The Uniqueness of Foreign Affairs

This Article attempts to explain and justify the exceptional treatment that courts accord foreign affairs issues under the political question doctrine. For the most part, academic commentators have attacked the political question doctrine, arguing that the doctrine is both incoherent and inconsistent with the Marbury tradition of judicial review. Challenging the conventional academic wisdom, this Article contends that institutional competence considerations continue to warrant broad application of the doctrine in the foreign affairs context. More specifically, this Article argues that the power-based nature of most international policy decisions continues to constrain the power of the courts to adjudicate on foreign affairs controversies. Nonetheless, the mere involvement of foreign affairs in a legal dispute should not automatically preclude judicial review. Rather, this Article suggests an alternative vision of the judicial function in foreign affairs, which I call the balance of institutional competencies approach. This approach envisions a spectrum of judicial authority in foreign affairs, which depends on whether the underlying foreign affairs controversy implicates individual rights or domestic property interests, or whether Congress has legislated on the particular foreign affairs issue in question. When viewed as a device for the proper allocation of institutional competencies in foreign affairs disputes, this Article contends that the political question doctrine is both doctrinally coherent and, in the proper circumstances, normatively attractive. * Bigelow Fellow and Lecturer in Law, University of Chicago Law School. I am grateful to Richard Epstein, Cass Sunstein, Jack Goldsmith, Phillip Hamburger, Adrian Vermeule, Elizabeth Garrett, Edward Swaine, Adam Cox, Jenia Iontcheva, and Adam Feibelman for helpful comments and advice. This article also benefited from comments at a faculty workshop at George Mason University Law School. Finally, I am especially grateful to Uzoamaka Nzelibe, whose advice and encouragement made this Article possible. The Uniqueness of Foreign Affairs 2 INTRODUCTION 3 I. FOREIGN AFFAIRS AND THE EVOLUTION OF THE POLITICAL QUESTION DOCTRINE 7 A. Foreign Affairs Abstention and Deference in the Early Republic ........ 7 B. The Status of the Doctrine in the Modern Era 9 C. Blending the Two Strains of the Doctrine: A Shift Towards an Institutional Competence Approach? 11 D. Flaws in the Court’s Formal Criteria for Abstention in Foreign Affairs 13 1. The Textual Commitment Prong of the Doctrine 14 a. Allocation of Foreign Affairs Powers 15 b. Other Adjudicative Applications 21 2. The Prudential Prong of the Doctrine 26 II. A RESPONSE TO THE CRITICS OF JUDICIAL ABSTENTION IN FOREIGN AFFAIRS 30 A. The Defects of the Internationalist Approach 30 B. The Liberalist Response and its Limitations 36 III. A BALANCE OF INSTITUTIONAL COMPETENCIES APPROACH 39 A. The Comparative Institutional Disadvantages of the Courts 40 1. Obstacles to a Judicial Definition of the Scope Of the Foreign Affairs Powers 40 2. The Judiciary’s Lack of Authoritativeness in Foreign Affairs 52 3. The Costs of Judicial Intervention Outweigh the Benefits 58 a. Assessing the Costs of Judicial Intervention 58 b. Assessing the Purported Benefits of Judicial Intervention 62 B. Demarking the Scope of Judicial Abstention in Foreign Affairs 66 1. The Relationship Between Judicial Abstention and Deference 66 2. Some Implications of the Approach in Contemporary Foreign Affairs Disputes 68 a. Foreign Policy versus Individual Rights 69 b. Judicial Construction of Statutes that Implicate Foreign Policy......... 73 CONCLUSION 77 The Uniqueness of Foreign Affairs 3