COURTS AND FOREIGN AFFAIRS: "THEIR HISTORIC ROLE".

• Author: Ramsey, Michael D.
• Position: Book review

RESTORING THE GLOBAL JUDICIARY: WHY THE SUPREME COURT SHOULD RULE IN U.S. FOREIGN AFFAIRS. Martin S. Flaherty.* Princeton: Princeton University Press, 2019. Pp. xiv + 325. $35.00 (Hardcover).

In a November 2019 address to the Federalist Society's National Lawyers Convention. U.S. Attorney General William Barr declared (among other things) that U.S. courts have taken on too great a supervisory role over the President, especially in foreign affairs. (2) Coincidentally, a book published two months earlier argued the exact opposite. In Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs, Professor Martin Flaherty of Fordham Law School and Princeton University contends that U.S. courts are not doing enough to restrain the President and defend human rights in cases implicating foreign affairs and national security. (3)

As the book's title indicates, Professor Flaherty--a historian as well as a legal academic--takes a predominantly originalist/traditionalist approach. Restoring the Global Judiciary argues that the Constitution's text and the Framers' understanding of it contemplate an active checking and protective role for the courts generally--and particularly in foreign affairs, because foreign affairs offers the greatest risk of abuse by the political branches. Moreover, the book argues, courts traditionally undertook that role through the late-eighteenth and nineteenth centuries, when courts routinely resolved foreign affairs disputes on the merits, often ruling against the executive branch. Only relatively recently, the account runs, have courts begun to use various gatekeeping doctrines to vindicate growing reluctance to interfere in foreign affairs controversies. The book acknowledges that modern courts do entertain some foreign affairs disputes, and even rule against executive policy at times, but it sees modern courts at something of a crossroads: the rise of gatekeeping doctrines and foreign affairs avoidance is competing with the courts' historical engagement, pushing one way in some cases and the other way in others. The book's call, then, is for courts to "reclaim their historic role" (p. 255). (4)

Restoring the Global Judiciary is a particular challenge to those who exalt text, history, and tradition to guide constitutional decision-making. The modern rise of originalism and related approaches has occurred alongside decisions signaling concern over judicial involvement in foreign affairs, and calls for reduced judicial involvement in foreign affairs are often--as in Attorney General Barr's address--linked with praise for originalist-oriented adjudication. (5) Yet, if Professor Flaherty is right, originalism's rise should enhance, not reduce, courts' willingness to constrain the foreign affairs executive.

This Review argues that Professor Flaherty is partly right. In particular, he is right about his three central historical points. First, the Constitution's text and the Framers' design placed the judiciary in a checking role expressly to protect the separation of powers and individual rights. Second, this general design extended to--and indeed was perhaps particularly appropriate to--foreign affairs, where the dangers of presidential overreaching might be the greatest. And third, courts did commonly decide foreign affairs-related cases in the first century of constitutional history, including ruling against the executive. Restoring the Global Judiciary gives an insightful, balanced and engaging account of this history that should prove highly persuasive.

Yet this Review also argues that Restoring the Global Judiciary deemphasizes substantial historical checks on the judiciary's role. The Constitution did not create the judiciary as a supervisory force above the other players in the constitutional system. Rather, the courts are actors within the system restrained by its explicit limits, by their assumed institutional role, and by judicial prudence about the role courts can constructively fill. Failing to embrace these limits leaves Restoring the Global Judiciary with a grander vision of the courts than text and history actually support.

First, the Constitution and its background assumptions limit the judiciary in various respects, some general and some specific to foreign affairs. Professor Flaherty complains about the proliferation of gatekeeping doctrines preventing courts from reaching the merits (political question doctrine, territoriality, non-self-executing treaties, etc.). Often he is right that the modern scope of these doctrines exceeds their historical foundations. But, for the most part, they are not modern inventions. The Constitution restrained courts as it restrained other branches of government. Second, beyond textual and doctrinal limitations, early courts played only a modest role in foreign affairs matters. While the book rightly recounts the range of foreign affairs cases early courts decided, it implies too much about their importance. It is hard to identify any case in the courts' early years that forced a substantial revision of U.S. foreign policy. That modesty, too, is part of the courts' "historic role."

