Latham & Watkins Forum—Facts, Pretexts, and Judicial Scrutiny of Executive Power

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Historically, federal courts have deferred significantly to the factual determinations and decision-making processes of the executive branch, especially in the national security context. But as the current administration invokes an expanding set of emergency or extraordinary powers—in efforts to deploy military forces for domestic purposes, to levy tariffs, to deport individuals, to undertake military operations abroad—many of the factual claims supporting these exercises of power have increasingly been contested. Given this trend, how are courts now evaluating contested facts and traditional deference? How should they be? Should judges distinguish between different administrations in their approach? To the extent judicial skepticism of the executive’s facts and decision-making is increasing, what broader implications might that have for government lawyers advising their policy clients or handling civil and criminal cases? What, if anything, is the role for Congress?

Please join us for an expert discussion with leading experts on this pressing and underexplored set of questions that touch at the heart of national security, executive power, and the relationship among the branches of government. 

This event is cohosted by the Reiss Center on Law and Security.

• Christopher Fonzone, Non-Resident Senior Fellow, Reiss Center on Law and Security, NYU School of Law; Former Assistant Attorney General, Office of Legal Counsel, US Department of Justice
• Thomas B. Griffith, Lecturer, Harvard Law School; Special Counsel, Hunton Andrews Kurth LLP; Judge, US Court of Appeals for the District of Columbia Circuit, 2005–2020
• Rebecca Ingber, Professor, Cardozo Law School; Non-Resident Senior Fellow, Reiss Center on Law and Security, NYU School of Law; Former Counselor on International Law, Office of the Legal Adviser, US Department of State

Moderator

• Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law and Faculty Co-Director, Reiss Center on Law and Security, NYU School of Law; Founding Co-Editor-in-Chief, Just Security