Restoring the Global Judiciary

Why the Supreme Court Should Rule in U.S. Foreign Affairs

Martin S. Flaherty

• Publisher: Princeton University Press
• Year: 2019
• Print ISBN: 9780691204789, 9780691179124
• eBook ISBN: 9780691186122
• Topic: Politics & International Relations
• Subtopic: International Law
• Index: Politics & International Relations

Why there should be a larger role for the judiciary in American foreign relations

In the past several decades, there has been a growing chorus of voices contending that the Supreme Court and federal judiciary should stay out of foreign affairs and leave the field to Congress and the president. Challenging this idea, Restoring the Global Judiciary argues instead for a robust judicial role in the conduct of U.S. foreign policy. With an innovative combination of constitutional history, international relations theory, and legal doctrine, Martin Flaherty demonstrates that the Supreme Court and federal judiciary have the power and duty to apply the law without deference to the other branches.

Turning first to the founding of the nation, Flaherty shows that the Constitution's original commitment to separation of powers was as strong in foreign as domestic matters, not least because the document shifted enormous authority to the new federal government. This initial conception eroded as the nation rose from fledgling state to superpower, fueling the growth of a dangerously formidable executive that today asserts near-plenary foreign affairs authority. Flaherty explores how modern international relations makes the commitment to balance among the branches of government all the more critical and he considers implications for modern controversies that the judiciary will continue to confront.

At a time when executive and legislative actions in the name of U.S. foreign policy are only increasing, Restoring the Global Judiciary makes the case for a zealous judicial defense of fundamental rights involving global affairs.

CHAPTER ONE

Introduction

TO APPRECIATE THE role of American courts in foreign affairs, it pays to go abroad. For me, the place to start was Beijing. Just before the turn of the millennium, I had the opportunity to spend a semester teaching law at China University of Political Science and Law, one of the country’s leading law schools. China then was sufficiently open to now-discouraged “foreign influence” that Fada, as it is known in Chinese, welcomed a course in English on U.S. constitutional law. For its part, the Chinese Constitution, or xianfa, could not be raised in court. Nor were courts independent, in any case. Undaunted, however, several brave reformers would soon try, with indirect success, to defend the rights of Chinese citizens by raising the xianfa before judges in specific cases.¹ Fada, whose previous dean had defended student involvement in the 1989 Tiananmen Square demonstrations, presumably knew just what it was doing by inviting an American to share a very different constitutional tradition, one that commanded respect around the world.

After some thought, I decided not to start with Marbury v. Madison,² the great Supreme Court decision with which almost every American constitutional law course begins. Instead I selected Youngstown Sheet & Tube Co. v. Sawyer, the “Steel Seizure case.”³ The controversy arose when President Truman, facing a national steelworkers strike during the Korean War, ordered an emergency federal takeover of steel mills to keep them running. The choice to lead off with Youngstown had in part to do with several iconic opinions. Justice Hugo Black wrote a majority opinion that is a model of what is sometimes known as “strict construction.” Justice Felix Frankfurter’s concurrence remains frequently cited for the idea that how the various parts of the federal government have operated over time serves as a “gloss” on the Constitution’s text. Most importantly of all, Justice Robert Jackson wrote a typically eloquent opinion that has ever since served as a classic framework for thinking about how the judiciary should resolve rival claims of authority between the president and Congress. But starting with Youngstown also had to do with the judgment itself. In essence, six unelected lawyers in black robes told a president of the United States that he was powerless to take an action he thought to be essential for conducting a war. What better case than Youngstown to show the awesome power of the American judiciary to maintain the rule of law, the Constitution, and, with them, basic rights?

Just a few years later, the lessons of Youngstown had apparently disappeared back home. After the attacks of 9/11, the administration of George W. Bush notoriously ordered the use of “enhanced interrogation techniques” on suspected terrorists, including hooding, sleep deprivation, subjection to extreme heat and noise, sexual humiliation, and waterboarding. Nearly all of these methods violated international law, whether human rights prohibitions or the humanitarian laws of war. On any credible reading, they also violated the federal antitorture statute. Many government lawyers, especially in the State and Defense Departments, agreed. Higher-placed executive branch lawyers, however, argued otherwise, including Attorney General Alberto Gonzales, John Yoo, head of the Office of Legal Counsel, and Assistant Attorney General Jay Bybee (now a federal judge). In what came to be known as the “torture memos,” these officials asserted that the techniques in question did not amount to torture under the statute. They did not bother with the international law. More importantly, they argued that even if Congress did prohibit the methods in question, the president had the authority to disregard the command of Congress based upon his authority as chief executive and commander in chief. Nowhere did the memoranda mention Youngstown, nor how the Supreme Court would apply that precedent to a violation of federal law.

