Constitutional Law - Political Question Doctrine - Ninth Circuit Holds That Whether the President May Conclude a Treaty with Hong Kong Does Not Constitute a Political Question

Harvard Law Review, May 2006 | Go to article overview

Constitutional Law - Political Question Doctrine - Ninth Circuit Holds That Whether the President May Conclude a Treaty with Hong Kong Does Not Constitute a Political Question


The political question doctrine mandates that the political branches, rather than the courts, determine the constitutionality of certain courses of action. Since the doctrine requires courts to recognize the President's discretion over many aspects of foreign affairs, judicial treatment of the doctrine is often intertwined with issues of sovereignty. However, courts have been woefully unclear about the meaning of the term "sovereignty" and have, as a result, imprecisely applied the political question doctrine in foreign affairs cases involving determinations of sovereignty. Recently, in Wang v. Masaitis, (1) the Ninth Circuit held that whether the President could conclude a treaty with a nonsovereign-in this case, Hong Kong-did not constitute a political question, and, on the merits, the court held such a treaty constitutional. (2) In its political question analysis, the court relied on the deceptively ambiguous term "nonsovereign" to assume an antecedent, executive determination of Hong Kong's status vis-a-vis the United States. By subjecting the President's decision to conclude a treaty with Hong Kong to judicial review, the court appropriated a portion of the foreign affairs discretion that the Constitution commits to the President.

In 1997, the United Kingdom returned control of Hong Kong to China, which adopted a "one country, two systems" policy to govern the territory. (3) In anticipation of the transfer, China promulgated the Basic Law, which serves as Hong Kong's constitutional document. (4) Prior to the transfer, a treaty between the United States and the United Kingdom governed extradition relations between the United States and Hong Kong. (5) In 1997, the United States and Hong Kong, with China's consent, concluded an extradition agreement, which the Senate ratified as a treaty by the requisite two-thirds vote. (6)

In 2003, a Hong Kong magistrate issued a warrant for the arrest of Michael Wang, and, after a formal extradition request by Hong Kong, a U.S. magistrate judge issued an order certifying Wang's extraditability. (7) The magistrate judge found that probable cause supported the charges against Wang and that the extradition agreement was constitutional. (8) Wang sought habeas relief, contesting both findings, (9) but the district court adopted the magistrate judge's report and recommendation denying habeas corpus. (10) The court found that the extradition agreement was a constitutional treaty, reasoning that the Constitution does not define the term "treaty" and that every prior federal court evaluating the agreement had found it constitutional. (11) The court also found probable cause supporting the charges against Wang. (12)

The Ninth Circuit affirmed. Writing for the panel, Judge Hawkins13 held that, under the Constitution's Treaty Clause, (14) the United States may conclude a treaty with a nonsovereign entity. (15) Before reaching the merits, the court found that the issue did not implicate the political question doctrine and was therefore justiciable. (16) Judge Hawkins explained that although discerning an entity's sovereignty is clearly a political question, courts may interpret the legal impact of an antecedent executive determination of sovereignty. (17) To determine whether the constitutionality of the treaty was a justiciable question, the court applied the Baker v. Carr (18) test, as distilled into three factors in Justice Powell's concurrence in Goldwater v. Carter. (19) First, the court found no textually demonstrable commitment of the issue to a coordinate branch, arguing that the Constitution is silent regarding treatymaking with nonsovereigns. (20) Second, the court determined that analogy to the Indian treaty cases provided judicially manageable standards. (21) Third, the court concluded that adjudication on the merits would not compromise the nation's ability to speak with one voice in the field of foreign affairs because, even if the court were to invalidate the treaty, the President could accomplish the same ends through an executive agreement or legislation. …

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