Professor Harlan Grant Cohen
83 Geo. Wash. L. Rev. 380
When it comes to foreign relations, the Roberts Court has trust issues. As
far as the Court is concerned, everyone—the President, Congress, the lower
courts, plaintiffs—has played hard and fast with the rules, taking advantage of
the Court’s functionalist approaches to foreign affairs issues. This seems to be
the message of the Roberts Court foreign affairs law jurisprudence.
The Roberts Court has been active in foreign affairs law, deciding cases
on the detention and trial of enemy combatants, foreign sovereign immunity,
the domestic effect of treaties, the extraterritorial reach of federal statutes, the
preemption of state laws, and the scope of the political question doctrine,
among others. Looking back at those decisions, this Article notes and explores
a stark and surprising trend. Across a string of decisions, from
Hamdan v. Rumsfeld through Medellin v. Texas, Morrison v. National Australia
Bank Ltd., Zivotofsky ex rel. Zivotofsky v. Clinton, Kiobel v. Royal
Dutch Petroleum Co., and Bond v. United States, the Court has jettisoned its
traditional foreign affairs functionalism in favor of formalism.
The shift, as the Article explains, is not merely rhetorical or stylistic.
Embedded within these opinions is a deep distrust of the executive branch,
Congress, and the courts. And embraced by a surprising number of Justices
across different wings of the Court, this formalism of distrust has brought
about constraints on the discretion of the federal government that are deeper
and more powerful than have been seen in some time. Foreign affairs formalism,
with all of its implications, is the new reality—one that must be understood
and watched.
