Volume 35

No Damage Without Damage Control: The Judiciary’s Refusal to Engage with the Foreign Affairs Docket

by Elliott Fuchs

A governmental body that cannot do damage-control should not be allowed to do damage in the first place. It is a rather intuitive concept, but it is one that the Framers evidently overlooked when they wrote Article III of the Constitution. Every time a court, particularly the Supreme Court, renders a decision that impacts foreign policy, it acts with the potential to cause international strife, absent the ability to remedy that strife.

Indeed, Supreme Court decisions are impactful. That is why people care so much about who is writing them and what they say. Where foreign sovereigns are involved, there is no doubt that interested international parties are awaiting the decision of the Court, just as the litigants are. Sometimes, in especially rare instances, the foreign sovereign may be a litigant.

But whereas the political branches, especially the executive, have the chance to hedge their foreign policy actions through channels of diplomacy, the Court— after rendering an impactful decision—has no such capability. For example, it would seem inappropriate, or at least strange, for Chief Justice Roberts to reach out to an international leader to explain why that international leader should not be upset by a particular judicial outcome.

A world where the Court would interact with foreign sovereigns would be especially problematic, considering it would open the door to dissenting judges addressing the international landscape. This would undermine—as dissents do— the decision reached by one branch of the United States government.

Not only would such an action by Chief Justice Roberts be politically awkward, but as will be discussed below, doing so would conceivably be a breach of the ethical standards expected of a judge.

As such, we live in a world where the Court can make decisions for the country, but cannot speak for it. As will be explored further below, this is an undesirable arrangement, to put it mildly.

The Framers of the Constitution wanted the judiciary involved in disputes relating to foreign affairs. Article III of the Constitution itself anticipates their involvement, through its reference to maritime, treaties, and ambassadors. The Framers expressed that intent again in the early days of the Republic. Indeed, “[i] n the Washington administration’s view, judicial decision-making did not undermine presidential [foreign] policymaking – it complemented it.” This tendency did not start and end with the Washington administration. On the contrary, “the executive branch has regularly urged the federal courts to determine [international law] as matters of federal law.”

This is a problem. This paper will show that the judiciary—understanding that they are ill-equipped to handle matters of international consequence—have time and again declined to assume foreign policy powers, despite the fact that the courts frequently take power for itself in other contexts. Where cases come before the courts that require adjudication that could impact foreign policy, the courts have routinely crawled into their proverbial shell.

This paper suggests a better approach. Though the courts have instituted doctrines that limit the degree to which they will involve themselves in disputes of international consequence, they should – assuming Congress will not – develop a hardline rule that precludes them from taking on foreign affairs cases. Of course, such a rule requires a definition for the term “foreign affairs case.” The test proposed by this paper will outline a definition.

Part One of this paper will outline a number of reasons why the courts are unequipped to handle foreign policy cases. Part Two will exhibit key cases and decisions throughout the history of the courts that show that judges simply have no desire to adjudicate foreign policy. The goal here, in presenting an array of cases that touch upon a myriad of topics, is to show that the judiciary’s foreign policy aversion is not limited to a specific type or grouping of cases. On the contrary, from – inter alia – the creation of doctrine to statutory interpretation, the courts have routinely expressed a broad and general aversion to cases impacting foreign diplomacy. Like a football team unable to succeed on offense, the courts have consistently “punted” these issues out of their courtrooms, notwithstanding the fact that the political branches have squarely attempted to direct these cases to them. The political branches should cease to seek remedies from the courts where, as here, the courts are not likely to acquiesce.

Finally, Part Three will present, in addition to the necessary definitions, the test the Court should establish when foreign affairs cases come before it and will begin to consider what should happen when the test is not satisfied.

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