Friends, Enemies, and the Fog of Foreign Relations: How ‘Political Question’ Doctrines Thwart the Development of a Principled Alien Tort Jurisprudence
Posted: 16 Sep 2012
Date Written: September 15, 2012
The political question doctrine, in its various forms, mediates the use of public power, including the power of the court to decide certain cases. This has led to various debates about scope of this preclusion, and whether courts can fulfill their role reviewing the constitutionality of actions by the political branches without improperly encroaching on their policy space. The doctrine does not, however, preclude civil actions between private litigants, including most cases brought under the Alien Tort Statute (ATS). Why then have federal courts so routinely refused to hear ATS cases, citing the principle that they raise non-justiciable political questions? In the case Corrie v. Caterpillar, for example, no constitutional challenge was made to any branch of government, nor was the court asked to overturn policy judgments of the political branches. Yet the case was dismissed under the political question doctrine. One possibility, frequently cited, is that such cases touch upon issues of 'foreign relations,' which automatically belong to the political branches. In this Article, I will raise a more disturbing possibility: that when faced with cases that involve foreign powers, the courts have interpreted the political question - already a hybrid of constitutional principle, prudence, and procedure - as allowing for an invidious notion of 'the political,' one promoted in an earlier period by the German legal theorist Carl Schmitt. Schmitt notoriously defined 'the political' as the primal distinction, and domain of struggle, between 'friends and enemies.' Such a definition has rarely entered the American political lexicon, and our jurisprudence has steered clear of it, and yet the political branches have intervened on ATS cases to demarcate friends and foes, and U.S. federal courts seem to interpret the political question doctrine as requiring judicial abdication in these cases. In the case of Caterpillar, where the state involved was a ally of the U.S., the case was found to be non-justiciable. In other cases, where 'enemies' may be involved, cases might proceed. I do not argue that federal judges and government lawyers have read Schmitt or been influenced by him, but they do inadvertently accept, and perhaps even vindicate, his notion of the political. In so doing, they also thwart the possibility of developing a principled Alien Tort jurisprudence, one which can decide upon the facts of cases and not with the attitudes of particular administrations towards particular foreign powers.
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