The Judiciary, the Constitution and US Foreign Policy The Judiciary, the Constitution and US Foreign Policy This talk will examine the relationships between the United States Federal Judiciary, the United States Constitution, and American Foreign Policy. It will proceed in three parts. We will begin with an overview of the role and structure of the judiciary within the United States political system, and a discussion of the importance of the Supreme Court within that system. The second part of the talk will examine the relationship between the Constitution and foreign policy in three subsections. These are: (a) the institutional arrangements created by the Constitution; (b) the use of the Constitution as a foreign policy tool; (c) the judicial involvement in foreign policy via rulings on constitutional questions. Looking at the importance of the “separation of powers” for American foreign policy, we will consider the institutional relationships that inform foreign policy development and examine historical instances of tensions related to these relationships. We will explore the ways in which the Constitution and Supreme Court rulings have been used (and not used) to shape and further foreign policy goals, considering in particular the use of Brown v. the Board of Education during the Cold War. The ways in which the Judiciary have and have not intervened in foreign policy will also be explored, focusing on among other things, the Supreme Court’s rulings on Guantanamo Bay. The final section of the talk will discuss current issues in this area, including the role of the Judiciary in overseeing intelligence collection, the usage of drones, and cases that are currently before the Court. The Constitution in Foreign Policy - The Constitution as an act of foreign policy - Creation of foreign policy powers under the Constitution Regarding the role of the Constitution in foreign policy the first thing worth considering, is that the Constitution itself was – in its initial creation – both an act of foreign policy, and was intended to enable the United States to undertake foreign policy. It was an act of foreign policy in that it sought to create a free trade zone, single currency, and coordinated foreign policy for what had been 13 independent states. The Constitution itself, in enumerating the powers of the new legislative body, sets out precisely the authority required for the integration of 13 distinct economies: a national system of post offices and post roads, a national currency, a national system of copyrights and patents, control over duties and excises, rules of naturalization, a monopoly on treaty-­‐making power, and a national military. And through the Constitution the new national government gained the capacity to enact foreign policy. Textbook histories often stress the instability that disagreements between the states was creating as the proximate cause for the meeting at Philadelphia in 1787 to draft a new Constitution, but revisionist historians are now pointing to the deterioration of international relationships as an important motivation for the creation of a national government. Initially confident that great profit could be derived from – in the words of James Wilson [a central figure in early American politics, and eventually an associate justice of the Supreme Court] – “uniting the Land in America with the Capital and Labour brought from Europe,” American elites invested heavily in American land. But following the War of Independence, the expected flood of European investment did not come. European investors baulked at the lack of stability in the former colonies, and the inability of the governments to ensure the repayment of war debts. The historian Terry Bouton has noted that by 1787 the word “America,” was being used in France to denote all forms of bad investment. The new Constitution was seen as a balm to this ailment – Wilson believed its ban on paper money would ensure America remained at peace with foreign nations. The Constitution also sought to ensure that the commitments made by the US government to foreign states could not be easily revoked, or overturned by popular pressure. To this end, the Constitution made treaties entered into the supreme law of the land. In John Jay’s words, a leading advocate of the Constitution – the ratification sought to ensure that treaty making powers were justifiably removed from the legislative assemblies: “[Treaties] are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.” The Constitution sought then, to position the US government to undertake effective foreign policy. And in the framework it created for the new government, it put in place the broad mechanisms of foreign policy governance. The US Constitution is associated in with Montesquieu’s ideas of separation of powers, but in truth its contribution to political theory was to add to this idea a series of checks and balances – mechanisms of overlapping power so that no branch of government could act against the others without sanction. In this vein, while the Supreme Court can rule on the constitutionality of legislation, it relies on Congress for its structures and funding, and on the President for nomination to the federal bench. The process of foreign policy making is shaped by this. Under the Constitution the President has the power to appoint ambassadors, negotiate treaties, and command deployed military forces. But he requires the approval of 