “its lowest ebb,” and its actions would consequently be “scrutinized with caution.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring).
  12. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2101 (2005).

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