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Tuesday, February 22, 2005

Not To Quibble...

Publius,

While I basically agree with your last post (as well as Phocion's), I don't think it's necessary to see Chevron deference as somehow an infringement on Marbury. After all, the Court still reserves to Article III tribunals the ultimate power to review. It just recognizes that there are good reasons to trust (within the bounds of reasonability) that agencies might be institutionally competent to interepret the will of Congress as expressed in statutes particular to the respective agencies. A similar deference might well be in order with respect to the ICJ here, but not anything like direct effect or the abdication of the responsibility of Article III Court's to review.

Where Prof. Damrosch's presentation was least helpful to me was in addressing Prof. Bradley's point that, if there is to be review by an Article III court of the ICJ ruling, rather than direct effect, what weight should the Supremes here give to any Executive Branch pronouncement that might be forthcoming? This strikes me as at the heart of their disagreement, since they both seem relatively comfortable with some degree of deference by U.S. tribunals to the ICJ.

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