119 Yale L.J. 270 (2009). 

This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nuanced framework to evaluate deference that considers both degree and form. It identifies two forms of deference: perception deference as an independent decision not to reach an independent conclusion concerning whether and to what extent a threat exists, where the decision is expressed through the adoption of government decisionmakers’ conclusions, and means deference as an independent decision not to reach an independent conclusion concerning the proper means to respond to the perceived threat, where the decision is expressed through the adoption of government decisionmakers’ conclusions. Applying this framework to the Japanese-American cases, this Note concludes the Supreme Court exercised little perception deference and complete means deference, a finding with important implications for four prominent scholarly debates.