For Operation Iraqi Freedom it was the immediate threat of Saddam Hussein. For the Emergency Economic Stabilization Act it was the feared effect of the massive credit crisis. These are two examples where immediate threats or dire circumstances created pressure to make time-sensitive and, arguably, hasty decisions. Why? Because the threat from a foreign dictator and the instability of the financial sector both implicate national security. History shows that the policy favoring national security virtually preempts all others, which may be a good thing. However, maintaining national security often results in spillover costs. The solution to this problem may lie within the law of equity. In equity discretion is king and fairness is queen. Recently, the Supreme Court exercised its equitable discretionary powers as a result of the Navy's recent use of active sonar in training exercises off the coast of southern California. Environmental groups believe that the Navy's use of the active sonar causes irreparable harm to various marine mammals in the area. A divided Supreme Court sided with the Navy, reversing the lower court's enjoinment of the Navy's use of active sonar. The Court's main justification: national security. Was this the equitable result?
It appears that the Supreme Court ignored the well-established five-factor test for granting or denying a preliminary injunction. The specifics of the test are not relevant for the purposes of this blog. What is relevant, though, is the Court's refusal to apply each element of that test. Instead, the Court based its decision to side with the Navy solely upon the public interest element. Arguably, basing a decision on public interest alone is OK where that interest is of vital importance. And surely national security meets that standard. So maybe the Court did properly apply the injunction test; the court exercised broad discretionary powers per equity. Looking forward, it's clear the environment has taken a back seat behind economic and national security issues. Under President Obama, however, the environment may squeeze its way into the middle seat.
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