Abstract
Foreign affairs have played a crucial role in the history of the USA and SCOTUS must be viewed in the light of historical, political, economic, and social factors. To consider the Court strictly as a legal institution is to underestimate its real significance in the US political system—both in domestic and foreign affairs. Several decisions are landmarks in the country’s constitutional history for their influence on the well-being and affairs of the nation.
Foreign affairs have not escaped the attention of the Court at any time during its existence. Human rights and democratic principles are ingrained in and permeate the Constitution. Their promotion has been an integral part of the foreign policy of the USA. Their interpretation is the duty of the Court. To adequately examine and fully understand that role of SCOTUS, a host of different aspects had to be taken into consideration, such as the events before, during, and after the Constitutional Convention; the critical influence foreign affairs had on the Framers ; the record of SCOTUS dealing with foreign affairs issues during its first 150 years; and the different doctrines it started to adhere to in disposing of cases with elements of foreign affairs. The context and consequences of the Curtiss-Wright decision required scrutiny as did the relevance of the Youngstown ruling.
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Notes
- 1.
Whittington 2007, p. 19.
- 2.
It is noteworthy that the terms “foreign affairs” and “foreign policy” are never mentioned in the Constitution while the allocation of the foreign affairs authority amongst the branches is done with the utmost brevity.
- 3.
The separation of powers stubbornly refused to become irrelevant. Vile 1998, p. 315. The author devotes ample space to lengthy documentary explanations of the doctrine and institutional theory; the foundation of the doctrine; the theory of the balanced constitution; and the influence of Montesquieu—the name most often associated with this doctrine.
- 4.
Hamilton et al. 2014, No. 78. Hamilton opined that the judiciary would be the least dangerous branch of government. He based this on the third branch lacking “the power of the executive branch and the political passions of the legislature”.
While Bickel gave his seminal work on the Court the title of “The Least Dangerous Branch” his opening line declares:
It is the most extraordinarily powerful court of law that the world has ever known.
Bickel 1986, p. 1.
- 5.
Morey and Randazzo 2009, p. 7.
- 6.
Hall 2011, pp. 13–15.
- 7.
- 8.
In Part I, Chap. 1, Sect. 1.1, reference is made to the importance of SCOTUS’s ruling in Brown v. Board of Education 347 U.S. 483 (1954). The principle of one person, one vote was ensured in the USA in a series of SCOTUS cases in the 1960s—the most significant one being the Court’s majority opinion in Reynolds v. Sims 377 U.S. 533 (1964).
- 9.
Fisher 2017, p. xii.
- 10.
On 16 November 2018 President Donald Trump awarded the highest civilian honour of the USA, the Presidential Medal of Freedom, posthumously to the indefatigable stalwart of the Court, J Scalia who died in February 2016. The citation for the occasion included the following tribute:
Confirmed unanimously in 1986, Justice Scalia authored nearly 900 Supreme Court opinions. He was a champion of the Constitution, insisting that the role of federal judges is to uphold the original meaning of the Constitution, never to impose their own beliefs on the country. Justice Scalia’s legal philosophy is rooted in America’s founding principles, legal heritage, and constitutional obligations. He never backed down from the bedrock proposition that the Constitution “means and will always mean what it meant when it was adopted”. Justice Scalia’s devotion to the rule of law has left a lasting legacy for our country, and we now honor this giant of the Supreme Court.
The White House Press Release 2018.
A fact worth mentioning, without belabouring the point, is that none of the Justices involved in the epoch-making decision on abortion in Roe v. Wade 401 U.S. 113 (1973) had any medical expertise whatsoever. They did what was expected of them—to interpret the Constitution and that led them to legalise abortion.
- 11.
Judicial review is dealt with in Sect. 3.8.1 infra.
- 12.
Marbury v . Madison 5 U.S. (1 Cranch) 137 (1803).
- 13.
SCOTUS’s role in determining the 2000 Presidential election in Bush v. Gore 531 U.S. 98 (2000) is considered the most prominent example of the judicialisation of politics in the USA. Hunt 2013, p. 20.
- 14.
Ibid., pp. 21–22.
- 15.
Henkin 1996.
- 16.
Shapiro 1970, pp. 77–89.
- 17.
In Bas v. Tingy 4 U.S. 43 (1800) the Supreme Court ruled that only Congress is able to declare either an “imperfect” (limited) war or a “perfect” (general) war. In Talbot v. Seeman 5 U.S. 1 (1801), the Court determined that all powers of war are constitutionally vested in Congress. In Little v. Barreme 6 U.S. 177 (1804) CJ Marshall held that President Adams’s instructions to seize hostile ships were in conflict with Congress and therefore illegal. Finally, in the Prize Cases SCOTUS ruled that the President, in his capacity as Commander-in-Chief, possessed the power to repel sudden attacks against the USA. What the Court made abundantly clear was:
He has no power to initiate or declare a war either against a foreign nation or a domestic State.
Prize Cases 67 U.S. 635 (1863), at 668.
That authority vests in Congress, and Congress alone. These early cases demonstrated the judiciary’s assertiveness in defining constitutional parameters within which the political branches of government had to operate. Morey and Randazzo 2009, p. 5.
- 18.
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).
- 19.
Cases such as Curtiss-Wright 1936 or Korematsu v. United States 323 U.S. 214 (1944) reinforced executive dominance in foreign affairs.
- 20.
Rosati 1999, p. 352.
- 21.
- 22.
This doctrine is examined in Sect. 3.8.2 infra.
- 23.
- 24.
Fisher 2017, p. 94.
- 25.
Korematsu 1944.
- 26.
Fisher 2017, p. 96.
- 27.
Ibid.
- 28.
Adarand Constructors, Inc. v. Pena 515 U.S. 200 (1995).
- 29.
Trump v. Hawaii cite as 138 S. Ct. 2392 (2018).
- 30.
- 31.
Fisher 2017, p. 125.
- 32.
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp. 333 U.S. 103 (1948).
- 33.
Rossiter 1951, p. 131.
- 34.
- 35.
Burley 1993, pp. 1980–2008.
- 36.
Ibid., p. 1996.
- 37.
New York Times Co. v. United States 403 U.S. 713 (1971).
- 38.
Fisher 2017, p. 170.
- 39.
Koh 1990, p. 28.
- 40.
Opinions of the Office of Legal Counsel (Op. O.L.C.). 1996, p. 5.
- 41.
Ibid.
- 42.
Geilman 1998.
- 43.
Fisher 2017, p. 222.
- 44.
- 45.
Harry Stimmson, Secretary of War under both Presidents Franklin Roosevelt and Harry Truman, expressed these somewhat curious but telling words in 1947 to describe how things were changing for the USA:
Foreign affairs are now our most intimate domestic concern.
Schmitz 2001, p. xvi.
- 46.
