Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?

By Thomas M. Franck | Go to book overview
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CHAPTER EIGHT
A Rule of Evidence in Place of the
Political-Question Doctrine

HOW MUCH of a wrench would it be were U.S. courts to adapt and adopt a doctrinal approach similar to the one used by German judges? As we have seen, American judges have failed to impose uniformity, thereby leaving open the possibility of reform even while demonstrating the need for it. Further, there is evidence that the German approach is not really so alien to our jurisprudence.

In 1837, Chief Judge Cranch of the D.C. Circuit Court wrote an opinion that presaged the German jurisprudence. It categorically refutes the doctrinal basis for judicial abdication underpinning the political-question doctrine. At issue was whether the postmaster general of the United States could be ordered to pay a debt owed to one Stokes. Attorneys for the executive branch had argued that an order of mandamus to an officer acting under presidential authority would constitute a judicial attempt “to control the executive power, to assume the functions of the president, and to make [judges] the executive in the last resort.” In granting the order nevertheless, Cranch replied that this “argument rests, almost entirely, upon the force of the word ‘control’; which implies an interference with some right or power of the person to be controlled. To command a person to do what, by law, he is bound to do, and what he has no right to refuse to do, is not to control him in the exercise of any of his functions, but to compel him to execute them. Before it can be shown that such a mandamus would control the executive in any of its functions, it must appear that the executive has a discretion to do or not to do the thing commanded.” 1

This summarizes the tendency of at least some U.S. courts to reject the theory that the separation of powers requires judicial deference to the executive branch's views concerning the scope of its constitutional powers. Except in foreign affairs, such skepticism has long been the predominant jurisprudential mode. In the broad American

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