Youngstown may have been eclipsed so far as the White House was concerned, but it was not forgotten elsewhere. When the torture memos were leaked to the New York Times, the reaction was swift and stinging. The clear majority of politicians, pundits, and scholars argued that the “enhanced” interrogation techniques amounted to torture in fact and in law, and that a president could not disregard a federal statute making it a criminal offense to engage in the practice. A few disagreed. But at least among legal scholars, nearly everyone criticized the memos for not citing Youngstown, the leading Supreme Court case providing a framework for analyzing executive action to meet foreign affairs threats in light of any relevant steps taken by Congress.⁴ Soon enough, the Supreme Court would rely on the case in a series of landmark decisions that checked other measures ordered by the president in response to 9/11. That Youngstown went missing in action within the executive branch was nonetheless remarkable. Even more striking, the case was nowhere to be found in key lower court decisions after 9/11; this omission helped to uphold the executive’s actions.

This conflicting picture reflected a trend that long predated Youngstown, a trend which that decision sought to stem. Arguments highlighting the president’s advantages in conducting the nation’s foreign affairs are as old as the presidency. Alexander Hamilton, perhaps the most proexecutive of the Founders, enumerated several of these in articulating what a body such as the Senate lacked: “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch.”⁵ Yet such arguments were not originally deployed to subordinate either Congress or the courts, much less to marginalize them. Those attempts were made consistently only as the United States took its place as a global power, then as a superpower, and finally (for now) as a hegemon. By the early twenty-first century, Youngstown notwithstanding, this push for an ever more powerful presidency, both within and outside the executive, had brought matters to a crossroads. With Congress acting as an occasional check at best, the task of reigning in what had long since become the most powerful branch of government would fall to the branch that Hamilton characterized as “the least dangerous”⁶—the judiciary. Yet decades of presidential advocacy and pressure, along with supporting scholarship, had brought the courts to a crossroads as well. The Supreme Court in particular appears especially conflicted. At times, as in the post-9/11 cases, it maintains its traditional role as a restraint on excessive government power. Conversely, and with apparent growing frequency, it bows to the other branches, above all in foreign affairs and, most notably, when the actions issue from the executive.

Scholarship often provides those with a measure of power a theory or theories that can be transformed into practice. So, at least, do many scholars hope. As with modern case law, the current scholarly literature on the courts, separation of powers, and foreign affairs also presents a conflicted picture. Here, however, the balance tilts more decidedly against a robust judicial role. Whatever their differences, this dominant view includes such leading scholars as Anthony Bellia, Brad Clark, Jack Goldsmith, Andrew Kent, Julian Ku, Saikrishna Prakash, Eric Posner, Michael Ramsey, Adrian Vermeule, and John Yoo.⁷ Their works advocate, reflect, or complement the idea of a so-called unitary executive. On this view, the president should wield unfettered power over the executive branch proper, such as the Departments of State, Justice, or Commerce, as well as administrative agencies such as the Food and Drug Administration and the Environmental Protection Agency—all with minimal control by Congress and the courts. More relevant for this study is the corollary that almost inevitably results. The president should rightly and all but unilaterally dominate decision-making in foreign affairs. These views are perhaps not surprising given that a number of these scholars served in the executive branch.

A deceptively numerous yet dissenting set of scholars plays the part of loyal opposition, distinguished yet out of power, or at least less influential, in the face of ever-increasing executive power. Countering the dominant school include such commentators as Bruce Ackerman, Curtis Bradley, David Golove, Daniel Hulsebosch, Heidi Kitrosser, Martin Lederman, Thomas Lee, Julian Mortenson, Deborah Pearlstein, David Rudenstine, Gordon Silverstein, David Sloss, and Beth Stephens.⁸ Yet even their work tends to emphasize Congress rather than the Supreme Court, and still less the lower courts, as the key check.

Still other writers evade easy categorization. No less prominent a figure than Justice Stephen Breyer, in his recent book, The Supreme Court and the World, argues forcefully but incorrectly that the judiciary over time has become a more active constraint in foreign affairs, while at the same time conceding various institutional limitations. ⁹ Harold Hongju Koh, drawing on his varied career in and out of government and the academy, argues for the political branches’ capacity for more principled foreign policy–making, while preserving the judiciary’s capacity to serve as a check when they fall short. On one hand, the executive in particular can and has taken constitutional and international legal constraints more seriously than has been typical of late. In such cases, the need for judicial intervention correspondingly diminishes. Yet, on the other hand, courts can and should step in when the executive flouts those limitations that, among other things, are meant to preserve constitutional balance.¹⁰

It remains at least an impressionistic truth that, based upon the sheer volume of books and articles on the question, skeptics of judicial authority in foreign affairs increasingly prevail. Should the theories they offer truly presage action, the prospect of further judicial retreat in this area appears even more likely. This book seeks to tip the balance in the other direction and reorient informed discussion to take the judiciary’s foreign affairs role more seriously.