See Part I, Chap. 2, Sect. 2.6, for the role of Congress in foreign affairs.
- 47.
Charney 1989, p. 806.
- 48.
Henkin 1987, p. 288.
- 49.
Beard 1912, p. 68.
- 50.
Bradley and Goldsmith 2014.
- 51.
Lee 2012, p. 2.
- 52.
The Federalist (later known as The Federalist Papers) is a collection of 85 articles and essays written (under the pseudonym Publius) to promote the ratification of the new Constitution. These Papers are considered one of the most important sources for interpreting and understanding the original intent of the Constitution. All the Federalist Papers referred to in this chapter have been sourced from Hamilton et al. 2014.
- 53.
- 54.
In 1793–1794 Hamilton and Madison argued in the Pacificus-Helvidius Debates about the proper role of the executive and the legislative branches in the conduct of war. Madison wrote these remarks as “Helvidius”.
- 55.
Miller 2006.
- 56.
Beard 1912, p. 86.
- 57.
The Articles of Confederation were adopted shortly after the Revolution in order to ensure some unification of the states for common foreign and domestic problems. However, two of the three branches of the national government—the executive and the judicial branches—were non-existent. All executive powers were vested in the Continental Congress to have the sole and exclusive right and power of deciding on war and peace. Finck 1997, p. 138, footnote 148.
- 58.
Yoo 2005, p. 24. With this publication, the author has contributed copiously to a better understanding of the events before, during and after the Convention. Especially significant are the three chapters dealing with the Eighteenth-Century Anglo-American Constitution and Foreign Affairs; Foreign Affairs and the Prelude to the Constitution; and Writing and Ratifying a Foreign Affairs Constitution, pp. 30–142.
- 59.
Marks 1986, p. x.
- 60.
Schlesinger 1973.
- 61.
Herring 2008, pp. x–xii.
- 62.
Koh 1990, p. 227.
- 63.
Herring 2008, pp. 8 and 51.
- 64.
Henkin 1996, p. 90.
- 65.
Corwin 1957, p. 245.
- 66.
The Bill of Rights came afterwards with a series of amendments to the Constitution adopted two years after the ratification of the new Constitution. The First Amendment guarantees freedom of religion, of speech, of the press, and the right of petition while the Second Amendment grants the right to bear arms.
- 67.
The implications of the foreign affairs context prevailing at the time of the Convention have been largely ignored. Marks 1986 deals with this aspect in great detail.
- 68.
Lee 2012, pp. 5–6. It is significant that since the mid-1980 the term “national security constitution” has gained currency.
- 69.
Marks 1986, p. xiii.
- 70.
Holder v. Humanitarian Law Project 561 U.S. 1 (2010), at 35.
- 71.
Lee 2012, pp. 13–14. Great Britain had control of Canada and of several Caribbean colonies; France had colonies in the West Indies and coveted Spanish Louisiana; the Viceroyalty of New Spain included the territories of modern Mexico and Central America as far south as Costa Rica; Spain claimed ownership of Florida plus everything west of the Mississippi River and the river itself. Spain had closed its portion of the Mississippi to American commerce in 1784. Free navigation of the river was obtained only after a treaty was signed with Spain in 1795 and ratified the following year. The USA came into possession of the river itself and the port of New Orleans with the Louisiana Purchase in 1803. Bailey 1980, pp. 66–130 and Bemis 1960, pp. 281–284 and 310–314.
- 72.
The Barbary pirates marauding off the coast of North Africa had been a menace for so long that by the late 1700s most nations paid tribute to ensure that merchant shipping could proceed without being violently attacked. In the early years of the 19th century, the USA, at the direction of President Jefferson, decided to halt the payment of tribute. A war between the young and small US Navy and the Barbary pirates ensued.
- 73.
Hamilton et al. 2014, No. 42.
- 74.
Ibid., No. 69. The Framers viewed the Commander-in-Chief power as simply the power to command troops in the field and to repel sudden attacks—not as the power to do whatever it takes to win wars. Dellapenna 2008, p. 5.
- 75.
This vagueness resulted in the establishment of judicial review. See Sect. 3.8.1 infra.
- 76.
Reveley 1969, p. 1248. The Constitution is a concise document of about 6,000 words. The system of government it established is based on delegated, enumerated and thus limited powers. These powers are all ones that the Framers considered fundamental for their time.
- 77.
Beard 1912, p. 76.
- 78.
Many observers would argue that what was happening in US foreign affairs at the end of 2018 was precisely what the Framers wanted to avoid!
- 79.
Lee 2012, pp. 19–20.
- 80.
Goldgeier and Saunders 2018.
- 81.
Ibid.
- 82.
Curry, Pacelle and Marshall 2008, p. 224.
- 83.
See Part I, Chap. 2, Sect. 2.6, for the impact of the legislature.
- 84.
- 85.
Wilkinson 2003, p. 698.
- 86.
Fisher 2017, p. 49.
- 87.
All members of the House of Representatives and a third of the Senate are elected every two years by direct popular vote. A presidential election takes place every four years by indirect popular votes through the system of electoral votes in each of the 50 states. On several occasions the latter caused an elected President to win the electoral vote but not the popular vote as happened in the electoral contest between Donald Trump and Hillary Clinton in November 2016.
- 88.
In 1994 SCOTUS held that
… the Constitution expressly grants Congress, not the President, the power to “regulate Commerce with foreign Nations”.
Barclays Bank PLC v. Franchise Tax Board of California 512 U.S. 298 (1994) cite as 114 S. Ct. 2268 (1994), at 2285. (Quotation marks appear in original)
- 89.
Article I, Section 8.1, refers to foreign and domestic commerce as well as with the “Indian tribes”.
- 90.
Delany 2013, p. 181.
- 91.
Goldsmith 1997, p. 1620.
- 92.
Hurwitz 1971, p. 271.
- 93.
Included are also presidential nominations of Justices to serve on SCOTUS.
- 94.
The Confederacy’s foreign policy failures were central to the primary defect in the Articles’ treaty-making structure: the freedom of the states to ignore or frustrate treaties . Yoo 1999, p. 2013.
- 95.
Article II, Section 2.2. Important to note that the President may receive foreign Ambassadors without any Senate involvement.
- 96.
Presidents can initiate military actions, but these actions can be waged successfully only to the extent that Congress is willing to appropriate funds. Presidents can offer foreign aid, but again only to the extent that Congress is willing to foot the bill. Presidents can propose free trade zones, but only if Congress is willing by a vote of both Houses to go along. Presidents can negotiate treaties, but they become law only if two-thirds of the Senate approves. The same is true of his nominations, which can be appointed only once the Senate has consented. In short, while the President is the dominant player in foreign affairs, there is almost nothing vital that the President can do even in this realm without some cooperation and approval from Congress. Bradley and Siegel 2015, pp. 1–56.
