The Courts and Foreign Affairs at the Founding

66 Pages Posted: 20 Jun 2019

See all articles by Kevin Arlyck

Kevin Arlyck

Georgetown University Law Center

Date Written: 2017


When should the courts defer to the executive branch in foreign affairs? This question — which dominates discussion over the proper role for the judiciary in the United States’ relations with the rest of the world — presupposes an inevitable opposition between judicial decisionmaking and executive branch policymaking. On the standard account, the president takes action in foreign affairs, and the courts acquiesce (usually) or resist (occasionally).

But what if the dynamic between the branches in foreign affairs was complementary, rather than oppositional? What if the executive, rather than asserting plenary authority to structure the nation’s foreign relations, sought to delegate to the courts significant responsibility for resolving questions with critical importance for foreign affairs? And what if the judiciary accepted or declined not based on ideas about the scope of presidential authority, but out of consideration for international comity and its own institutional interests?

To explore this idea, this article looks at the Constitution’s first decade, a time when the Washington Administration actively sought to give the federal judiciary significant authority for responding to the nation’s first major diplomatic crisis. Beginning in 1793, French maritime attacks launched from the United States against Great Britain threatened to drag the new nation into an international war it likely could not survive. Convinced of the necessity of remaining neutral, the Washington Administration sought a means of responding to the wartime demands of one side without giving offense to the other.

The answer lay in the courts. Contrary to standard presidentialist accounts of early foreign relations, by delegating to the courts responsibility for resolving disputes over British property captured by French warships operating from the United States, the executive sought to mobilize the institutional resources of a coequal branch of government to manage a controversy it had neither the will nor the means to address. As this article establishes, however, federal judges resisted the administration’s recruitment effort, evincing grave doubts about the propriety, under treaty and the law of nations, of assuming jurisdiction over such cases. Though in many respects judges supported the administration’s goals, in their decisions they made clear that the executive branch’s policy priorities would need to be balanced against the judiciary’s own institutional concerns and interests.

While current scholarship on the relationship between the courts and the president in foreign affairs largely focuses on questions of deference, the Neutrality Crisis tells us a different tale, one in which judicial decisionmaking complements executive branch policymaking, rather than undermines it. Accordingly, the account presented here reminds us that executive primacy and judicial acquiescence are not the only ways to think about executive-judicial relations in foreign affairs. At the same time, judicial skepticism in the 1790s about the wisdom of becoming enmeshed in foreign affairs disputes suggests that judges themselves might not always agree.

Keywords: federal courts, foreign affairs, separation of powers, legal history, Washington, Jefferson

Suggested Citation

Arlyck, Kevin, The Courts and Foreign Affairs at the Founding (2017). 2017 BYU L. Rev. 1. Available at SSRN:

Kevin Arlyck (Contact Author)

Georgetown University Law Center ( email )

Washington, DC

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