2/3 of the Senate for such appointments, and the treaties he negotiates are not binding until receiving a similar approval from the Senate. Similarly, Congress retains the right to declare war – and since 1973 the President can only deploy troops for 60 days without a declaration of war or authorization of force from Congress. The division of authority for foreign policy under the Constitution has, as you might expect, resulted in conflicts over jurisdiction. Starting in the early Republic conflicts between the President and Congress have emerged over executive prerogative. Interestingly though, the Supreme Court has been largely absent from these conflicts. While a decisive third branch in domestic policy debates, the Court has been largely silent on big questions of foreign policy. Often its role is associated with the ruling in United States v. Curtiss-­‐Wright Export Corp (1936), in which the Court provided for widespread authority for the President in the realm of foreign affairs. Nonetheless, as we shall see it does have a presence in these debates – and some scholars suggest that its role is growing. - The Constitution as a tool of foreign policy o Model for other constitutions – Dahl, Limited Influence o Treaty Power delays – Kyoto o Brown v. Board of Education (1954) – Propaganda Beyond its existence as an enabler of foreign policy, the Constitution can also be considered as a tool of foreign policy. One option for regarding the Constitution as such would be the use of it as a model for other national constitutions. However, writing in on this possibility the political scientist Robert Dahl noted that “among the countries most comparable to the United States and where democratic institutions have long existed without breakdown, not one has adopted our American constitutional system.” A second possible understanding of the Constitution as a tool of foreign policy, comes from the use of the constitutional structures as a point of negotiation. The knowledge that the Executive can not commit the United States to treaties provides the president’s representatives with the ability to delay and parry during negotiations with other countries. To take a famous example, the Senate’s refusal to ratify the 1997 Kyoto Pact on greenhouse gases was widely known during the negotiations and acknowledged by President Clinton’s supporters at the time of negotiation. While the evidence is far from clear, at least one negotiator at Kyoto claimed that “There were a number of concessions given to the Americans ― that was one way the negotiators tried to get the United States to accept the agreement. It is quite possible that Byrd–Hagel [the resolution in the Senate that signaled opposition to the protocol] was intended as a bargaining chip, but this does not mean that it was not sincere.”1 Another said “Byrd–Hagel was clearly a bargaining chip and it was used.” 1 Why the United States did not become a party to the Kyoto Protocol: German, Norwegian, and US perspectives, (Jon Hovi, Detlef F. Sprinz & Guri Bang) European Journal of International Relations 18(1) 129–150 – 138-­‐139 A clearer cut model of the Constitution as a tool in foreign policy comes in its use as an instance in the shaping of the United States’ perception abroad. The lofty commitments of the US Constitution’s preamble – and more crucially those of the Bill of Rights – provide the United States with valuable assets. One moment in which this potential has been most extensively utilized relates to the 1954 decision in the case of Brown v. the Board of Education. In this case the Supreme Court ruled that segregated schooling was unconstitutional, finding that the Equal Protections guaranteed by the 14th Amendment to the Constitution could not be met by the provision of “separate but equal” facilities to different races. The decision was a milestone in American race relations, but it was also of great significance to the foreign policy of the United States. At the time, the racial inequality within the United States was a concern for foreign policy actors, who feared that it inhibited overseas support of the United States in the Cold War. President Truman responding to these issues in 1948 stated that “If we wish to inspire the peoples of the world whose freedom is in jeopardy… we must correct the remaining imperfections in our practice of democracy.” When the Supreme Court moved to do just that in 1954, Voice of America broadcast the decision and analysis of it within an hour, and remained on that theme for several days. A concerted effort was made to place articles reporting the decision in local newspapers throughout the world. The State Department contacted embassies throughout the world to inform them of how to manage the news. However, despite these instances, the Constitution’s influence on foreign policy is more often felt through the manner in which the Supreme Court comes to be involved in these policy areas. Before turning to that, I’d like to offer a brief overview of the federal judicial system to make sure everyone is on the same page. The Role and Structure of the Judiciary within the American Political System - Origins of the Federal Judiciary o The Constitution o Judiciary Act of 1789 o Marbury v. Madison (1803) – Judicial Review The United States federal judiciary owes its creation to the US Constitution. Drafted in 1787 and ratified in 1788, the Constitution creates three branches of the federal