© 1993, The American Society of International Law
The American Journal of International Law,
July, 1993 (87 A.J.I.L. 465-467)
Political Questions/Judicial Answers:
Does the Rule of Law Apply to Foreign Affairs?
By Thomas M. Franck.
Princeton University Press, 1992.
By Carl Landauer (California Bar)
Edited by Detlev Vagts
Thomas Franck's new book provides an elegant and at times emotional argument against the use of the political question doctrine by U.S. courts to abstain from deciding cases that touch upon foreign policy. Troubled by the resulting lacuna in the rule of law, Franck writes: "Judicial deference ignores the evident truth that in our system a law that is not enforceable by adjudicatory process is no law at all" (p. 8). Accordingly, a "foreign policy exempt from judicial review is tantamount to governance by men and women emancipated from the bonds of law" (id.).
To make his argument, Franck begins by tracing the political question doctrine back to what he calls a "Faustian pact" entered into by John Marshall. Franck believes that in order to assert the Court's power of judicial review over other important realms, Marshall traded away its ability to decide cases in the realm of foreign policy. In essence, Marshall adopted a line of British case law segregating the foreign policy realm as being nonjusticiable as a "relatively inexpensive 'giveback' to throw to the political branches and the states" (p. 12). Franck then chronicles the development of Marshall's trade-off into a matter of orthodoxy for the federal judiciary, finding its crystallized form in Justice Sutherland's dicta in Curtiss-Wright in 1936. But, Franck notes, despite repeated invocation of the doctrine, many of the courts invoking it seemed not to have taken its teaching entirely to heart, for they would make pious references to the doctrine while nevertheless deciding the case on the merits or, after abstaining from adjudication, feel free to explain how the case should be decided on the merits. In all this, Franck discerns "a powerful whiff of hypocrisy" (p. 30). In essence, he sees a result-oriented judiciary intent on confirming the foreign policy decisions of the Executive, whether doing it on the merits or by judicial restraint in the particular case.
Having undercut the intellectual integrity of the courts voicing the political question doctrine, Franck concentrates his criticism on the rationales given for relying on it. To those who believe that judges are not competent to deal with the factual aspects of foreign affairs cases, Franck responds that foreign policy cases would not create especially difficult evidentiary problems for our "sophisticated federal judicial system" (p. 48). To those who believe that issues in foreign affairs create problems of applicable legal standards, Franck answers that courts are well practiced in dealing with vague areas of law. To those who believe that courts cannot interfere with foreign policy because the stakes are too high, Franck answers that most uses of the political question doctrine are not "in the midst of military hostilities, the one circumstance in which some form of judicial reticence might seem warranted" (p. 58), and he adds that the real harm to the national interest results from the refusal to apply legal standards to those conducting our foreign policy. To those who believe that the judiciary is in no position to confront the President, he insists that "judicial legitimacy depends on a willingness to challenge, when it is not justified to accommodate, political authority" (p. 60).
After these point-by-point responses to the federal judges who have used the political question doctrine in the realm of foreign affairs, Franck turns to the good news: the judges who refuse to dismiss foreign policy cases as nonjusticiable. Yet, despite the narrowing numbers of judges directly applying the political question doctrine, Franck points out that those who find foreign policy cases justiciable remain respectful enough to the doctrine to contrive some way to appear not to be directly violating it. Nevertheless, the list of cases in which the political question doctrine was not adopted is, for Franck, a source of encouragement. But Franck is encouraged, more than by this rather uneven record, by the German judiciary, which provides for him a usable model of a judiciary that, while giving German foreign-policy makers a good deal of latitude, refuses to allow foreign policy to be made outside the rule of law. And, after suggesting several strategies for judges in the United States similarly to provide room for the foreign-policy makers within the rule of law, Franck concludes with the moral force of his opening: "To make the law's writ inoperable at the water's edge is nothing less than an exercise in unilateral moral disarmament. It is a strategy urgently in need of judicial review" (p. 159).
Franck's book is first and foremost a moral argument about the political question doctrine rather than a historical examination of it. Thus, despite his forays back to early modern England and John Marshall, he does little to give his reader a strong historical sense of the development of the doctrine. By proceeding topically rather than chronologically -- placing judges who adopt the doctrine and those who do not in separate chapters -- Franck has made a conscious decision that his subject does not need historical narrative. But by making that decision, he has lost a good deal of the "why" of his story. The "why" is, of course, important to him: otherwise, he would not have cataloged the arguments mustered for the doctrine. But it is finally impossible to understand the real stakes involved in the construction and articulation of a judicial doctrine without close historical analysis.
