New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

41 ARIZ. ST. L.J. _ (forthcoming 2009)

Abstract

This Article uses insights from international relations theory to challenge the received wisdom that U.S. courts are incompetent to decide foreign affairs issues. Since September 11 in particular, proponents of broad executive power have argued that the Judiciary lacks the Executive’s expertise, speed, flexibility, uniformity, and political savvy necessary in foreign affairs. For these reasons, legal doctrine has long called for especially strong foreign affairs deference to the Executive.

This Article argues that special deference is grounded in an outmoded version of the popular theory of international relations known as realism. Realism views the world as anarchic, nations as opaque to the outside world, and geopolitics as though a few great powers manage the international system through realpolitik and the balance of power. When incorporated into constitutional foreign affairs law, these realist tenets lead to a model that prioritizes executive branch competences over judicial ones, but offers little guidance on how to weigh foreign affairs effectiveness against other constitutional values such as liberty and accountability.

The author proposes a new, “hegemonic” model of desired institutional competences in foreign affairs law that takes account of the transformed post-Cold War world. America dominates the globe militarily, has a political system accessible to outsiders, provides public goods for the world, and plays a dominant role in defining enforceable international law. This American hegemonic order will persist for some time despite threats posed by terrorism and the rise of powers such as China and Russia. Under the hegemonic model, courts serve America’s foreign affairs interests by maintaining stable interpretation of the law and bestowing legitimacy on acts of the political branches. Special deference is now unwarranted. This Article concludes by explaining why Boumediene v. Bush and other recent enemy combatant cases are consistent with the hegemonic model.

Date of Authorship for this Version

January 2009