government, the Legislative, the Executive, and the co-­‐equal Judiciary. However, Article 3, which lays out the structure of the federal judiciary is markedly brief – providing for a supreme court and the possibility of inferior courts when creation by congressional statute. In reality then, the form of the current federal judiciary owes a lot to the manner in which Congress initially opted to exercise its authority in this area. The Judiciary Act of 1789 created a Supreme Court of five associate justices and a Chief Justice. It also divided the country up into 13 districts and appointed a district judge to each. Between the level of these districts and the Supreme Court were 3 circuits. At the Circuit level, a district judge joined by two Supreme Court justices comprised an appellate court. As such, the Act created the three levels of federal judiciary that exist today. The Act also crucially assigned powers between the courts, including assigning to the Supreme Court the power to issue Writs of Mandamus. This seemingly insignificant grant of power would be crucial 14 years later in the case of Marbury v. Madison. This landmark case, decided in 1803, determined that the Congress had violated the Constitution in granting the Supreme Court the ability to issue Writs of Mandamus – writs that compel government officials to act – as this would be a judicial act that denoted originary, not appellate authority. Soaked in the partisan battles of the early Republic, the decision nonetheless asserted – and is often understood to have established -­‐ the authority of the Supreme Court to review statutes and rule them unconstitutional if in conflict with the Constitution itself. - Current Structure of the Federal Judiciary o Tripartite structure & case load o Routes of Appeal o Composition of the Court From this basic structure – 3 levels of court, each appellate to the one below, with the Supreme Court positioned to rule on the constitutionality of statutes – we have the contemporary federal judiciary albeit with some important developments. The first is that the Supreme Court now has 9 members – one chief justice and 8 associates. These justices no longer “ride circuit” – the circuit courts of appeals are staffed by circuit court judges. And the original 13 district courts have grown to number 94, with over 670 judges attached to them. Alongside this, each state has a judiciary system – and from which cases can be appealed into the federal system should a constitutional question arise. Cases – for the most part – travel up through the three levels of court on their way to the Supreme Court. The circulated handout shows the distribution of these cases for XXXX. As you can see, although the federal judiciary handles XXX cases each year, only a small proportion make it to the Supreme Court. The cases that do, are selected on the basis of a grant of Certiorari [Talk through handout]. A decision by the Supreme Court is regarded as final, and on constitutional questions, the Court has asserted a doctrine of judicial supremacy since 1958, and the case of Cooper v. Aaron. Judicial Supremacy is the idea that the Supreme Court’s rulings on the constitutionality of government action represent the final word on such matters. In reality, there is nothing to stop Congress re-­‐asserting a statute found unconstitutional by voting it through again. Check up on this behavior. The requirement of 4 justices to approve the selection of a case has importance given the make up of the Supreme Court. Justices are nominated by the President when a vacancy arises, and approved by the Senate. While every President hopes to shape the Supreme Court with his nominees, since at least the 1980s this process has become progressively more partisan in nature. Of the current nine justices, 5 have been appointed by Republican Presidents and 4 by Democrats. The most moderate of the Republican appointees is Justice Kennedy, appointed by Ronald Reagan. Apart from 9-­‐0 decisions, where the Court is unanimous, the most common split in decisions is 5-­‐4. In the 2012 term of the 23 5-­‐4 decisions, Kennedy was in the majority in 20 cases. Of these 23 cases, 16 were decided on the basis of either Kennedy and the 4 Republican appointees or Kennedy and the 4 democratic appointees. For this reason, Kennedy is regarded as the “swing” vote for man issues. So 4 justices may vote to bring a case before the Court if they believe that they can get Kennedy to join them in a ruling. So to recap: - the federal judiciary is made up of three layers - the Supreme Court comprises of 9 members, often regarded as holding ideological positions similar to the Presidents that appointed them - the Supreme Court controls its docket - On constitutional matters seen as the final arbiter of legal disputes. Hopefully, that provides a little background on the operation of the federal judiciary – and sets the scene for a discussion of the judiciary’s involvement in foreign policy. The Judiciary in Foreign Policy: Judicial Rulings - Judicial Supremacy and the Treaty Power o John Marshall and Foster v. Neilson (1829) o “Self-­‐Executing” and Medellín v. Texas (2008) - The Political Question Doctrine o Goldwater v. Carter (1979) - Judicial Intervention in the War on Terror o Hamdi v. Rumsfeld (2004), Boumediene v. Bush (2008) So, what I would like to do now, is talk about three areas in which the Supreme Court has come into contact with