That task has become painfully and obviously urgent given the presidency of Donald J. Trump. With a chief executive lacking the knowledge, experience, and temperament of even his most “imperial” predecessors, the pressures on the federal judiciary to abandon the role symbolized by Youngstown have grown exponentially. Just the initial litany of controversial presidential actions, taken or proposed, that implicate foreign affairs is staggering: the “Muslim” travel ban(s), reinstatement of torture, withdrawal from the Paris Climate Accord, nuclear retaliation, the proclamation of an emergency on the nation’s southern border. Not coincidentally, these actions have come hand in hand with unprecedented attacks on federal courts and individual judges, as well as nominations to the federal bench of candidates likely to defer to the executive, especially in foreign affairs. Where 9/11 may have illustrated the judiciary in foreign affairs at a crossroads, the Trump presidency has taken the path of unchecked executive power toward a precipice.

This state of affairs would have shocked, but not surprised, the nation’s Founders. They did anticipate at least some of the forces that brought things to this point. That those forces resulted in the executive dominance we see today they would nonetheless find shocking. This is because the Constitution they framed and ratified embraced the idea of separation of powers precisely out of the fear that concentrated power could become tyrannical. As they refined it, that doctrine in particular contemplated a judiciary with sufficient independence and power to check the states as well as the other federal branches of government. By definition, the exercise of that power would require considering the assertion of some right necessary to create a legal case or controversy.¹¹ In the end, neither separation of powers nor judicial authority came to be applied as fully to foreign as to domestic affairs.¹²

The precedents that the Founding generation established under the Constitution were faithful to this vision. When President Washington sought the interpretation of a critical treaty during a global crisis, he had two brilliant legal advisors, Secretary of State Jefferson and Secretary of the Treasury Hamilton, reach out to the Supreme Court rather than try to avoid it. (Chief Justice John Jay famously declined, but only because the queries did not arise in the context of a litigated case.) When the captain of the USS Constellation, during an armed conflict with France, attempted the common practice of claiming a captured vessel as a prize for himself and his crew, the Supreme Court rejected the claim, and indirectly checked Congress, by holding that interpretation of the federal statute authorizing the capture should not lead to the violation of international law if at all possible. When, during the same hostilities, another navy ship seized a Danish vessel, the Court again held against the nation’s armed services personnel, this time holding the captain liable for any damages caused on the grounds that he exceeded an act of Congress limiting when such captures could take place. When a British subject in the United States during the War of 1812 objected to the executive seizing his property, the Supreme Court similarly voided that action, on the grounds that the president did not have the authority to violate international law.¹³ These episodes stand in stark contrast to modern calls for the judiciary to defer to the “political branches,” and especially the president, in foreign affairs, or better, to stay out of such matters altogether.

This book argues that the Founding generation and, for almost a century and a half, its successors had it right. As Youngstown recognized, however, pressure on the original framework had long been building, and it has only grown more severe since that decision. Among the reasons for this, not least is the nation’s increased engagement in world affairs. After a period of isolation, the United States ascended to the status of global power in the late nineteenth century with its military victory over Spain. World War I confirmed the nation’s place as a power equal to any other, however much it attempted to withdraw from that role. With World War II, the United States rose to the status of superpower, and with the fall of the Soviet Union, it became the sole superpower. As such, it has been engaged in nearly constant armed conflict. These developments have shifted power from the states to the federal government. As Youngstown warned, actors within the federal government tend to shift power to the executive, given all-too-frequent congressional inaction or acquiescence. Fresh insights into modern international relations reveal that the way nation-states currently interact only tends to exacerbate the problem of executive overreach. The result has been precisely the concentration of power in one branch, and the consequent threat to liberty, that the Founders feared.

We have all the more reason, then, to turn the clock backward in order to move forward. Modern concerns about the “imperial presidency” date at least, and not insignificantly, to World War II.¹⁴ Yet in foreign affairs, cold wars spiked by hot wars and succeeded by a “war on terror” have rendered the term “imperial” woefully inadequate to capture the presidency today, especially when the executive is aided and abetted by a subservient Congress. Ironically, the chaos, bluster, and exaggerated assertions of the Trump administration may give pause to those who previously advocated the effective supremacy of the executive as a necessary means to deal with the nation’s challenges in a dangerous world. If so, no shortage of potential reforms exist, including electoral reform to lessen party polarization and stalemate in Congress, reform of the Electoral College, and checks within the executive branch itself.

Yet one more measure is as st...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Chapter 1: Introduction
• Part I: The Supreme Court, Foreign Affairs, and the Founding
• Part II: From Developing Country to Global Power
• Part III: Global Imbalance
• Part IV: Restoration
• Notes
• Index