Foreign Hard Look Review

Abstract

For decades, courts and scholars have been engaged in a protracted and largely polarized debate over a seemingly simple question: how should courts address cases that implicate foreign affairs? On the one hand are those who seek expansive deference to the Executive’s conduct of foreign affairs. On the other are those who argue that the courts must enforce the rule of law in foreign affairs cases lest they abdicate their responsibility to keep the Executive in check. This Article provides an alternative approach to the judicial role in foreign relations cases — one that navigates between judicial abdication and judicial entanglement. It argues that administrative law’s doctrine of hard look review can be usefully applied to many situations of executive foreign policymaking. Foreign hard look review would allow the courts to exercise their duty to prevent arbitrary and capricious decisionmaking while still preserving the Executive’s expertise in foreign affairs. In areas of foreign relations law as diverse as the political question doctrine, the President’s completion power, national security deference, the Executive’s power to violate customary international law, and the making of executive agreements and other international obligations, foreign hard look review provides a way for courts to fulfill their constitutional role without encumbering the Executive’s making of foreign policy.

Keywords: Foreign Relations Law, Administrative Law