Stare Decisis and Foreign Affairs

July 11th, 2011

Michael Van Alstine has a interesting new piece in the Duke Law Journal that looks at how Courts treat stare decisis when deal with matter of foreign affairs–in a word, the analysis is “nuanced.”

This article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debates—historical, institutional, normative—since the very founding of the republic. Precisely because of the sensitivity of the subject, the Supreme Court itself has both cautioned about the judicial branch’s comparative lack of expertise in the field and recognized a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this, however, neither the Supreme Court nor any scholar has ever examined the complicated relationship between these two significant fields of law. The article first sets the context with an analysis of the foundations of stare decisis. After a review of the values that animate the doctrine, it explores the subtly important jurisdictional premises of stare decisis. Almost entirely overlooked by courts and scholars, these inherent jurisdictional limitations on the force of precedent have direct implications for the proper place of stare decisis in foreign affairs law. The article then examines the special constitutional arrangement of powers in the field, and in particular the respective roles of Congress and the Executive. But of equal significance, the article also canvasses the multiplicity of avenues by which our legal system now channels foreign affairs issues to the enforcement authority of federal courts. This growing inter-branch tension highlights the significance of reflexively cloaking the resultant judicial precedents with full stare decisis effect. The analysis in Stare Decisis and Foreign Affairs demonstrates that in fact a more nuanced and accommodating understanding of precedent is required for certain fundamental aspects of foreign affairs law. For purely domestic statutes, fidelity to the value judgments first made by Congress within and for our domestic legal system should avoid both the fact and appearance of independent judicial agency in foreign affairs lawmaking. Moreover, where Congress takes it upon itself to define the entire content of the law—without importing international legal norms—the courts need look only to familiar domestic sources and materials in interpretive inquiries. Matters are different, however, for the broad and expanding field of controversies that likewise fall within the Article III “judicial Power” but involve the courts in the enforcement of rights or obligations founded in international law. In this field, the analysis in this article demonstrates that the likelihood and consequence of judicial error are greater; that precedents are particularly susceptible to rapid erosion by exogenous forces of change; and that institutional considerations make judicial leadership fortified by rigid precedent particularly problematic in the first place. It ultimately concludes that these distinct considerations should function as an additional “special justification” for reexamining international law precedents. Consistent with the systemic values of stare decisis, however, the reexamination power should exist only for the issuing court; lower courts in our hierarchically integrated judicial branch—the vertical dimension of stare decisis—should remain bound by precedents to the full extent of existing law.

I wrote about a similar issue in Youngstown’s Fourth Tier: Is There A Zone of Insight Beyond the Zone of Twilight?, co-authored with Liz Bahr in the Memphis Law Review. In this article we look at how Courts balance between formalism and funcitonalism when construing the President’s powers over foreign affairs (and specifically the commander in chief powers).

We specifically address the role that stare decisis plays in a number of these cases. In order to avoid straight-jacketing future courts, judges are loath to lay down binding, strict precedents. From our conclusion:

Since Justice Jackson articulated his three-tiered framework for analyzing separation-of-powers issues, the Supreme Court has issued two types of cases: cases that fit within the original Youngstown framework, where the Court can employ a formalist analysis of the issues at hand, and cases that push the framework into an implicit Tier Four, where the Court can employ a functio- nalist analysis of the issues at hand, thus avoiding dangerous precedent. This flexible approach reinforces now Chief Justice Roberts’ caution that even in contemporary times, the Supreme Court must continue to “calmly poise the scales of justice”291 to ensure that the delicate constitutional balance between the execu- tive, the legislature, and the judiciary remains fluid and function- ing.

The prevalence and success of Justice Jackson’s framework to analyze the President’s Article II powers also sheds light on why it is that judges, regardless of their normal judicial predispositions, may find a functionalist approach to national security-related sepa- ration-of-powers issues a more efficient and safe way to calmly poise the scales of justice. In fact, this Article has shown, through an analysis of Dames & Moore and the detention cases, that al- though petitioners, respondents, and the Court itself may make formalist arguments on the limits of unenumerated Article II pow- ers, most parties ultimately tend to conclude with an overall func- tionalist assertion. Although a formalist analysis may maintain clear constitutional roles for the branches of government, lead to more predictable results, and provide more guidance for future presidential actions, these very factors may themselves turn out to be the dangerous precedent the Court is attempting to avoid.

Interesting read.