Jide Nzelibe
91 Geo. Wash. L. Rev. 1476
This Article argues that foreign affairs polarization in the United States is likely to result in increased judicial oversight in foreign affairs. The reasons are fivefold. First, increased polarization often leads to dramatic swings in foreign policy across electoral cycles, which is likely to disrupt the reliance interests of not only foreign states but also domestic private parties. Second, domestic private parties who can demonstrate that they have suffered concrete injuries to their reliance interests due to foreign policy instability may be more likely to overcome standing and other conventional obstacles to bringing claims. Third, in an era of polarization, government regimes may tend to encourage reliance by domestic private parties as a strategy to lock in policy and constrain the options of their successors. But when the government deliberately encourages reliance, it should bear the risks of foreign policy instability rather than domestic private parties. Fourth, courts are less likely to defer to presidential judgments in foreign affairs when they believe policy swings are motivated largely by partisan, rather than institutional, considerations. Fifth, on a more speculative note, there is a risk that the precedents and doctrines forged by courts in the resolution of low stakes private disputes involving reliance interests may then be deployed in cases where the stakes are much higher, such as controversies where parties are seeking injunctive and declaratory relief against the President.