More fundamentally, Restoring the Global Judiciary overstates the courts' role in the emergence of a powerful foreign affairs executive. The Constitution itself provided the President with a substantial independent role in foreign affairs. (6) And of central importance to modern law, Congress has delegated enormous and largely unconstrained foreign affairs powers to the President. (7 8) Thus, even if courts were to reach the merits of foreign affairs controversies more frequently, the results might more likely uphold rather than check executive power. And if the modern foreign affairs executive greatly exceeds the Framers' design, the chief culprit is not the courts' restraint, hut Congress' abdication.

In sum, this Review concludes, neither the Attorney General nor Professor Flaherty is wholly correct about the courts' historic role in foreign affairs. Courts have long been involved in foreign affairs, and the Constitution and its Framers deliberately established them in that role. Originalist and traditionalist materials do not support a general outlook that courts should avoid foreign affairs controversies or leave U.S. foreign policy entirely to the executive. But the courts' historic foreign affairs role has been modest, constrained both by text and institutional design and by judicial caution. (8) And in any event, courts are neither the principal cause nor the likely remedy for excessive presidential foreign affairs power.

Part I of this Review describes and largely endorses Restoring the Global Judiciary's basic project, which is to use originalist and traditionalist methods to defend an active role for U.S. courts in foreign affairs cases. Part II describes historical limitations on that role based in text and institutional background and discusses the modest role courts in practice played in early U.S. foreign policy. Part II further suggests that the original Constitution endorsed a foreign affairs executive more powerful than Professor Flaherty would prefer, and that, for modern expansions beyond that role, Professor Flaherty's principal concerns should be with Congress rather than the courts.

1. COURTS AND FOREIGN AFFAIRS IN THE FOUNDING ERA AND BEYOND

   This Part describes Restoring the Global Judiciary's, basic argument. As noted, the book's central premise is that courts have come to question, and to some extent abandon, their traditional robust role in resolving controversies touching foreign affairs. Accordingly, its most important sections are those describing what it calls (pp. 7, 255) the courts' "historic role." The book acknowledges and defends its adoption of an originalist/traditionalist approach (pp. 8-11), but that defense is not its main point. Rather, the target audience is those who are already inclined toward historical arguments and are interested in how those arguments run in foreign affairs disputes.

   1. COURTS, SEPARATION OF POWERS, FOREIGN AFFAIRS AND THE FOUNDING

      The book's first step is to highlight the Constitution's focus on separation of powers and the courts' role in defending that separation (pp. 23-63). The Constitution's focus on separation of powers is unlikely to be controversial, and indeed is something of a cliche, but Professor Flaherty's recounting is eloquent and insightful. Particularly notable is his emphasis on the Constitution's creation of a (relatively) powerful executive to counter the tendency of legislative overreach and to provide executive leadership with energy and decisiveness (pp. 34-41). (9) Creation of this powerful position fostered fears of executive overreach (and indeed tyranny), thus focusing the Framers' attention on power-checking as well as power-enhancing provisions (pp. 40-44).

      Perhaps somewhat more controversially, the book emphasizes the creation of a new and independent federal judiciary as part of the check (pp. 41-44). While acknowledging that few in the Founding Era could have foreseen the modern scope of judicial review (p. 43), Professor Flaherty rejects the suggestion that judicial review is a post-ratification invention. Rather, he sees it as an inevitable, if underdeveloped, aspect of separation of powers and of the courts' role as independent adjudicators. As he concludes, "Marbury, in short, in asserting judicial review, confirmed a power that was neither novel by that time nor modest in light of the circumstances" (p. 44). And, though the most immediate application of judicial review in the Framers' minds likely was unconstitutional state actions, there was no reason in principle or practice to think it would not extend to executive actions as well, particularly in light of the Framers' concern over enhanced executive power. (10)

      The book's second step is to show that the Constitution's concern for separation of powers extended to foreign...