On the Role of Courts in Foreign Affairs

Throughout American history, disputes between the executive and legislative branch, in regard to foreign affairs, have often been arbitrated by the federal court system. The established role of the courts in foreign affairs has been rather transient, where the majority opinion has often been determined by the prevailing ideology of that particular court. It is without question that the function of the courts is to determine the validity of the foreign action taking place by either the President or the Congress. The Framers did not textually outline the appropriate role of the courts in foreign affairs within the Constitution; the sole reason was because they were more focused on the proper relationship between the federal government and the state governments with respect to the individual.

The Constitution does not apportion all foreign policy power into only the executive or only the legislative. Furthermore, there is no constraint on the role of courts within the Constitution. When the courts are called upon to adjudicate America’s constitutional role abroad, there is no established precedent in our founding document as to how the courts should react to these controversies. Hence, the role of the courts in foreign relations must be permitted to deviate from any and all precedent and they should be considered on a case by case basis. It seems that more often than not, judicial deference should have been ruled by court system. For when Congress and the President are in collaboration with the policy that is being pursued, it seems as though the role of the court should only be minimal. Judicial deference is pertinent to the American polity because it sustains the natural balance in the Constitution that the President and Congress are the sole proprietors of foreign relations. Yet, the one instance where judicial deference may never be applicable is when fundamental liberties of citizens are at stake.

It is interesting to note that while the Framers may have wanted to create a system of governance intended to limit the role of the President’s authority, the courts have for the most part, decidedly acted in the President’s favor in foreign decision-making. Perhaps the Founding Fathers had intended for this when they scrapped the Articles of Confederation and instead adopted a Constitution which gave the executive branch a stronger role. The Constitution details the President’s clout as having “executive Power” and that “he shall take Care that the Laws be faithfully executed.”

The Prize Cases, decided in 1862, illustrates how the President first began to accumulate power in foreign affairs in the eyes of the Supreme Court. In April of 1861, President Lincoln ordered a blockade on the southern ports of states that had seceded, even though Congress had not yet issued a formal declaration of war. Four ships were then seized before July 13th, the day Congress formally recognized a state of war. The owners of the ships sued for redress claiming that in the absence of war, the President had no authority to issue a blockade. Justice Grier wrote for the majority opinion, “Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection…will compel him to accord them the character of belligerents, is a question to be decided by him.”

The courts simply decided that the President ultimately has the final authority when it comes to the security of our nation. Even when Congress has not formally recognized the state of war between enemy belligerents, the Grier ruled that “The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.” Here is evidence that the early decisions regarding the courts role in foreign affairs is one which abdicates most of the authority into the hands of the executive branch. In my estimation, the verdict was appropriate because Congress had authorized the President the authority to suppress insurrection in 1795 and in 1807. However, I would also go so far to say that the court had no jurisdiction in hearing this case. The ships seized were found with an enemy and belligerent insurrection of the state. The court should have issued judicial deference in this case and established a precedent that challenging the validity of a proclamation from a belligerency that attacked gives to much credence to those who have attacked. The dearth of a declaration of war from Congress was not relevant in this case because the President had an Act of Congress which allowed him jurisdiction in seizing the ships.

In U.S. v. Curtiss-Wright Export Corp. (1936), the Supreme Court again ruled not only in the President’s favor, but also in the Congress’s as well. The defendants of the case, Curtiss-Wright Export Corp, sold arms to the Bolivian government after Congress passed a Joint Resolution which stated “it shall be unlawful to sell any arms or munitions of war to the countries now engaged in that armed conflict…if the [President] makes a proclamation to that effect…” The armed conflict in question was between that of Bolivia and Paraguay. President Roosevelt issued a proclamation supporting the Congressional Resolution therefore making the sale illegal. Curtiss-Wright Export Corp. claimed that Congress had unconstitutionally delegated legislative authority to the executive branch. Justice Sutherland argued the majority opinion and claimed “It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution” In other words, the federal government has inherent or implied power in the realm of foreign affairs which is not expressly written in the Constitution. Indeed, I not only hold the belief that this decision was appropriate, but I also believe that judicial deference would have been in fact more fitting for this case. Under the circumstances prescribed, whereby the Congress has passed a Joint Resolution and the President, pursuant to the Resolution, issued a proclamation affirming it, the Supreme Court should have deferred the case and not have granted it certiorari.