- 97.
Lavinbuk 2005, p. 861. Jay had at the time of the Convention already served as the president of the Continental Congress, devoted a year as a diplomatic Minister to Spain, helped negotiate the Treaty of Paris that ended the Revolution, and was concluding his tenure as secretary of foreign affairs. He would go on to become among other things, the first Chief Justice of SCOTUS while at the same time continuing his role as the nation’s foremost diplomat, negotiating the controversial treaty that bore his name. Flaherty 2011–2012, p. 120.
The Jay and Marshall Courts heard more than 1,300 cases. Of that a total of 323 of those cases, or one in four, involved foreign affairs. Nearly two in five cases heard by the Jay Court involved international issues. During Marshall’s 40 years as Chief Justice, only in one year (1803) did it not handle a foreign affairs case. Not surprisingly, the Court heard more of these cases in the years following armed conflict. From 1813 to 1820, for example, more than 40% of the Court’s docket raised questions implicating foreign affairs. Lavinbuk 2005, p. 876.
- 98.
Article III, Section 2.1, extends judicial power to all cases of admiralty and maritime jurisdiction while Article I, Section 8, grants Congress the power “to define and punish Piracies and Felonies committed on the high Seas”.
- 99.
Lavinbuk 2005, p. 876.
- 100.
Kontorovich 2008, p. 51. From 1791–1835, 202 out of 315 cases involved admiralty and maritime issues.
- 101.
Without opening up a hornet’s nest this question may be relevant: is today’s terrorism not piracy of the late 18th century?
- 102.
White 1989, p. 727.
- 103.
Trade restrictions, particularly the Embargo Act of 1807 and the Non-Intercourse Act of 1809, were arguably the most expansive foreign policies of their era, providing the Court a meaningful entry into the foreign affairs arena. The acts were extraordinarily unpopular in some regions, causing the Jefferson and Madison Administrations to rely heavily on the judiciary for political cover. Furthermore, the policy issues raised by these trade disputes were consequential; indeed, some of the most famous foreign affairs cases to arise from the era, those most often cited by mainstream scholars, arose in cases framed by trade restrictions. White 1989, p. 883.
- 104.
During the Civil War, it delivered two significant opinions interpreting the war powers. In the Prize Cases 1863 President Lincoln’s action to block southern ports was upheld. Three years later the Court in Ex Parte Milligan found the order that had been issued by President Lincoln to have been unconstitutional. Ex Parte Milligan 71 U.S. (4 Wall.) 2 (1866). A most authoritative and expansive dissertation on this latter case is supplied by Bradley 2009, pp. 93–132.
- 105.
Schwartz 1993, p. 33.
- 106.
Marbury 1803. See Sect. 3.8.1.2 infra.
- 107.
Hamilton et al. 2014, No. 8.
- 108.
Little 1804. CJ Marshall ruled the President had exceeded the authority granted to him by Congress when he issued instructions to captains to seize vessels suspected of violating a federal act. Note that the President had ignored a specific limitation on his authority, not that he had merely overreached it. This judicial rebuke to an executive followed a year after the Marbury decision in 1803. Both rulings have never been overturned. SCOTUS is bound by the principle of stare decisis. Under this principle, once the Court has made a decision, it will follow that decision in future cases and not overrule it. In The Federalist Papers, No. 78, Hamilton provided the rationale for this principle—“a robust respect for precedent is indispensable to preventing judges from exercising arbitrary discretion”. The Court generally believes that stare decisis is a wise policy; but, in constitutional cases where correction through legislative action is practically impossible, the Court has on occasion overruled its earlier decisions. Finck 1997, p. 149. In 2015, SCOTUS accepted this principle as “a foundation stone of the rule of law” and declared that overruling precedent is never a small matter. Kimble v. Marvel LLC cite as 135 S.Ct. 2401 (2015), at 2409. See also Van Alstine 2002.
- 109.
Bas 1800.
- 110.
Talbot 1801.
- 111.
Ibid., at 28.
- 112.
The Star 16 U.S. 92 (1816).
- 113.
The Antelope 23 U.S. 115 (1825).
- 114.
Lindsay 2011, p. 2.
- 115.
The main exponent of this justification for presidential action in the war on terror was John Yoo, whose arguments were eventually rejected by the Court in a series of cases which are dealt with in greater detail in Part II, Chap. 4.
- 116.
Schorpp 2011, p. 2.
- 117.
Powell 1987, pp. 162–163. Yoo observes in a 142-page self-serving article that from the earliest days of the new nation the Court has recognised that the other branches must permit the President some amount of discretion in the conduct of foreign affairs. Yoo 1996, p. 182.
In this same treatise Yoo airs his strong conviction that if the judiciary continues to refuse to hear war powers cases, then Congress must force the Court to do so by including provisions in foreign affairs statutes requiring the judiciary to exercise jurisdiction. Ibid., p. 195. In another article Yoo critiques the debate on the allocation of the war power between the President and Congress. Many academics support the view that the President cannot engage militarily in hostilities without congressional authorisation based upon claims made about the original understanding of the War Power clause in Article I, Section 8. He accuses them for failing to use history in a rigorous manner in order to determine the original understanding and to pay proper attention to primary and secondary historical sources. Yoo expands on this line of thought. Yoo 1999, pp. 1169–1222.
- 118.
Barron and Lederman 2008, pp. 739–740.
- 119.
Hamilton et al. 2014, No. 58.
- 120.
That Act merely intensified the debate over who holds the power to declare war. It solved nothing. Wilkinson 2003, p. 698. Howell adds this observation:
The debate seems to be never-ending and the vexed question remains unanswered. Cut to the bone the making of foreign policy and controlling foreign affairs hinge on how the national interest of the USA is defined and what means are chosen to achieve it. Needless to say, this process is deeply and inescapably political.
Howell and Pevehouse 2007, pp. 95–107.
- 121.
National War Powers Commission Report 2008, p. 12. See also Baker and Christopher 2008.
- 122.
See Chap. 6, Sect. 6.1.2.3, especially the segment covered by footnotes 63–75.
- 123.
- 124.
- 125.
- 126.
Kavanaugh 2009, p. 1475. This particular section is on pp. 1475–1482.
- 127.
Kavanaugh 2014, pp. 1913–1914.
- 128.
Ibid., p. 1927.
- 129.
Ibid. See also Sect. 3.8.1.2 infra.
- 130.
Missouri v. Holland 252 U.S. 416 (1920), at 434.
- 131.
Gross 2014, p. 283.
- 132.
White 1999, p. 1119.
- 133.
- 134.
United States v. Belmont 301 U.S. 324 (1937)
- 135.
United States v. Pink, 315 U.S. 203 (1942).
- 136.
