Role of Courts in Foreign Affairs
The United States is one of the nations with the most developed democracy. However, the democracy of the United States is sometimes hindered by the constitutional process. The United States government has specific arms of governments, each with unique constitutional roles and tasks. Sometimes when a dispute occurs, the judiciary is tasked with solving such issues.
On the other hand, the executive is tasked with making decisions, which are based on political question doctrine. An example of such a decision is the action by president George Bush to send the United States military to the Persian Gulf, in the interest of peace. Congress felt that such an action was unlawful, and the president, together with the executive, undermined the constitutional voice of the congress. However, the court could not rule on such an issue since matters regarding political questions demand a single voice statement form the government. This paper focuses on the functions of the courts in the United States regarding foreign affairs.
Introduction
On the 2nd of August 1990, the president of the United States sent military troops to the Persian Gulf. (Koh, 247). It was a move by the president, George Bush, to deter Iraq’s invasion of Kuwait. Iraq had invaded Kuwait at the moment, and the president wanted to stop the aggression by Iraqi and maintain the integrity of Saudi Arabia. Several other steps were taken, which were in conjunction with presidential orders and congress acceptance. The united nation Security Council also approved these steps, which included sanctions to Iraq. In the years that followed, the president announced an increase in the military troops deployed in the Persian Gulf. The objective pushed by then the president of the United States was “an adequate offensive military option.” The president viewed this as a necessary option to force Iraq to withdraw from Kuwait. Don't use plagiarised sources.Get your custom essay just from $11/page
President’s actions have been supported by various houses of representatives and the senate. They both expressed support for the president’s actions and input in the Persian Gulf War. However, congress was involved in making the decision. This is because the president made an immediate order to invade Iraq’s troops. The congress held that such an action is denying them their constitutional powers. In their assertion, the congress held that the president ought to have consulted with congress. According to congress, it was unlawful for the president to declare war without concurrence with the congress. Congress pursued the action concerning Article 1, section 8, clause 11 of the American constitution. The congress argued that declaring war on Iraq by the president denied and undermined the voice given to congress by the constitution. They pursued a motion for a preliminary injunction. The motion was dismissed by the department of justice, which was acting on behalf of the president. The congress not satisfied moved for summary judgment.
In another case titled, Ange v.Bush, the plaintiff sued for preliminary injunctions. (Koh, 247). The plaintiff as well wanted the motion by the defendant dismissed and parties taking summary judgment. The plaintiff as well claimed that the president of the United States, acted unlawfully, deploying him into the Persian Gulf War. He cited that the action exceeded the president’s authority, as depicted within the American constitution. Upon listening to the motion and the arguments presented by the counsel, the courts dismissed the parts of the motion that challenged the president’s action of deploying military troops into the Persian Gulf. The court held that the allegations presented a non-justiable political question, which was not in any way ripe for judicial review. The court, however, offered a summary judgment to the plaintiff.
Iraq, in response to the deployment of the United States military, held that they considered themselves involved in a holy war. (Clark, Scott 669) This meant that they were prepared to retaliate anytime. This is a cause of worry and tension for even a country as great as the United States. In the years of the Persian Gulf War, the Iraqi military started using United States citizens as a human shield against the attacks of the United States. Most of the United States citizens in Iraq were caught up in the war and suffered as collateral damage. This move could not have happened if the president of the United States had not declared war on Iraq. However, looking back at what could have happened if the United States never took action, the results would be far more devastating. Iraq’s apprehension of Kuwait brought about so many adverse effects to the people of Kuwait. Therefore, the United States, as a superpower, had an obligation to intervene. However, the constitutional process has some clauses, which hinder the president from making decisions indipendebtly. For instance, declaring war should be a decision arrived at by the congress in consultation with the president. Nevertheless, it should be noted that the president has the power to declare war when deemed necessary without consulting congress. The scenario in the Persian Gulf War was one of these instances that the president has to apply his veto powers in making a decision that is urgent and necessary for the sake of peace and security.
Article 1, section 8, Clause 11 of the American constitution gives the congress power to declare war. The amendments to give the congress these powers were arrived at after many considerations. The key players felt that it could be unwise vesting all the powers to declare war on a single person. This is because of the hostility of humans and the possibility of misuse of the powers. However, it should be noted that the congressional powers to declare war does not stand alone. The congressional powers are accompanied by the executive powers granted to the president, as articulated in article 11 sections one clause 2. (Lobel, Jules. 115). Executive powers are vested on the president of the United States of America, who is also the commander in chief of the armed forces. Being a commander in chief means that the president is at liberty to give orders to the military. As such, the president can use the executive powers granted to him by the executive to declare war.
However, the position of the department of justice renders it practically impossible to isolate the powers to declare war. The department asserts that various designs of the constitution should be made concerning war and other military related provisions. The department of justice holds that the harmonization of the congressional and presidential powers to declare war is a political and not a legal issue. In other words, this department relies on the doctrine of a political question.
Political Doctrine Question
This doctrine is based on power separation and the limits of the judiciary. (Henkin, Louis. 597-675). The department of justice asserts that certain military actions regarding the declaration of war depend on the sound judgment of the political branches. On that note, the question surrounding American forces in the Persian gulf constitutes an act of war or an offensive military option by the president is not objective factual but is based on the exercise of judgment by the president regarding foreign affairs. The department argued that the judiciary does not have manageable or discoverable standards to apply. The department claimed only the political branches could determine whether the country is at war or not. In a sense, the department of justice meant that such decisions are based on political judgment.