A comparable case to Curtiss was Hirabayashi v. U.S. (1943). After the United States entered World War II in 1941, President Roosevelt issued an executive order which authorized military commanders to have authority over particular military areas around the United States. Congress then passed legislation making it a crime to violate any order issued by the military commanders. Subsequently, General DeWitt issued a “curfew order” for all “alien Japanese, alien Germans, …” After this order, a University of Washington student, Kiyoshi Hirabayashi, was found to have violated the curfew law and was then convicted of a criminal offense. Here is an instance where the President and Congress have once again acted in joint cooperation to determine the rule of law within the United States.

Applying the measures I have stated in the Curtiss case, it may seem that judicial deference would be the adequate role of the court in this situation. However, this case has two distinctive variables. First and foremost, Hirabayashi is an individual citizen that is arguing for fundamental liberties which our Framers intended us to have not restricted from the government. Second, the case in question revolves solely on the basis of national security during a time of war. Considering the weight of these two factors, the Supreme Court is obligated to hear the case in question. Even if this instance does affirm the government to lawfully convict this man, it is crucial to the sustenance of our republic that all personal liberties be processed accordingly through all three branches of government. Checks and balances are essential here so that not one branch may exert power and influence over the populace. The role of the courts is to not abstain, but to legitimize the other two branches of government by ruling in their favor. If the judicial branch were to defer in the controversy of restricting personal liberties during war, then the precedent set will inevitably expand the power and clout to within the executive and even legislative branches of government.

Although the courts have ruled in favor of the federal government the vast majority of instances, particularly the President, there is the occasion where the President has lost some authority. In Youngstown Sheet & Tube Co. v Sawyer the Supreme Court ruled that President Truman could not seize the steel mills for national security purposes in the midst of the Korean War. In 1950, North Korea invaded the Republic of Korea. President Truman, without a declaration of war, authorized the deployment of troops and air strikes on North Korea for these actions, and received some support from the United Nations. At this time, a crisis and strike was fermenting amongst the steel workers in America. Truman, realizing a strike could hamper the war efforts, issued a seizure of all steel mills into the government’s directives under the guise of national security.

Justice Black wrote the majority opinion and decided that what President Truman authorized was not stated in the Constitution or expressly granted from Congress. Therefore, Truman was unable to take control of the steel mills. Justice Black says in the majority, “The President’s power, if any, to issue the order must stem either from an act of Congress of from the Constitution itself.” Clearly, there is no act of Congress which permits the president to authorize these actions and there is also no provision in the Constitution which allocates this power to the President. While this case is not one which should be decided by judicial deference, it is one which should grant Truman the power to seize the steel mills.

As Justice Vinson noted in his dissent, “But neither did [the Framers] create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.” In short, the role of the court is to allow certain prudence into legal thought when our nation is at war. To rely on the text and statute alone would be to handcuff the President in defending this nation at all costs. The court needs to realize that the Framers could not have foreseen the extraconstitutional powers needed for the executive branch in a growing global world of interconnectedness. Thus, the Supreme Court ruled improperly in this decision, and was liable for the inadequate supplies abroad if our troops were fighting without the necessary components to survive.

A well-thought out concurring opinion was delivered by Justice Jackson. He broke the authority of the President down into three categories: 1) Congress is in agreement, 2) Congress is silent, and 3) Congress is opposed. He believed that this case belonged in the third category. Justice Jackson says, “[The Fifth Amendment signifies] about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Jackson is correct in determining that the role of the court in foreign affairs is to adjudicate under existing rule of law, yet this absolutist viewpoint, as stated earlier, restricts even the most bizarre circumstances which can never be foreseen. It is in this regard that I disagree with Jackson and argue that the courts should allow for leniency and prudence when ruling on the President’s authority during wartime or national security crises.

In Dellums v Bush the District Court under Harold H. Greene’s opinion made the correct decision in judicial deference. Fifty three members from Congress and one Senator requested that the court issue them an injunction forbidding President Bush to authorize an offensive attack on Iraq. Greene did not issue the injunction and argued that, “In short, unless Congress as a whole, or by a majority, is heard from, the controversy here cannot be deemed ripe; it is only if the majority of the Congress seeks relief from an infringement on its constitutional war-declaration power that it may be entitled to receive it.” By all accounts, this was not only the proper decision to make regarding the case, but it was a necessary one as well. Had the court issued the injunction, the legitimacy of the whole of Congress and the President’s authority to be “Commander-in-Chief” of the Armed Forces would be in jeopardy. In fact, roughly one month after the judge denied the injunction, Congress authorized the use of force in Iraq in conjunction with the UN Resolution. This authorization is exactly why Judge Greene did not usurp Congressional authority and deem it relevant when only 53 House Representatives and one Senator had come forth with the request. The judicial deference in this case was appropriate to the responsibilities of the court and upheld what the Framers had intended.