Belmont 1937, at 331 contains these remarks by CJ Sutherland in delivering the opinion of the Court:
The recognition, establishment of diplomatic relations, the assignment, and agreements with respect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment, and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over internal affairs is distributed between the national government and the several states. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties , as that term is used in the treaty-making clause of the Constitution (Article II, § 2), require the advice and consent of the Senate.
Emphasis added.
In this opinion Sutherland in referring to the President repeated the phrase “sole organ”, which he erroneously coined in his opinion in Curtiss-Wright the previous year. See Sect. 3.8.7.2 infra.
- 137.
Johnson v. Eisentrager 339 U.S. 763 (1950).
- 138.
See Sect. 3.8.7.2 infra.
- 139.
Goldwater v. Carter 444 U.S. 996 (1979).
- 140.
Section 3.8.2.2 infra deals with this case in more detail.
- 141.
Sutherland 1919, p. 120.
- 142.
The Joint Comprehensive Plan of Action (“JCPOA”)—also often referred to as the Iran nuclear deal or the Iran nuclear agreement.
- 143.
Thiesen 2018.
- 144.
Goldsmith 2018.
- 145.
Padeanu 2016.
- 146.
Hamilton et al. 2014, No. 78.
- 147.
The only person the President appoints without confirmation by the Senate is his Assistant for National Security Affairs, also referred to as the National Security Advisor.
- 148.
The Framers adopted the Recess Appointments Clause, without debate, to prevent governmental paralysis. Article II, Section 2, Clause 3, grants the President the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. In recent years Presidents have more frequently utilised the recess appointment power, often to avoid the Senate’s role in the confirmation process. Despite this trend, the threat of governmental paralysis present at the time of the Framers is drastically reduced today, due to shorter recesses and improvements in transportation and communication. In The Federalist Papers, No. 68, Hamilton addressed the role the Senate in the nomination and appointment process, including recess appointments. The subject of recess appointments is exhaustively covered by Harnett 2006, pp. 377–442 and by Rappaport 2005, pp. 1487–1578. SCOTUS ruled unanimously in National Labor Relations Board v. Noel Canning 134 S. Ct. 2550 (2014) that the President cannot use his or her authority under the Recess Appointment Clause of the Constitution to appoint public officials unless the Senate is in recess and not able to transact Senate business.
- 149.
In his seminal work on the Court and the Constitution Beard provides a detailed analysis of the subject of judicial control during the deliberations at the Convention. To establish the intention of the Framers on this particular issue he made an exhaustive search in the documents of the Convention and in the writings, speeches, papers and recorded activities of all the Framers. Beard 1912.
- 150.
Finck 1997, p. 139.
- 151.
Ibid., p. 157. He opines that judicial review came about because of historical fears.
- 152.
Curtiss-Wright 1936, at 177.
- 153.
- 154.
Beard 1912, p. 119.
- 155.
Schubert 1973, p. 3.
- 156.
Kavanaugh 2014, p. 1922.
- 157.
Ibid.
- 158.
Ibid., p. 1923.
- 159.
Ibid.
- 160.
Nixon v. United States 506 U.S. 224 (1993), at 252–253 contains this observation:
The political question doctrine is essentially a function of the separation of powers, existing to restrain courts ‘from inappropriate interference in the business of the other branches of Government,’ and deriving in large part from prudential concerns about the respect we owe the political departments.
This quote is from another SCOTUS case: Baker v. Carr 369 U.S. 186 (1962), at 217.
- 161.
Wilkinson 2003, p. 730. It should be noted that a political question differs from a political issue. The Court may decide questions dealing with political issues. Glennon adds this observation:
The political question doctrine, the Supreme Court has reminded us, is one of ‘political questions’, not one of political cases.
Glennon 1989, p. 817.
SCOTUS does decide questions dealing with political issues. While the Constitution grants to the political branches, and in particular to the executive, responsibility for conducting the nation’s foreign affairs, it does not follow that the judiciary is by definition excluded from the resolution of cases merely because they may touch upon such affairs. Wilkinson 2003, pp. 731–732.
- 162.
- 163.
In addition to Cole 2014, pp. 1–25, the book edited by Mouttaba-Sabbah, Cain 2007 is most useful for understanding all the complexities of this doctrine. The article by Barkow 2002, pp. 237–336 adds great value with a thorough and comprehensive study of this doctrine. For her the doctrine strikes at the heart of the separation of powers and the need for each branch to stay within its sphere to maintain the constitutional order. Ibid., p. 335.
- 164.
Huq 2013, p. 20.
- 165.
This doctrine has its origins in Marbury v. Madison when CJ Marshall proclaimed:
Questions in their nature political can never be made in this court.
Marbury 1803, at 170.
After quoting this remark of CJ Marshall , Fisher makes this observation:
Yet every question that reaches the Court is, by its very nature, political.
Fisher 2017, p. 13.
Tigar suggests that a close reading of CJ Marshall’s complete statement reveals that it does not purport to exclude all questions of foreign affairs from judicial cognisance. Tigar 1969–1970, p. 1168.
- 166.
Cole 2014, p. 1.
- 167.
This crux of Marbury 1803 was later enunciated by CJ Hughes as follows:
We are under a constitution, but the constitution is what the judges say it is.
Puder 2004, p. 585.
- 168.
Michel 2013, p. 253.
- 169.
Cole 2014, p. 2.
- 170.
- 171.
Flinterman 1995, p. 45.
- 172.
Ibid., p. 54.
- 173.
Baker 1962.
- 174.
Huq 2013, p. 20.
- 175.
Breyer 2015, p. 23.
- 176.
Boumediene v. Bush 553 U.S. 723 (2008). See Part II, Chap. 4, Sect. 4.4.6.
- 177.
Zivotofsky v. Clinton 566 U.S. 189 (2012). Part II, Chap. 6, Sect. 6.1.2.2 deals with this case again.
- 178.
Huq 2013, p. 22, footnote 121.
- 179.
Cole 2014, pp. 20–22.
- 180.
Breyer 2015, p. 24.
- 181.
Endicott 2010, p. 538.
- 182.
Breyer 2015, p. 19.
- 183.
Ibid., pp. 20–21 and 23. In the Chicago case the Court went out of its way to emphasise these points:
… the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. We therefore agree that whatever … emanates from the President is not susceptible of review by the judicial Department.
Chicago 1948, at 111–112.
- 184.
Prize Cases 1863.
- 185.
Lee and Ramsey 2009, pp. 53 and 92.
- 186.
Franck is of the opinion that such fear may be understandable when grave issues of war are at stake, but what he finds troublesome is that the Court has avoided “all kinds of lesser foreign policy-related cases”. Franck 1991, p. 67.
- 187.
- 188.
Oetjen v. Central Leather Co. 246 U.S. 297 (1918), at 302.
- 189.
Commercial Trust Co. v. Miller 262 U.S. 51 (1923), at 57.
- 190.
