The separation of the powers of American government is some of the best wisdom we profess to offer the international democratic revolution of the late twentieth century. Ironically, as to the domestic judicial arena closest to international legal development, international civil litigation, separation of powers fails fundamentally as a description of the relationship of the judicial and the |political' branches. In international cases, courts of the United States adjudicate the foreign relations of the United States frequently, aggressively, and importantly. It is not the government of delimited powers we reify in our constitutional lectures to the international community.
A charade of separation of powers does serve, however, to mask the reality. There is a remarkable, and intriguing, refusal of U.S. jurisprudence to acknowledge the courts' involvement in foreign policy-making. The denial is a backhanded recognition that the idealized separation of powers has gone awry. The denial is so profound as to be institutionalized. It appears in a body of case law and statutory authority that purports to keep the courts out of foreign policy, while making that role possible through a refined set of intellectual manipulations.
Separation of the judicial and executive branches in relation to foreign policy never was a very precise description of the American system of government. Even when the courts of the United States are acting properly judicial, foreign relations may be involved. As Justice Brennan observed in articulating the now classic statement of the political question doctrine in Baker v. Carr,(1) "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."(2)
In contemporary international litigation, however, there is critical foreign policy-making by the courts that cannot be justified, historically or functionally, as within the capacities of the judicial branch. The relevant considerations are those underlying the political question doctrine(3) and its related formulation in the international context, most importantly in Banco Nacional de Cuba v. Sabbatino.(4) As Justice Harlan explained in Sabbatino and as the judiciary often does recognize in international cases, the courts lack the necessary informational resources, the ability to adjust to diplomatic nuance and timing, and the appropriate remedial resources to respond to the international political dynamic.(5) Their public nature inherently conflicts with the requirements of international political dispute resolution.(6) Their process, the methodology of the common law, is fundamentally at odds with the dynamic process of power adjustment that is the stuff of international diplomacy.(7)
Notwithstanding the ostensible acceptance and legitimacy of these propositions, the evaluation of foreign policy considerations by the courts has dramatically increased in recent times. The phenomenon here described is a by-product of an historic watershed--now popularly called the "globalization" of economy and communications. In response to this epic development, legal doctrines that distinguish international civil litigation have been interpreted to allow for foreign policy evaluation and implementation on a grand scale. Accommodation occurs through a specious acceptance of the legitimacy of legal labels. The preeminent areas of the law involved are sovereign immunity, the act of state doctrine, and, to a lesser extent (though more openly), the "interest balancing" areas of forum non-conveniens and extraterritorial jurisdiction. These are all areas where courts are deciding whether to abstain from adjudication or otherwise limit its scope. Whether deciding to adjudicate or to abstain, United States courts are divining foreign policy.
The phenomenon is little understood. But the need to understand it is great. Judicial foreign policy-making through the very doctrines thought to be the tools of judicial restraint is a fundamental abdication of our constitutional legacy. …