Political Questions Judicial Answers Does the Rule of Law Apply to Foreign Affairs 1st Edition by Thomas M Franck ISBN 1400820731 9781400820733

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ISBN 10: 1400820731 
ISBN 13: 9781400820733
Author: Thomas M Franck

Almost since the beginning of the republic, America’s rigorous separation of powers among Executive, Legislative, and Judicial Branches has been umpired by the federal judiciary. It may seem surprising, then, that many otherwise ordinary cases are not decided in court even when they include allegations that the President, or Congress, has violated a law or the Constitution itself. Most of these orphan cases are shunned by the judiciary simply because they have foreign policy aspects. In refusing to address the issues involved, judges indicate that judicial review, like politics, should stop at the water’s edge–and foreign policy managers find it convenient to agree! Thomas Franck, however, maintains that when courts invoke the “political question” doctrine to justify such reticence, they evade a constitutional duty. In his view, whether the government has acted constitutionally in sending men and women to die in foreign battles is just as appropriate an issue for a court to decide as whether property has been taken without due process. In this revisionist work, Franck proposes ways to subject the conduct of foreign policy to the rule of law without compromising either judicial integrity or the national interest. By examining the historical origins of the separation of powers in the American constitutional tradition, with comparative reference to the practices of judiciaries in other federal systems, he broadens and enriches discussions of an important national issue that has particular significance for critical debate about the “imperial presidency.”

Political Questions Judicial Answers Does the Rule of Law Apply to Foreign Affairs 1st Table of contents:

Chapter One: Introduction
Chapter Two: How Abdication Crept into the Judicial Repertory
The Faustian Pact
Double-Entry Bookkeeping
Chapter Three: Two Principled Theories of Constitutionalism
Chapter Four: Prudential Reasons for Judicial Abdication
The Factual Evidence Is Too Difficult
No Applicable Legal Standards
Too Much at Stake
Judges Cannot Compel the Executive
Chapter Five: When Judges Refuse to Abdicate
Security and Foreign-Policy Interests v. Property Rights
Security and Foreign-Policy Interests v. Civil Rights
Congressional v. Executive Powers
Chapter Six: Mandated Adjudication: Act of State and Sovereign Immunity
Act of State
Foreign Sovereign Immunity
Chapter Seven: Abolishing Judicial Abdication: The German Model
German Judges on Whether to Decide
German Judges on How to Decide
Chapter Eight: A Rule of Evidence in Place of the Political-Question Doctrine
Evidentiary Weight
Chapter Nine: The Special Cases: In Camera Proceedings and Declaratory Judgments
The Need to Preserve Secrecy
The Less Confrontational Remedy: Declaratory Judgment
Chapter Ten: Conclusions: Does the Rule of Law Stop at the Water’s Edge?

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Tags: Thomas M Franck, Political, Judicial