In the instances where the government detains an enemy combatant during a time of war, the Supreme Court has the inherent right to determine the legality of the detainment. During the Civil War, Lambdin Milligan and four other individuals were accused of planning to steal Union weapons and free Confederate prisoners of war in Indiana. They were sentenced to hang from a military court but were able to bring their case to the Supreme Court. The Supreme Court basically ruled that the suspension of ‘habeas corpus’ was legal, yet if there were civilian courts operating upon his detainment he could not be tried by a military tribunal. The role of the court in this case was intriguing. It seems as though they overstepped their boundary and authority by ruling that the suspension of habeas corpus was legal, considering Congress and the President had authorized it together.

The Supreme Court was in fact in its proper jurisdiction when rendering the decision upon where Milligan was to be tried at. Justice Davis argues for the majority, “One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.” Justice Davis is making the argument that a military tribunal is not apt for trial of a citizen when civilian courts are operating. This decision was exactly appropriate for the courts to decide as there was no statue given by Congress and there was no Constitutional provision for it giving the President the enumerated power.

In Hamdi v. Rumsfeld, the role of the court was accurate in its decision to rule and negate judicial deference. Hamdi was a US citizen before being picked up in the battlefield in Afghanistan fighting for the terrorists. President Bush deemed Hamdi an “unlawful enemy combatant” and sought to detain him indefinitely. The Supreme Court held that Hamdi as a U.S. citizen could be held as an unlawful enemy combatant in indefinite detention. However, they also ruled that Hamdi be allowed to challenge the factual basis of his classification as an enemy combatant. Justice O’Connor argues, “Our opinion finds legislative authority to detain under the AUMF once it is sufficiently clear that the enemy is, in fact, an enemy combatant.” The Supreme Court could not have been more correct in its verdict. Establishing the authority for the president to suspend habeas corpus using an interpretive Congressional Resolution (a Resolution which could or could not be relevant to President Bush’s case) was in fact in the perfect jurisdiction for the court to rule a verdict upon. Judicial deference is impossible in this situation because of the differences of opinion in the actual legislative goal of the AUMF, as it was considered irrelevant by four other justices.

The Supreme Court was also correct in establishing its presence in regard to Hamdi being able to challenge the authority of the President in a court of law. It is only solely up to the President when Congress has in fact ruled by statue that citizens’ cannot challenge the validity of their status as unlawful enemy combatants. Since this is not the case, the jurisdiction and role of the federal court system is to determine whether or not the President has the inherent authority to deny Hamdi a chance to refute his charge as an enemy combatant.

Justice Thomas, a dissenter, argues “That is, although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.” It seems as though Thomas is circumventing the outcome of the decision in which Justice O’Connor prescribed. The courts role is not whether to determine if Hamdi is in fact an enemy combatant, but rather to determine upon whether Hamdi can challenge this essential opinion of the federal government. It is a dangerous path to embark upon when the Supreme Court uses judicial deference in determining the outcome of civil liberties for US citizens. The other branches will still be determining Hamdi’s status, only they will be doing so in a court of law where Hamdi is to mount a defense for his actions. The idea of judicial deference in the Hamdi case is absurd and the Supreme Court acted with precise and accurate rulings.

In conclusion, the role of the federal court system should be one based upon some restraint. While it is important to adjudicate controversies to maintain the checks and balances, the court should not assert its role as a foreign affairs dictator when Congress and the President have both granted the policy in collaboration. The Framers did not intend for the judicial branch to exert major foreign affairs decisions, and that is why the roles are distributed between the executive and legislative branch respectively. Judicial deference should play a bigger role in the realm of the judicial system, unless it is of extenuating circumstances of civil liberties that permit the court to mandate a decision and not abstain from granting it certiorari. Judicial deference is vital to preserve the Framers intention on government, and to allow the executive and legislative deal with foreign matters which affect our national security.