Mandated Adjudication: Act of State
and Sovereign Immunity
JUDGES, when they refuse to take jurisdiction over foreign-affairs cases, purport to be deferring to the political branches' superior wisdom in such matters and to the need for secrecy, speed, unison, and flexibility in defense of the national interest. In most of the cases we have examined, this judicial reticence sails under the flag of the political-question doctrine. When they apply that doctrine, the courts purport to be following the intent of the Constitution. In particular, the more deferential judges perceive their reticence as strengthening the capacity of the political branches to carry out assigned responsibilities in dealing with foreign states and governments.
This makes it significant that Congress and the president in recent years have taken the initiative in actually requiring courts to decide two categories of disputes in which judges have habitually acted with deliberate reticence. Applying two abdicationist legal theories—the act of state doctrine and the doctrine of sovereign immunity—judges had refused to decide large categories of foreign-affairs claims precisely because they believed the politicians and diplomats better positioned to resolve disputes testing the legitimacy of foreign governments' laws and activities. While the courts claimed to be deferring to foreign laws and governments, in practice they were deferring to the U.S. political branches, which were thought better suited to dealing with the effects of laws and actions of foreign states.
Notably, Congress and the president, regarding both juridical doctrines, have enacted laws in recent years mandating that courts decide rather than abdicate. This refusal by the political branches to tolerate judicial deference is highly suggestive. Evidently, the president and Congress do not take for granted that judicial reticence in foreign-affairs and national-security matters invariably advances the national interest. More important, the recent history of legislation to compel the courts to decide some foreign-affairs cases and the courts' agreement to do so, albeit sometimes given grudgingly, strongly suggest