Peter Spiro linked to this paper in the post noted yesterday, but it deserves its own post here — Harlan Cohen (University of Georgia School of Law) has posted Formalism and Distrust: Foreign Affairs Law in the Roberts Court (George Washington Law Review, Vol. 83, 2014, forthcoming) on SSRN. Here is the abstract:
When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence.
The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state laws, and the scope of the political question doctrine, among others. Looking back at those decisions, this Article notes and explores a stark and surprising trend. Across a string of decisions, from Hamdan v. Rumsfeld through Medellin v. Texas, Morrison v. National Australia Bank, Zivotofsky v. Clinton, Kiobel v. Royal Dutch Petroleum Co., and potentially soon Bond v. United States, the Court has jettisoned its traditional foreign affairs functionalism in favor of formalism.
The shift, as the Article explains, is not merely rhetorical or stylistic. Embedded within these opinions is a deep distrust of the Executive Branch, Congress, and the courts. And embraced by a surprising number of Justices across different wings of the Court, this formalism of distrust has brought constraints on the discretion of federal government deeper and more powerful than have been seen in some time. Foreign affairs formalism, with all of its implications, is the new reality — one that must be understood and watched.
I agree entirely with the descriptive aspects of the article. One might add some further cases to those mentioned in the abstract (some of which are mentioned in the article), including those highlighting a textual turn in foreign affairs statutes: for example, the Torture Victim Protection Act case Mohamad v. Palestinian Authority; and multiple Foreign Sovereign Immunities Act cases, especially Samantar v. Yousuf (and, one hopes, soon Republic of Argentina v. NML Capital). I think there are a few that cut the other way, as the article also notes, such as Boumediene v. Bush, but the war on terror cases seem to belong in their own category.
I would say, though, that the article strains too hard to hint at something negative in all this. I wouldn't ascribe it to "trust issues" (though it's surely true that other actors had taken advantage of the Court's functionalism — and, even more so, its deference to other actors in foreign affairs). My description would be: the Court is finding a way to bring the rule of law back to foreign affairs cases. There's nothing sinister about that — and it's consistent (again as the article says) with the current Court's formalist tendencies elsewhere. It's not "distrust" — anymore than the Court's enforcement of legal rules against political branch actors in other areas is distrust. Instead it's what courts do, or at least what they ought to do.
Posted at 6:01 AM