foreign policy – Judicial Supremacy and the Treaty power, the so-­‐called “Political Question Doctrine,” and the recent judicial intervention in the War on Terror. A crucial early case in which the Supreme Court was drawn into a foreign policy dispute concerned the results of the 1819 treaty between Spain and the United States. The 1829 case of Foster v. Neilson saw contested land claims emerging from the rotation of sovereign authorities in West Florida during the early C19th. The Court was called on to adjudicate between these competing claims. The problems this posed for the Court were noted by the presiding chief Justice, John Marshall: “A question like this respecting the boundaries of nations is, as has been truly said, more a political than a legal question, and, in its discussion, the courts of every country must respect the pronounced will of the Legislature.” Should the Court rule against its own government in a dispute with a foreign power? In most countries a treaty is an obligation on the part of the sovereign nations, and a court would not be readily called to intervene in disputes over its implementation. But as we noted earlier, the US Constitution places treaties on the level of law. The Court was therefore required to rule somehow. Marshall offered the following view: “Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the Judicial, Department, and the Legislature must execute the contract before it can become a rule for the Court.” Three things emerge here: 1) the acknowledgment of the legal stature of a treaty (2) the distinction between political and judicial questions, & (3) the notion of a requirement for some treaties to be “executed” via legislation. These in effect carve out a very small area in which the Court can be involved in disputes over treaties – when they are not political questions and when they require no legislative execution. The issue of so-­‐called “self-­‐executing” treaties has recently emerged in the 2008 case of Medellín v. Texas. This case concerned the conviction of Jose Medellin of the rape and murder of two teenage girls in Houston in 1993. Medellin had signed a confession after being read his Miranda rights, but was not advised of his right to contact the Mexican consulate as a foreign citizen under the Vienna Convention. After conviction, he raised this issue on appeal but was denied relief in both Texas and federal courts. In the meantime, Mexico brought suit to the International Court of Justice. The ICJ ruled that Medellin and 50 other similarly affected defendants were entitled to review and reconsideration of their cases. Medellin pursued this route of appeal to the Supreme Court, which decided that in the absence of congressional action “executing” the relevant treaties and enforcing Medellin’s claim the Court was unable to require a further round of appeals on the basis of the ICJ’s ruling. In such a way, the idea of “non-­‐self-­‐executing” treaties enabled the Supreme Court to be deferent to the Legislative when it comes to international treaties or to reject the rulings of international institutions dependent on your outlook. The issue of “political questions” received its most recent review with regard to foreign affairs by the Supreme Court in the 1979 case of Goldwater v. Carter. In this case, Barry Goldwater, the 1964 Republican presidential candidate challenged President Carter’s rescinding of a treaty with Taiwan as part of recognition of the People’s Republic of China. In its ruling the Court judged this to be a political question and passed on the opportunity to opine on the issue – instructing the lower courts to dismiss the case. However, despite the Court’s limited involvement in foreign affairs on the basis of these legal restraints, it did find itself involved in foreign policy as it regarded War on Terror, and specifically detention. In Hamdi v. Rumsfeld in 2004, the Court examined the question of whether an American citizen captured in a foreign country could be detained indefinitely without due process. In this case the Court ruled 5-­‐4 that Hamdi could be held as an “enemy combatant,” but 8-­‐1 that he be accorded due process and a meaningful hearing. In 2006, in Hamdan v. Rumsfeld the Court ruled that the use of military tribunals to designate enemy combatant status lacked legislative or executive authority. In response, Congress passed the 2006 Military Commission Act, which created military commissions to process non-­‐citizen enemy combatants. In 2008’s BOUMEDIENE v. BUSH, the Court ruled that the procedures set up in 2006 under the Military Commission Act were not adequate replacements for habeas corpus. In effect it rejected claims that habeas corpus protections extend only to US nationals and/or to the borders of the United States. In recognizing the claims of those detained at Guantánamo Bay, the Court also struck a blow to the Bush Administration’s attempts to respond to the legal complexities created by the War on Terror. The Court’s involvement in the War on Terror brought it therefore indirectly into the sphere of foreign affairs, insofar as its ruling on individual claims forced Congressional and Executive responses that shaped relationships and actions with traditional spheres of foreign policy. Current Issues -­‐ The Supreme Court and FISA Court o Oversight o Activity of FISA Court - The Judiciary and Drones o Al-­‐Aulaqi v. Panetta (2014) - Issues Before the Court o