National security

National Security Exceptionalism and the Travel Ban Litigation

By national security “exceptionalism,” we mean arguments that all national security cases as a group should be subject to different analysis than cases not related to national security. For example, courts and commentators sometimes reason that in all national security cases, courts should defer to the executive branch because the courts lack expertise in the field of national security, or because national security issues are uniquely important, and so on.

Since the Supreme Court’s 1936 decision in United States v. Curtiss-Wright, government lawyers have regularly made exceptionalist arguments. Successive presidents have maintained that national security issues are simply too important to be scrutinized by the courts, that courts lack the expertise to review presidential judgments on national security issues, that national security decisionmaking requires speed and secrecy—and that, as a result, courts should stay out of the way entirely or at least afford broad deference to the president.