Belmont 1937, at 330 and Oetjen 1918, at 302.
- 191.
Holtzman v. Schlesinger 414 U.S. 1304 (1973). In Mora v. McNamara 389 U.S. 934 (1967) SCOTUS refused to hear the petitioners’ challenge to the legality of the Vietnam War . The Court similarly refused to consider the war’s unconstitutionality in Mitchell v. United States 386 U.S. 972 (1967). When the state of Massachusetts made an effort to bring that issue to the Court a majority refused to consider it. The only dissenting Justice (Douglas) argued that the Court should answer what he considered an essentially straightforward legal question. Franck 1991, p. 67.
- 192.
Collins 2002, p. 500.
- 193.
Post 1969, p. 130.
- 194.
A few years later the Court clarified this point further:
It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.
Harisiades v. Shaughnessy 342 U.S. 580 (1952) cite as 72 S. Ct. 512, at 588–589:
- 195.
Cantu 2015, p. 25.
- 196.
Goldwater 1979.
- 197.
Ibid., at 1003.
- 198.
Ibid.
- 199.
Fisher 2017, p. 15. Emphasis added.
- 200.
Goldwater 1979, at 1006.
- 201.
Baker 1962, at 284–285. Emphasis added.
- 202.
Konar 1980, p. 88.
- 203.
Japan Whaling Association v. American Cetacean Society 478 U.S. 211 (1986), at 230–231.
- 204.
Lindsay 2011, p. 3.
- 205.
Henkin 1976, pp. 597–625. This is his observation in criticising this doctrine:
Claims that the President had usurped congressional authority, or Congress the President’s, were heard and adjudicated in several major cases in our history without a suggestion that the courts are barred by some political question doctrine.
Ibid., p. 624.
To substantiate his argument, he relies on Youngstown 1952 and Myers v. United States 272 U.S. 52 (1926). The whole tenor of his article is one that questions whether political questions even exist.
- 206.
- 207.
Ibid., p. 1135. He is very upfront in stating quite boldly:
Rather, there is a cluster of disparate legal rules and principles.
Ibid.
He also adds this comment:
In sum, the ‘political question doctrine’ does not seem to be a doctrine at all, but a group of quite different legal rules and principles, each resting in part upon deference to the political branches of government.
Ibid., p. 1163.
- 208.
Ibid., p. 1135.
- 209.
- 210.
Ibid., pp. 1059–1060.
He also makes this remark to illustrate his disgust with this doctrine:
Furthermore, the Court perhaps risks a greater expenditure of its moral capital if, in a manner reminiscent of Pontius Pilate, it washes its hands of a sensitive constitutional issue, thereby allowing the political branches to continue unreviewed the activity thought by many to be unconstitutional.
Ibid., p. 1061.
- 211.
Glennon 1989, p. 815.
- 212.
Ibid., p. 814.
- 213.
- 214.
- 215.
O’Donnell 2004, p. 229.
- 216.
Hudson v. Guestier 8 U.S. 293 (1806).
- 217.
- 218.
Banco 1964, at 421.
- 219.
Ibid., at 423.
- 220.
Henkin 1964, p. 829.
- 221.
Banco 1964, at 440.
- 222.
Ibid., at 423.
- 223.
Ibid., at 468.
- 224.
W. S. Kirkpatrick & Co. v. Environmental Tectonics Corp. International 493 U.S. 400 (1990).
- 225.
Ibid., at 409.
- 226.
Sovereign immunity is different from diplomatic immunity. The latter involves cases brought against individual diplomats.
- 227.
Schooner Exchange v. McFaddon 11 U.S. (7 Cranch) 116 (1812).
- 228.
Ibid., at 116.
- 229.
Ibid., at 136.
- 230.
Von Mehren 1978, pp. 39–40.
- 231.
Bergum 1986, p. 322.
- 232.
Ex Parte Republic of Peru 318 U.S. 578 (1943).
- 233.
Republic of Mexico v. Hoffman 324 U.S. 30 (1945).
- 234.
Peru 1943, at 588.
- 235.
Ibid.
- 236.
United States v. Lee 106 U.S. 196 (1882), at 209.
- 237.
Von Mehren 1978, p. 40.
- 238.
The “Tate Letter” was addressed by Jack B. Tate, acting Legal Advisor of the State Department, to Philip B. Perlman, acting US Attorney General, on 19 May 1952. This Letter was reprinted in Alfred Dunhill of London, Inc. v. Republic of Cuba 425 U.S. 682 (1976), at 711.
- 239.
Elsea 2013, p. 2.
- 240.
The “Tate Letter” as quoted by Jansen 1989, p. 346.
- 241.
Ibid.
- 242.
Ibid., p. 334
- 243.
Alfred Dunhill 1976, at 699.
- 244.
Jansen explains that under the prior procedures, a foreign government could employ its diplomatic resources to seek a recommendation from the State Department that the Court should dismiss a particular case on the ground of sovereign immunity. With the enactment of the FSIA, however, these diplomatic channels have been closed. Objective judicial standards became the exclusive means available to foreign sovereigns to determine their immunity. Ibid., p. 370.
- 245.
Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330 and codified as amended at 28 U.S.C. 1602–1611 (2006).
- 246.
Wuerth 2018.
- 247.
Verlinden B. V. v. Central Bank of Nigeria 461 U.S. 480 (1983).
- 248.
Section 1605 of FSIA.
- 249.
Much room is still left for future debate over what constitutes sufficient connection to merit jurisdiction. Bergum 1986, p. 333. The concept of nexus with the USA was also relevant in respect of the Alien Tort Statute of 1789, 28 U.S.C. § 1350 and SCOTUS’s rulings flowing from that statute. See Part II, Chap. 5, Sect. 5.2.4.3 and Chap. 6, Sect. 6.2.4.
- 250.
Bergum 1986, p. 321.
- 251.
Ibid. Emphasis added. She also makes this sound remark:
Foreign plaintiffs may engage in forum shopping and choose United States jurisdiction although their disputes are much more closely tied to the interests of other nations’ legal systems.
Later on she added that in doing so foreigners expect an outcome under the US legal system to be “more promising than that of their own”. Ibid., p. 332.
- 252.
Verlinden 1983, at 1971.
- 253.
Ibid.
- 254.
Ibid., at 1973.
- 255.
Bergum 1986, p. 331.
- 256.
Ibid., pp. 334–335. It is important to note in this regard the fact that under the Diversity Statute of 1982, 28 U.S.C. § 1332 (1982), a company incorporated in a foreign country is an alien for the purposes of federal jurisdiction in the USA, even if all of its offices and shareholders are within the USA.
- 257.
Ibid., p. 336.
- 258.
- 259.
Jansen 1989, p. 350.
- 260.
Elsea 2013, p. 15.
- 261.
Ibid., p. 14.
- 262.
Ryan 2016, p. 1776.