At the simplest level, Franck's book would have benefited from greater attention to the dates of the cases he cites -- dates too often buried in footnotes rather than appearing as an integral part of the story. Franck is quite aware of exactly which cases involve wartime fact patterns and which do not. He tells us, for example, that when Justice Sutherland turned to the political question doctrine in the 1937 Belmont decision, the "occasion for this abdication of judicial review was not a war or even a crisis but a perfectly ordinary decision made by the federal government in the course of normal diplomacy" (pp. 50-51). But Franck's attention is usually on the time when the cause of action arose rather than on the time the opinion was written. Thus, in analyzing William O. Douglas's opinion in United States v. Pink, Franck describes the factual background of the case through the 1920s and 1930s, but he omits the fact that the 1942 Pink case was decided shortly after the United States entered the Second World War and at a time when Allied fortunes were at their lowest -- which is to say, a time when courts were least likely to encumber executive action. Thus, despite the fact that Douglas did not deem the case nonjusticiable, it should not surprise Franck that "even Douglas was not wholly immune to the thaumaturgic invocation of 'foreign policy'" (p. 52).
Franck is, of course, not deaf to historical context. He points to the fact that certain cases are Vietnam War-era cases and elsewhere mentions that a Supreme Court case emerged "[a]t the height of the cold war" (p. 55). But, for the most part, the historical context in which judges make their decisions is not a priority for him. This is as true of his discussion of the German model as it is of his discussion of United States courts. In dealing with foreign policy cases, Franck tells us, our courts would do well to learn from the German courts, which have maintained an activist role. He notes that the stakes are not the same, that German courts are not burdened with the knowledge that their foreign-policy makers set the geopolitical agenda. But he does not make clear that this is only part of the context of the [activism] of the German courts, for the German judiciary carries its own burden -- an understanding among Germans that their courts played an irresponsible role in the disintegration of the Weimar Republic. Indeed, many practices of the present-day German Government were adopted under the shadow of the Third Reich. If Franck sees in the German courts an insistence that no aspect of governance escape the rule of law, it is because German judges, as most Germans, are deeply aware of what it means to be without a Rechtstaat -- a realm governed by law. "In a Rechtstaat," Franck writes in his chapter on the German model, "the final responsibility for the protection of this constitutional order must rest squarely with the court" (p. 110). He tells us, moreover, that "[t]hat is what the rule of law means in Germany" (id.), but he does not explain the part that the trauma of a painful past played in the development of these judicial attitudes.
Similarly, Franck does not focus too sharply on the changing stakes of the foreign policy powers of the White House over the long career of the political question doctrine. In the present, for example, the power of the Executive in foreign affairs is clouded by the memories of the Vietnam War and the free-lance foreign policy of Iran-contra. At the same time, Americans in recent decades have etched in their memories a picture of the two Kennedy brothers silhouetted against the Oval Office window, heads bowed in thought over the spiraling events of the Cuban missile crisis. All of that helps to define the stakes involved when courts decide whether a foreign policy case is justiciable. And it is just such images, parts of the collective imagination, that help to explain the development of the doctrine.
Nevertheless, the development of any judicial doctrine is part of a larger, intricate jurisprudential history. In his story, Franck identifies Felix Frankfurter as an "inveterate defender of the political-question doctrine" (p. 54). But he does not go on to place the doctrine in the larger story of judicial restraint and weave his discussion of the political question doctrine with a discussion of judicial restraint as espoused by Frankfurter and Learned Hand. Judges like Frankfurter and Hand were almost always serious about the doctrines they espoused. Yet, as mentioned above, Franck finds a good deal of inconsistency -- even hypocrisy -- in opinions invoking the political question doctrine. As he tells us in his introduction, part of his aim is to describe the "doctrinal cacophony" surrounding the doctrine. Locating varying levels of genuine commitment to the doctrine, including instances in which its invocation forms little more than an obligatory gesture, should, however, be part of the analysis of the doctrine's meaning rather than merely a point of attack. As difficult as it is to discern the real motivations behind the logic of any particular opinion and as challenging as it is to uncover the true reason for each use of a judicial doctrine, it is only by delving deeper into the "why" of the various uses of the political question doctrine that one can provide a concrete sense of the meaning of the doctrine for its proponents over the years, and thereby add depth to Franck's strong statement against it.
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