Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Global Affairs

By Martin S. Flaherty

Princeton University Press, 344 Pages, $35

In his seminal book, The Imperial Presidency (1973), Arthur Schlesinger observed that the U.S. Presidency was out of control, exceeding its constitutional limits, and accumulating power at the expense of Congress, particularly in foreign affairs. Like Schlesinger, Prof. Martin S. Flaherty laments the executive branch's over-accumulation of power, but instead focuses on the diminution of federal judicial power in foreign affairs. In his new book, Flaherty convincingly argues that this trend is not only contrary to the intent of the Constitution's framers, but it also encroaches on the role federal courts played in foreign affairs during the first century of the republic.

Flaherty holds a professorship at Fordham Law School, where he focuses on constitutional law, history, foreign affairs, and international human rights. In addition to teaching abroad and participating in human rights missions on four continents, he has chaired both the Council on International Affairs and the Committee on International Human Rights at the New York City Bar Association.

At a time when a historic power struggle is unfolding between the three branches of the federal government, the book is both timely and necessary. The presidency of Donald Trump is creating opportunities for both Congress and the courts to reassert themselves.

Regarding the federal courts, Flaherty argues that this reassertion finds great support in the framers' understanding of the separation of powers. The government structure adopted by the framers rejected the imperial executive government of King George III, the hallmark of which was to govern by decree. This portion of the book provides an excellent historical analysis of the origins of the separation of powers, noting that the "Founding generation" should be heeded because it benefited from "an unparalleled period of experimentation in the art of government."

The framers' intent was perhaps best elucidated by James Madison, who wrote in The Federalist, No. 51 that: "The danger of accumulation of all powers, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny." As such, the framers devised a system of checks and balances that institutionalized a power struggle, in which the three branches were granted separate powers and the means to defend them from the encroachments of the other branches.

Flaherty notes that, between 1789 and 1898, the executive branch remained in a state of becoming. As the United States emerged as a global power, however, the president acquired more powers, particularly in foreign affairs. This trend diluted the separation of powers, at the expense of both Congress and the courts. Flaherty's main theme is that the judiciary "must commit itself to reclaiming its historic role precisely because—rather than despite the fact that—a case or controversy involves foreign affairs."

The author observes that the "Constitution's text confirms that separation of powers flourishes as fully in foreign affairs as in domestic." Indeed, Article III states that judicial power extends to federal laws (some of which deal with foreign affairs), treaties, and cases involving diplomats, admiralty, and disputes between states (or its citizens) and foreign states (or its citizens or subjects).

During the Supreme Court's early years, it issued numerous decisions that ensured that the U.S. would "live up to its international commitments, including and especially when these established individual rights." As noted by the author, these decisions were consistent with the views of the first Chief Justice, John Jay, who wrote in The Federalist, No. 3 that it was of "high importance to the peace of America that she observe the laws of nations toward [all powers with whom she has treaties and other relations]."

The book identifies the three general ways that the federal courts historically "enforced federal laws and rights in the context of foreign affairs." First, federal courts did so "for the purpose of checking the states," including striking down state laws that violated the Treaty of Paris (1783). Second, federal courts did so "for the purpose of limiting congressional excesses through artful interpretation of quasi-wartime federal statutes." Third, the federal courts did so by refusing to defer to the president's "interpretation of treaties," rejecting the president's contention that he "could violate the law of nations absent congressional authority," and "generally upholding Congress's own checks on presidential foreign affairs assertions."

Beginning with the presidency of William McKinley (1897-1901), however, the "factors that had once helped ensure a robust judicial role in foreign affairs reversed and accelerated."

With the Spanish-American War (1898), the United States suddenly became a global power. Over the next 30 years, Presidents McKinley, Theodore Roosevelt (1901-09), and Calvin Coolidge (1923-29) all sent troops overseas without the approval of Congress. Roosevelt expanded on the executive's implied and assumed powers by setting up new regimes in several Caribbean countries without congressional approval. And during the early years of WWII, President Franklin Roosevelt (1933-45) declared both a limited national emergency (September 1939) and an unlimited national emergency (May 1941) prior to the United States' entry into the war.

The author posits that these and other engagements in foreign affairs "shifted initiative to the executive, which in turn sought to maximize its authority in relation to Congress and the courts." He also observes that the "influence in legal positivism and the effects of nineteenth-century isolation led to the relative diminution of the law of nations in the American legal community."

According to the author, the Supreme Court enhanced the judiciary's retreat from foreign affairs in U.S. v. Curtiss-Wright Export (1936), which held that the president serves as the nation's "sole organ" in international relations, is vested with significant powers over foreign affairs, and that these powers are implicit in the president's constitutional role as head of the executive branch.

While the author lauds the Supreme Court's subsequent decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that President Harry S. Truman (1945-53) exceeded his executive powers during the Korean War when he ordered seizure of the steel mills without congressional authorization, he laments that the federal courts have not pushed back enough.

Since the 1960s, foreign affairs have increasingly expanded beyond the traditional one nation interacting with another. As described in Part III of the book, individual branches of governments have tended towards dealing independently with comparable branches of other governments. The author believes that this trend has benefited the executive branch more than it has Congress and the courts.

The best part of the book analyzes how since 9/11 the Supreme Court has defended international human rights standards against an executive branch that has leaned heavily on its purported foreign affairs expertise. In Hamdi v. Rumsfeld (2004), the court rejected President George W. Bush's (2001-09) national security arguments that restricted the due process rights of Guantanamo detainees. In Rasul v. Bush (2004), the court held that the federal habeas corpus statute also applied to the Guantanamo detainees. In Hamdan v. Rumsfeld (2006), the court pushed back against the executive's treaty interpretations, rejecting the assertion that "unlawful enemy combatants" are not protected under the Third Geneva Convention.

While the author applauds these cases, he also notes that the courthouse doors have been unfairly closed by the executive branch's frequent invocations of the "state secrets privilege" and "political question doctrine," both of which he argues should be permanently retired. The author's gripping description of the plight of Maher Arar, a Canadian-Syrian engineer who U.S. authorities seized at JFK Airport and transported to a Middle East "rendition site," where he was beaten and tortured, exposes shocking abuses of power. Later, the innocent Arar sued several Bush administration officials for violations of his due process rights and the Torture Victims Protection Act. In response, the executive branch moved to dismiss based on the state secrets privilege. The motion was granted and affirmed on appeal, and the Supreme Court denied certiorari. As a result, Arar was denied his day in court.

In July 2019, President Trump exclaimed in a speech that, under Article II, "I have the right to do whatever I want as president." The president's expansive view of executive power worries the author, who argues that Trump's lack of "knowledge, experience, and temperament" should prompt the judiciary to reclaim its formerly robust role in foreign affairs. In so arguing, the author states that the Supreme Court missed a prime opportunity to do so in Trump v. Hawaii (2018), which upheld Proclamation No. 9645, the Muslim Travel Ban.

In conclusion, the author asserts that the Supreme Court should stand up to the president to "say what the law is," even in foreign affairs. The book concludes that Youngstown is a reminder that the judiciary possesses the power "to maintain the rule of law, the Constitution, and with them, basic rights[.]"

Jeffrey M. Winn is an attorney with the Chubb Insurance Group, a global insurer, and is a member of the executive committee of the New York City Bar Association.