- 263.
This Statement’s background is briefly the following. Almost immediately after SCOTUS’s ruling in Samantar 2010 that foreign official immunity is governed by the common law rather than the FSIA, the executive started seeking a leading role over all requests for foreign official immunity. A year after the decision, the State Department’s Legal Advisor, Harold Koh, declared that the ruling had vested primary control over determinations of foreign official immunity with the executive. According to Ryan, Koh based his interpretation of that ruling on the Court’s dicta that
[w]e have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in determinations regarding individual official immunity.
Samantar v. Yousuf 560 U.S. 305 (2010), at 323.
Ryan 2016, p. 1781.
- 264.
Ibid., p. 1776.
- 265.
Ibid.
- 266.
Ibid., footnote 22.
- 267.
Ibid., p. 1783.
- 268.
Ibid., pp. 1776–1777.
- 269.
Keitner 2012, p. 704.
- 270.
Ryan 2016, p. 1804.
- 271.
Ibid., p. 1777.
- 272.
Ibid., p. 1787.
- 273.
Rubin v. Islamic Republic of Iran cite as 138 S. Ct. 816 (2018).
- 274.
See Part II, Chap. 6, Sect. 6.1.3.
- 275.
The attack occurred more than 21 years ago, on 4 September 1997, when three suicide bombers from the Palestinian fundamentalist organisation Hamas blew themselves up at the Ben Yeduda pedestrian mall in Jerusalem. Led by plaintiff Jenny Rubin, eight US citizens and their families sued Iran—the alleged sponsor of the attack—in a federal court in Washington, DC. The claim has applied the terrorism exception to FSIA that establishes the limitations as to whether a foreign sovereignty can be sued in US courts. A federal judge found that Iran had not used the artefacts for commercial activity, a requirement of the terrorism exception to the FSIA, known as Section 1610. The victims appealed this judgment, arguing that a third party’s (i.e. the museum’s) study of parts of the collection essentially triggered the exception. But the US Court of Appeals for the Seventh Circuit sided with the lower court’s ruling in 2016, agreeing that the foreign state itself must use its property for a commercial activity to qualify under Section 1610.
- 276.
The FSIA provides that, subject to certain international agreements, the property in the USA of a foreign state, and its agencies or instrumentalities, “shall be immune from attachment arrest and execution,” except as provided for in Sections 1610 and 1611 of the Act. Subsections (a) and (b) of Section 1610 create exceptions for property with a commercial nexus. Subsection (a) provides that a foreign state’s property “used for a commercial activity in the United States” is not immune from attachment if additional criteria are met.
- 277.
As quoted by Howe 2018a.
- 278.
Rubin 2018, at 825.
- 279.
Mauro 2018, quoting Juan Basombrio, an expert on the FSIA.
- 280.
Budha Ismail Jam v. International Financed Corporation. Petition 2018.
- 281.
International Organizations Immunities Act (IOIA), codified as 22 U.S.C. § 288.
- 282.
Budha 2018, at i.
- 283.
22 U.S.C. § 288.
- 284.
Republic of Austria v. Altmann 541 U.S. 677 (2004), at 699 and Republic of Mexico 1945, at 35–36.
- 285.
Klabbers and Wallendahl 2011, p. 3.
- 286.
Budha 2018, Petition, at 11.
- 287.
Ibid., at 15.
- 288.
Ibid., at 18–19.
- 289.
Ibid., at 21.
- 290.
Budha Ismail Jam v. International Finance Corporation. Brief 2018, at 10.
- 291.
Ibid., at 14.
- 292.
Ibid., at 15.
- 293.
Harrison 2016.
- 294.
Young 2017, p. 913.
- 295.
Budha Ismail Jam v. International Finance Corporation. Oral Arguments 2018.
- 296.
Howe 2018c.
- 297.
Another useful commentary on this case is by Howe 2018b.
- 298.
Rubin v. Islamic Republic of Iran. Petition 2017.
- 299.
Avinesh Kumar v. Republic of Sudan. Response 2018.
- 300.
Republic of Sudan v. Rick Harrison. Brief 2018, at 7.
- 301.
Ibid.
- 302.
Ibid.
- 303.
Ibid.
- 304.
Avinesh Kumar 2018.
- 305.
Ibid., at 1–2.
- 306.
Republic of Sudan v. Rick Harrison. Oral Arguments 2018.
- 307.
Hubbard 2018.
- 308.
Ibid.
- 309.
United States v. Reynolds 345 U.S. 1 (1953).
- 310.
Ibid., at 10.
- 311.
Ibid., at 11.
- 312.
Murray v. The Charming Betsy 6 U.S. 64 (1804).
- 313.
In 1794 the USA and Great Britain signed the Jay Treaty, which resolved the outstanding disputes from the American Revolution and formalised the peaceful relations between the two countries. This treaty excited the jealousy of France, which at the time was at war with Britain. Soon thereafter, French armed vessels began seizing American commercial vessels that traded with their British enemy. French privateers captured many American ships in 1798 and infested American coastal waters thereby crippling the young nation’s foreign commerce. This prompted Congress in 1798 to pass retaliatory legislation authorising American vessels to seize French vessels hovering off the American coast. Thus, began the two-year undeclared “Quasi-War” with France. The USA was firmly placed on a war footing. The Charming Betsy was previously an American owned vessel and later sold to a Dane. Thus the vessel became a neutral ship. In 1800 the Charming Betsy fell into the hands of French privateers. Thereafter, it was unlawfully recaptured on the high seas by Captain Murray of the American frigate, Constellation. At the very same time that the Jefferson Administration was deciding whether to defend Captain Murray’s mistreatment of the now neutral Charming Betsy, it was fighting the Barbary pirates in the Mediterranean. In justifying the first overseas war, it could hardly afford the perception that its own naval officers were insensitive to the principle of freedom for neutral commerce on the high seas. The Court found Murray’s seizure unwarranted.
- 314.
Alford 2006, pp. 1339.
- 315.
Murray 1804, at 118.
- 316.
Alford and Leiner 2001, p. 19.
- 317.
Alford 2006, p. 1344.
- 318.
Ibid., p. 1343.
- 319.
Ibid., p. 1351.
- 320.
Ibid., pp. 1352–1353.
- 321.
Literature regarding judicial deference in times of crisis is voluminous. See Wells and Robbennolt 2004, p. 906.
- 322.
Haig v. Agee 453 U.S. 280 (1981), at 292.
- 323.
Christopher 1982, p. 995.
- 324.
- 325.
Wells and Robbennolt 2004, p. 898.
- 326.
- 327.
Republic of Austria 2004.
- 328.
Ibid., at 736–737.
- 329.
Harisiades 1952.
- 330.
Ibid., at 589. J Frankfurter observed in his concurring opinion:
It is not for this Court to reshape a world order based on politically sovereign States.
