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Foreign Affairs and the Political Question Doctrine

Published online by Cambridge University Press:  27 February 2017

Michael J. Glennon
Affiliation:
University of California

Extract

The unevenness of congressional oversight, the proclivity of executive foreign affairs agencies for violating the law and the traditional responsibility of the courts as the last guardians of the Constitution—all point to the propriety of an active role for the judiciary in ensuring governmental compliance with the law. Specifically, courts should not decline to resolve foreign affairs disputes between Congress and the President because they present “political questions.” The recent case of Lowry v. Reagan illustrates the serious systemic damage wrought by judicial abstention in such disputes.

Type
Distribution of Constitutional Authority
Copyright
Copyright © American Society of International Law 1989

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References

1 676 F.Supp. 333 (D.D.C. 1987).

2 No. 87-5426, slip op. at 1 (D.C. Cir. Oct. 17, 1988).

3 676 F.Supp. at 339.

4 Baker v. Carr, 369 U.S. 186, 217 (1962).

5 676 F.Supp. at 340 (footnotes omitted).

6 See generally A. Bickel, The Least Dangerous Branch (1962).

7 See Franck, After the Fall: The New Procedural Framework for Congressional Control over the War Power, 71 AJIL 605, 640 (1977). See also J. Choper, Judicial Review and the National Political Process 295–97 (1980).

8 Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 7 (1959).

9 See, e.g., Field, The Doctrine of Political Questions in the Federal Courts, 8 Minn. L. Rev. 485, 511 (1924) (“Where no rule exists the courts are powerless to act”).

10 J. Choper, supra note 7, at 263.

11 Id.

12 343 U.S. 579 (1952).

13 418 U.S. 683 (1973).

14 J. Choper, supra note 7, at 295.

15 Two seminal pieces have inspired much of the scholarly reconsideration of the political question doctrine. See Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976); Tigar, Judicial Power, the “Political Question Doctrine,” and Foreign Relations, 17 UCLA L. Rev. 1135 (1970).

16 5 U.S. (1 Cranch) 137, 176 (1803).

17 Henkin, Lexical Priority or “Political Question”: A Response, 101 Harv. L. Rev. 524, 529 (1987).

18 Id. at 530.

19 J. Choper, supra note 7, at 296.

20 Id. at 273.

21 Bowsher v. Synar, 106 S.Ct. 3181, 3191 (1986).

22 5 U.S. (1 Cranch) 137 (1803).

23 720 F.2d 1355 (D.C. Cir. 1983), aff’g 558 F.Supp. 893 (1982).

24 See also Chaser Shipping Corp. v. United States, 649 F.Supp. 736 (S.D.N.Y. 1986) (dismissing damages action in connection with mining of Nicaraguan harbors as political question).

25 Crockett, 558 F.Supp. at 898. The court was referring to the formulation of the Supreme Court in Baker v. Carr, 369 U.S. at 217.

26 No. 87-5426, slip op. at 1 (D.C. Cir. Oct. 17, 1988).

27 369 U.S. at 222.

28 48 U.S. (7 How.) 1 (1849).

29 Crockett, 558 F.Supp. at 898.

30 Redish, Judicial Review and the “Political Question,” 79 Nw. U.L. Rev. 1031, 1060 (1984–85).

31 Baker, 369 U.S. at 217.

32 444 U.S. 997 (1979).

33 “[T]he doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion ….” Id. at 1007 (Brennan, J., dissenting) (citation omitted) (emphasis in original).

34 See generally L. Fisher, Constitutional Dialogues (1988).

35 Sen. Alan J. Dixon responded to arguments concerning the constitutionality of certain legislation with the observation that “it is for the courts, not the Senate,” to dispose of the issue. 130 Cong. Rec. S5297–305 (daily ed. May 3, 1984), quoted in id. at 35.

36 See Glennon, The Good Friday Accords: Legislative Veto by Another Name?, 83 AJIL 544 (1989).

37 462 U.S. 919(1983).

38 See generally Glennon, Investigating Intelligence Activities: The Process of Getting Information for Congress, in The Tethered Presidency 141 (T. Franck ed. 1981).

39 J. Choper, supra note 7, at 286.

40 6 U.S. (2 Cranch) 170, 179 (1804).

41 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

42 “[T]he Supreme Court has never been at a loss to decipher roughly workable standards for the vaguest of constitutional provisions when it so desires.” Redish, supra note 30, at 1060.

43 This idea is elaborated in M. Glennon, Constitutional Diplomacy (forthcoming).

44 Dean Choper, while not directly addressing the “validity of the presidentially-ordered military activities” in Vietnam, J. Choper, supra note 7, at 295, seems to accept the argument that Presidents since the time of Jefferson have sent troops abroad on their own authority over a hundred times, and that those incidents represent constitutionally significant precedents. Id. at 297. Similarly, the court that dismissed as a political question a damages action brought in connection with the mining of Nicaragua’s harbors noted in passing that “the Constitution commits to the Executive Branch the authority to make foreign policy decisions.” Chaser Shipping Corp. v. United States, 649 F.Supp. 736, 738 (S.D.N.Y. 1986).

45 Brief for The Constitutional Lawyers Committee on Undeclared War as Amicus Curiae 76, Massachusetts v. Laird, 400 U.S. 886 (1970).

46 J. Choper, supra note 7, at 298.

47 Baker, 369 U.S. at 215, quoted in id.

48 Champlin & Schwartz, The Political Question Doctrine and Allocation of the Foreign Affairs Power, 13 Hofstra L. Rev. 215, 222–23 (1985).

49 676 F.Supp. 333 (D.D.C. 1987).

50 Id. at 340 (quoting Baker, 369 U.S. at 217).

51 War Powers Resolution, §4(a)(1), Pub. L. No. 93-148, 87 Stat. 555, 555 (1973) (50 U.S.C. §§1541–1548(1982)).

52 For a discussion of other instances in which the doctrine undercuts its own rationale, see Franck & Bob, The Return of Humpty-Dumpty: Foreign Relations Law after the Chadha Case, 79 AJIL912, 951 (1985).

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