Zivotofsky v. Kerry o Bond v. United States o Republic of Argentina v. NML Capital Ltd. At this point, I’d like to make use of the remainder of the time to discuss the judiciary’s role in current issues within international relations. The first of these concerns surveillance. The activities of the National Security Agency have been getting much national and international coverage of late. In its capacity as the overseer of surveillance the judiciary has a part to play in these debates. The Chief Justice of the Supreme Court has responsibility for the appointment of members of the FISC – established under the 1978 Foreign Intelligence Surveillance Act. You can see the oversight on the slide here: However, the New York Times has reported that since the mid-­‐2000s, the FISA Court has developed a body of law pertaining to the surveillance carried out by the NSA. In doing so it has extended the special needs exceptions to the Fourth Amendments protections on warrantless search and seizures, creating a parallel – and secret – body of Fourth Amendment law to that publically produced by the Supreme Court itself. As Congress moves to reign in the activities of the NSA attention could turn to the rule of the judiciary within the oversight of this area of government activity. The second issue of current interest, is the use of drones. In April of this year, the US District Court for the District of Columbia threw out the claim in the case of Al-­‐
Aulaqi v. Panetta (2014). In this case the families of Al-­‐Aulaqi and two other US Citizens sought damages for their deaths in Yemen as a consequence of a drone strike. In this instance, Al-­‐Aulaqi was targeted as a leader of Al-­‐Queda in Yemen. The Court ruled that while this case raised interesting questions as to the personal liability of officials carrying out drone strikes, there was no clear remedy available in case law for such an instance and that given Al-­‐Aulaqi’s membership of Al-­‐Queda and the existence of an Authorization for Use of Military Force the Court was hesitant to intervene. Judge Collyer did however note the Executive’s recalcitrance in assisting the court’s work in this case noting that she would have not dismissed the case had the court itself not been able to put together sufficient factual information from its own research. In that same month, the US Court of Appeals for the 2nd Circuit reversed a lower court decision and requested that the government release memos pertaining to the drone strike, which were released this week. At this moment, its not clear if this case line will develop, but it perhaps indicates the judiciary’s involvement within the legal and constitutional questions relating to drones. Finally, the Supreme Court has dealt with several cases this term which had potential consequences for foreign policy. In Bond v United States, the Court was encouraged to consider whether Congress is given authority to pass legislation required by a treaty that it would ordinarily not have. In this instance that concerned the Chemical Weapons Convention, which as a “non-­‐self-­‐executing” treaty, was enforced in the United States by the Chemical Weapons Convention Implementation Act of 1998. In this improbable case Carol Anne Bond sought to attempt to poison her husband’s lover with photograph-­‐printing chemicals purchased from Amazon.com. Charged under the Chemical Weapons Convention Implementation Act, she challenged the Act’s constitutionality. Had the Supreme Court agreed that Congress can not pass legislation to enforce treaties it has entered into, it may have caused problems going forward. As it turned out, the Court side-­‐
stepped this issue and questioned whether this law was intended to apply to Bond’s case at all. In Republic of Argentina v. NML Capital Ltd. decided two weeks ago, the Supreme Court gave Argentina’s creditors the ability to pursue claims against the nation on an equal footing with those that have accepted a bond swap. In doing so, the Court refused to support Argentina’s claim that it ought not be beholden to the rulings of lower American courts. The ruling has been criticized by charities as it may make future sovereign debt relief more difficult. Mexico, France, and Brazil had filed friend of the court briefs asking the Court to side with Argentina, and the ruling may make nations more reticent to issue bonds in future – or it may shift the legal arena of bond issuances away from the United States. Greek bonds issued under English and Greek law were effectively restructured in 2012. And the Court has agreed to hear next session the case of Zivotofsky v. Kerry. This case asks whether the Secretary of State, John Kerry is correct to regard a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport as unconstitutional. Kerry (standing in for the Dept of State in the case) asserts this view on the ground that the law infringes the President's power of recognizing foreign states on his own terms. In July 2013 the Court of Appeals for the District of Columbia sided with the Department of State on this issue. So even as it does its best to stay deferent to Congress and the Executive on issues of foreign policy, the Court is often drawn in to foreign affairs by the need to decide constitutional questions. From a start as an act of foreign policy, the Constitution – and as a result the Court -­‐ remains a significant, if not ever present, consideration in foreign affairs.