Ibid., at 596.
- 331.
Ibid., at 588–589.
- 332.
Chew Heong v. United States 112 U.S. 536 (1884).
- 333.
See Part II, Chap. 6, Sect. 6.1.4, for a discussion of the cases resulting from President Trump’s travel bans.
- 334.
Dames & Moore v. Regan 453 U.S. 654 (1981). A detailed account of this case is provided by Bruff 2009, pp. 369–400. To understand this case and its legacy, it is necessary to revisit the Iranian Hostage Crisis and the legal initiatives that finally resolved it. Important additional insights into this crisis are contained in the decision of the International Court of Justice. United States 1980.
- 335.
Dames 1981, at 662.
- 336.
Mashburn 1985, p. 103, footnote 130.
- 337.
One of the three leading cases regarding the freedom to travel abroad was Kent v. Dulles 357 U.S. 116 (1958). It dealt with the denial of an applicant’s passport because of the applicant’s political beliefs. The Court’s ruling established the ability of an American citizen to journey outside the USA as a constitutionally protected right. Furthermore, such an individual could not be deprived of the freedom to travel without due process of law. Mashburn 1985, p. 94.
The following year the Court limited the broad protection of freedom to travel abroad in Zemel v. Rusk 381 U.S. 1 (1965). This case involved a travel restriction based on foreign policy considerations affecting all citizens. The Court distinguished the right of a citizen to be free from restrictions on travel because of political beliefs and the ability of the government to restrict foreign travel due to policy considerations. It held that the executive had the authority to restrict travel to Cuba.
In Haig 1981 the Court found implied congressional authorisation for Secretary of State Haig to revoke a passport for national security reasons. This case involved Agee, an ex-CIA agent, who began a campaign to expose CIA agents and to interfere with covert CIA activity throughout the world. Part II, Chap. 6, reverts to the issue of passports and the foreign affairs implications of the Court’s decisions in the two cases involving Zivotofsky.
- 338.
Mashburn 1985, p. 99.
- 339.
Ibid., p. 100.
- 340.
Ibid., p. 103.
- 341.
- 342.
Bland 1996, p. 169.
- 343.
Fisher 2017, p. xii.
- 344.
Powell 2009, p. 231.
- 345.
Ibid., p. 196. Emphasis added.
- 346.
Fisher 2017, p. 65.
- 347.
Franck 1991, p. 70.
- 348.
Fisher 2007b, p. 144.
- 349.
Curtiss-Wright 1936, at 320.
- 350.
Fisher 2017, p. 67.
- 351.
Belmont 1937.
- 352.
Koh 1988, p. 1306.
- 353.
Powell 2009, pp. 196–206.
- 354.
Fletcher 2013, p. 261, footnote 84.
- 355.
Herring 2008, pp. 503 and 505–507.
- 356.
Ibid., pp. 504–505.
- 357.
Koh 1990, p. 211.
- 358.
Fisher 2007a, p. 139.
Marshall was defending the authority of President John Adams to carry out an extradition treaty. President Adams was not the sole organ in formulating the treaty. He was the sole organ in implementing it. Furthermore, Marshall held to his position that the making of foreign policy is a joint exercise by the executive and legislative branches (through treaties and statutes), not a unilateral or exclusive authority of the President. With the war power, for example, Marshall looked solely to Congress—not the President—for the authority to take the country to war. Marshall had no difficulty in identifying the branch that possessed the war power: the whole powers of war being, by the Constitution of the USA, vested in Congress, the acts of that body alone should be the guide in such an enquiry. Ibid., pp. 140 and 142–143.
- 359.
Fisher 2017, p. 87.
- 360.
Ibid., p. 68.
- 361.
- 362.
Bradley and Goldsmith 2014 deal with this matter in detail. A few months earlier, Sutherland held the same views in Carter v. Carter Coal Company 298 U.S. 238 (1936).
- 363.
Fletcher 2013, p. 257.
- 364.
Fisher 2017, pp. 69–78.
- 365.
Ibid., p. 69.
- 366.
Fisher 2016, p. 150.
- 367.
Fisher 2017, p. 296.
- 368.
Zivotofsky v. Kerry 576 U.S. 1059 (2015). See Fisher 2018.
- 369.
See Part II, Chap. 6, Sect. 6.1.2.3 for a full discussion of this case.
- 370.
- 371.
Fletcher 2013, p. 259. Part of the answer comes from his early and developing principles when he served as Senator and as Blumenthal lecturer at Columbia University before joining the Court.
- 372.
- 373.
Franck 1992, pp. 14–15.
- 374.
Adler 2002, p. 190.
- 375.
Ramsey 2000, pp. 381, 382 and 437.
- 376.
Goebel 1938, p. 572.
- 377.
Ibid., pp. 572–573.
- 378.
Fletcher 2013, p. 259.
- 379.
- 380.
Patterson 1944, p. 297.
- 381.
Adler 1988, p. 30.
- 382.
Ibid., p. 34.
- 383.
Levitan 1946, pp. 472–478.
- 384.
Glennon 1988, pp. 14 and 15.
- 385.
Lofgren 1973, p. 30.
- 386.
Bland 1996, p. 175.
- 387.
Jackson 1941, p. 201.
- 388.
Franck 1992, p. 17.
- 389.
Ibid., pp. 14 and 15.
- 390.
Koh 1988, pp. 1308 and 1316.
- 391.
Fisher 2016, pp. 175–185.
- 392.
Fisher 2017, pp. 78–79.
- 393.
- 394.
Franck 1991, p. 70.
- 395.
Fisher 2007a quotes this on p. 139.
- 396.
Collins 2018.
- 397.
Fletcher 2013, p. 262. It was as if Sutherland had dispensed judicial “Kool-Aid”.
- 398.
Ibid., p. 247. Youngstown 1952 is dealt with in detail in Part II, Chap. 4, Sect. 4.2.
- 399.
Fletcher 2013, pp. 247, 248 and 250.
- 400.
Whittington 2007, p. 17.
- 401.
Fletcher 2013, p. 250.
- 402.
Hicks 1996, p. 246.
- 403.
Ibid., p. 253.
- 404.
- 405.
Fletcher 2013, p. 213.
- 406.
Hamdan v. Rumsfeld 548 U.S. 557 (2006).
- 407.
Ku and Yoo 2006, pp. 194, 199 and 224.
- 408.
Cohen 2015, pp. 380–448.
- 409.
Collins 2018.
- 410.
- 411.
- 412.
Rossiter 1951, p. 131.
- 413.
Aloe 1982, p. 523.
- 414.
Konar 1980, pp. 98–99.
- 415.
Rosenblum and Castberg 1973, p. 353.
- 416.
Part II, Chap. 4, analyses important rebukes Presidents have suffered.
- 417.
American Insurance Association v. Garamendi 539 U.S. 396 (2003), at 426.
