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Interpretation Catalysts and Executive Branch Legal Decisionmaking

Written by  Rebecca Ingber

Consider the following scenarios in which the United States government must establish a position on its legal authority to detain in a nontraditional conflict such as that with al Qaeda. First, envision exigent combat circumstances: U.S. military operatives find themselves confronting individuals connected to al Qaeda whom they would like to capture and detain, and must determine the scope of their legal authority to do so. Now imagine this question arises in the context of a major report the United States is due to provide to the monitoring committee for a human rights treaty, explaining its understanding of its obligations under and compliance with the provisions of that treaty. Finally, consider how this interpretation might play out if U.S. officials were first asked to state the government’s legal authority for detention in the context of litigation brought by individuals who allege that the government has unlawfully detained them. Might the executive’s position on its legal authority, or even its willingness to stake out a position, differ depending on which of these contexts first triggers the question for legal decisionmakers? If so, why?

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Each of these scenarios presents an example of what this Article terms an “interpretation catalyst”—a distinct triggering event compelling the U.S. government to consider, determine, and potentially assert an interpretation of its obligations and authority under domestic or international law. Interpretation catalysts exist in countless forms and play a significant and at times decisive role in shaping the executive’s legal and policy decisionmaking processes and ultimate decisions. Interpretation catalysts can drive the executive branch to crystallize a legal view on a matter that is entirely novel; can bring a formerly identified but dormant issue into urgent focus; and can transfer an issue from one decisionmaking forum to another. The resulting processes triggered by these catalysts then have dramatic—and often predictable—effects on the executive’s ultimate position. That position and the catalyst that influences it are all the more important because of the stickiness of executive decisions, and legal positions in particular, once taken. This Article explores the critical role played by interpretation catalysts in influencing the executive’s ultimate substantive legal decisions, including by determining a particular question’s point of entry within the government, framing the task, shaping the interpretive process, establishing the relative influence of the relevant actors, and informing the contextual pressures and interests that may bear on the decision.