Cohen: Formalism and Distrust: Foreign Affairs Law in the Roberts Court

Harlan Grant Cohen (Univ. of Georgia - Law) has posted Formalism and Distrust: Foreign Affairs Law in the Roberts Court (George Washington Law Review, forthcoming). Here's the abstract:

When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence.

The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state laws, and the scope of the political question doctrine, among others. Looking back at those decisions, this Article notes and explores a stark and surprising trend. Across a string of decisions, from Hamdan v. Rumsfeld through Medellin v. Texas, Morrison v. National Australia Bank, Zivotofsky v. Clinton, Kiobel v. Royal Dutch Petroleum Co., and potentially soon Bond v. United States, the Court has jettisoned its traditional foreign affairs functionalism in favor of formalism.

The shift, as the Article explains, is not merely rhetorical or stylistic. Embedded within these opinions is a deep distrust of the Executive Branch, Congress, and the courts. And embraced by a surprising number of Justices across different wings of the Court, this formalism of distrust has brought constraints on the discretion of federal government deeper and more powerful than have been seen in some time. Foreign affairs formalism, with all of its implications, is the new reality — one that must be understood and watched.