- 418.
Crosby v. National Foreign Trade Council 530 U.S. 363 (2000), at 374.
- 419.
Ibid., at 381.
- 420.
Ibid.
- 421.
Denning and Ramsey 2004, p. 830.
- 422.
First National City Bank v. Banco Nacional de Cuba 406 U.S. 759 (1972), at 773.
- 423.
Baak 2003, p. 1510.
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SCOTUS Briefs
Budha Ismail Jam v. International Finance Corporation. Brief of International Law Scholars. Document 17-1011 of 21 February 2018.
Republic of Sudan v. Rick Harrison. Brief for the United States. Document 16-1094. May 2018.
SCOTUS Cases
Adarand Constructors, Inc. v. Pena 515 U.S. 200 (1995).
Alfred Dunhill of London, Inc. v. Republic of Cuba 425 U.S. 682 (1976).
American Insurance Association v. Garamendi 539 U.S. 396 (2003).
Baker v. Carr 369 U.S. 186 (1962).
Banco Nacional de Cuba v. Sabbatino 376 U.S. 398 (1964).
Barclays Bank PLC v. Franchise Tax Board of California 512 U.S. 298 (1994) cite as 114 S. Ct. 2268 (1994).
Bas v. Tingy 4 U.S. 43 (1800).
Boumediene v. Bush 553 U.S. 723 (2008).
Brown v. Board of Education 347 U.S. 483 (1954).
Bush v. Gore 531 U.S. 98 (2000).
Carter v. Carter Coal Company 298 U.S. 238 (1936).
Chew Heong v. United States 112 U.S. 536 (1884).
Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp. 333 U.S. 103 (1948).
Commercial Trust Co. v. Miller 262 U.S. 51 (1923).
Crosby v. National Foreign Trade Council 530 U.S. 363 (2000).
Dames & Moore v. Regan 453 U.S. 654 (1981).
Ex Parte Milligan 71 U.S. (4 Wall.) 2 (1866).
Ex Parte Republic of Peru 318 U.S. 578 (1943).
First National City Bank v. Banco Nacional de Cuba 406 U.S. 759 (1972).
Goldwater v. Carter 444 U.S. 996 (1979).
Haig v. Agee 453 U.S. 280 (1981).
Hamdan v. Rumsfeld 548 U.S. 557 (2006).
Harisiades v. Shaughnessy 342 U.S. 580 (1952) cite as 72 S. Ct. 512.
Holder v. Humanitarian Law Project 561 U.S. 1 (2010).
Holtzman v. Schlesinger 414 U.S. 1304 (1973).
Hudson v. Guestier 8 U.S. 293 (1806).
Japan Whaling Association v. American Cetacean Society 478 U.S. 211 (1986).
Johnson v. Eisentrager 339 U.S. 763 (1950).
Kent v. Dulles 357 U.S. 116 (1958).
Kimble v. Marvel LLC cite as 135 S. Ct. 2401 (2015).
Korematsu v. United States 323 US. 214 (1944).
Little v. Barreme 6 U.S. 177 (1804).
Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803).
Myers v. United States 272 U.S. 52 (1926).
Missouri v. Holland 252 U.S. 416 (1920).
Mitchell v. United States 386 U.S. 972 (1967).
Mora v. McNamara 389 U.S. 934 (1967).
Murray v. The Charming Betsy 6 U.S. 64 (1804).
National Labor Relations Board v. Noel Canning 134 S. Ct. 2550 (2014).
New York Times Co. v. United States 403 U.S. 713 (1971).
Nixon v. United States 506 U.S. 224 (1993).
Oetjen v. Central Leather Co., 246 U.S. 297 (1918).
Prize Cases 67 U.S. 635 (1863).
Republic of Austria v. Altmann 541 U.S. 677 (2004).
Republic of Mexico v. Hoffman 324 U.S. 30 (1945).
Reynolds v. Sims 377 U.S. 533 (1964).
Roe v. Wade 401 U.S. 113 (1973).
Rubin v. Islamic Republic of Iran cite as 138 S. Ct. 816 (2018).
Samantar v. Yousuf 560 U.S. 305 (2010).
Schooner Exchange v. McFaddon 11 U.S. (7 Cranch) 116 (1812).
Talbot v. Seeman 5 U.S.1 (1801).
The Antelope 23 U.S. 115 (1825).
The Star 16 U.S. 92 (1816).
Trump v. Hawaii cite as 138 S. Ct. 2392 (2018).
United States v. Belmont 301 U.S. 324 (1937).
United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936).
United States v. Lee 106 US 196 (1882).
United States v. Pink 315 U.S. 203 (1942).
United States v. Reynolds 345 U.S. 1 (1953).
Verlinden B. V. v. Central Bank of Nigeria cite as 103 S. Ct. 1962 (1983).
W. S. Kirkpatrick & Co. v. Environmental Tectonics Corp. International 493 U.S. 400 (1990).
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952).
Zemel v. Rusk 381 U.S. 1 (1965).
Zivotofsky v. Clinton 566 U.S. 189 (2012).
Zivotofsky v. Kerry 576 U.S. 1059 (2015).
SCOTUS Oral Arguments
Budha Ismail Jam v. International Finance Corporation. Oral Arguments on 31 October 2018.
Republic of Sudan v. Rick Harrison. Oral Arguments on 7 November 2018.
SCOTUS Petitions
Avinesh Kumar v. Republic of Sudan. Document No. 17-1269 of 9 April 2018. Response to the Petition for a Writ Certiorari.
Budha Ismail Jam v. International Financed Corporation. Document No. 17-1011 of 19 January 2018.Petition for a Writ of Certiorari.
Republic of Sudan v. Rick Harrison. Document No. 16-1094 of 9 March 2017. Response to the Petition for a Writ Certiorari.
Rubin v. Islamic Republic of Iran. Document 16-534 of 17 October 2017. Petition.
Federal Statutes
Alien Tort Statute of 1789, 28 U.S.C. § 1350.
Diversity Statute of 1982, 28 U.S.C. § 1332.
Foreign Sovereign Immunities Act (FSIA) of 1976, 28 U.S.C. §§1330 and codified as amended at 28 U.S.C. §§ 1602–1611 (2006).
International Organizations Immunities Act (IOIA), Public Law No. 79-291, 59 Stat. 669 (1945) as codified as 22 U.S.C. § 288.
International Court of Justice Case
United States v. Iran on 24 May 1980. (General List No. 64).
Other Documents
Opinions of the Office of Legal Counsel (Op. O.L.C.). Department of Justice. Vol. 20, 1996.
National War Powers Commission Report. Miller Center of Public Affairs, University of Virginia, July 2008.
The White House Press Release, 16 November 2018.
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Eksteen, R. (2019). SCOTUS (Segment A). In: The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-295-8_3
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