The assertion by the department was far too explicit to be accepted by the courts. For one, the department asserted on behalf of the executive. This could mean that they were being used to push a specific narrative. A narrative that probably seeks to justify the actions of the president and undermine the congress’s voice. The executive powers determining any specific offensive military action like the one in the Persian Gulf is an act of war, is a language construed to be evading the constitution. Every democratic country has a constitution. The constitution is a set of documents that guides the governing of a country. (Lobel, Jules. 115). It has declarations and sections explaining the tasks and responsibilities of various arms of the government. It also seeks to explain the powers vested upon the president, and the other arms of government, and their harmonization. Therefore, asserting that the executive alone can determine whether a specific military action is not an act of war is a violation of the constitutions. The judiciary is tasked with interpreting the constitution. As such, the courts defying with the assertion of the department was based on the provision of the constitutions. This begs the question; what are the roles of courts, especially in matters regarding foreign affairs, wars, and power disputes.
The Role of Courts
In the United States, the federal judiciary has a different operating system from the executive branch. Although the executive and the legislature operate differently from the federal judiciary, their work is often harmonized by the constitution. Congress is responsible for passing federal laws. The president of the United States usually signs the federal laws passed by congress. The judiciary arm of the United States is responsible for determining the constutionality of the federal laws passed by congress. It is also responsible for solving any dispute that may arise over the federal laws. However, still, the judges are dependent on the executive arm of the government in enforcing decisions made in the court. This overly shows all the arms of the government should work in tandem for the betterment of service delivery for the people of the United States.
The courts in the United States are responsible for deciding what is right or wrong legally. They decide whether a person is guilty or not. They also determine the punishment to be offered for guilty individuals. Courts in the United States provide a peaceful way of solving disputes among individuals and the state. Disputes and crimes depend on their extent. As such, different cases are solved at different courts. In the United States, there are several types of federal courts. In this excerpt, the focus shall be on the Supreme Court.
The supreme court of the United States was created under article 3 of the United States. Congress was authorized to pass laws establishing this court and a system of lower courts. These lower courts include courts of appeals, bankruptcy and appellate panels, district courts, bankruptcy courts, and article 1 courts. Article 1 courts are the following; courts of appeal for veteran claims, appellate court for the armed forces, and the United States tax court. The congress has established all these courts under the Supreme Court. In a sense, the Supreme Court is the highest in the United States. Disputes that cannot be solved in other courts are referred to higher courts until they get to the Supreme Court. The decision reached by the Supreme Court is ultimate and cannot be reversed. This is to show that the supreme court of the United States has so much power. In that sense, the Supreme Court ought to have been involved in the decision to deploy United States army personnel into the Persian Gulf. The Supreme Court could have averted the decision by the president to send United States troops into fighting the army. Or better still, the court should have interpreted the decision by the president as either an offensive military response or an act of war. Unfortunately, the Supreme Court never got involved at all. This gives one the feeling that the United States Supreme Court agreed with the department of justice that the decision was a mere political judgment and that the courts could not have manageable standards to deal with the issue. However, we have seen the court system strongly disagreeing with the department that the decision was a political judgment. That begs the question, what is the role of the Supreme Court in the United States, especially in matters regarding foreign affairs, war, and power disputes.
War is a specific component of foreign affairs. Despite being a small component of foreign relations, they affect the nations involved greatly. The constitution of the United States gave the president powers to appoint ambassadors as well as receiving grants. The crafters of the constitution of the United States did not want to give the president maximum powers as those experienced with the European monarchs. The limited power granted to the president of choosing and appointing foreign ambassadors gives them the authority to carry out foreign affairs. However, due to limitations and challenges witnessed with leaders who have maximum power and authority, the constitution of the United States gave the congress a voice. The congress can be cobnstrued as the constitutional tool that ensures the president is in check and does not make decisions that may ultimately affect the people of the United States. The president of the united states has the freedom to make treaties with the foreign nation. However, some matters, such as the declaration of war, requires the approval of the congress.
As such, one gets to wonder what happens when congress and the president are not in terms. As earlier indicated, the United States congress was given a constitutional voice to limit the powers and authority of the president. Then, does it mean that the president cannot make decisions in times of urgency without consulting congress?. In the United States, the president requires a two-thirds approval by the senate and the congress before making a major decision, especially one dealing with national security.
The judiciary in the United States gives little guidance on matters regarding the executive and legislature. Whenever issues are raised regarding foreign policies, the courts of the United States often invoke the political question doctrine. This is to mean that the court most often supports such actions by the executive or refuses to judge them. This is the principle of the supreme court of the United States. It forms the position of the court on such issues. As earlier indicated, the Supreme Court is the highest court in the land and most powerful. Therefore, their decisions stick and is followed by other courts. In many cases, the decisions by the Supreme Court are used to form the future basis of the ruling.
Justice William Brenan, who was a judge at the supreme court of the United States, explained the circumstances that would force the judiciary to abstain from the ruling. A case involving political question doctrine obligates the courts of the United States to abstain from the ruling. According to the judge, such an issue demands a single voiced view stated by the government. (Glennon, Michael 814-821). Although Justice William attempted to give tis explanation, a lot of confusion arose among lower courts. They were not made to understand what issues are non-justiable.
Moreover, they did not get to understand the approach of the court in cases that have the appearance of political questions. As such, it could be understood why congress was raising claims over the actions of the president when he deployed the United States military in the Persian Gulf. Congress felt that their constitutional voice was being undermined. They needed the court to rule the issue and declare preliminary judgment. However, the decision by the court to decline this offer could now be understood. The issue of deploying the United States in the Persian Gulf was of a political question. As such, that matter required a single voice statement issued by the government. The president is the head of the government gave his voice.
The president of the United States and the executive are the beneficiaries of the court rulings on the issue regarding foreign policies. This is to mean that the views of the political branches define some issue in the United States. The political branch of any government is significantly under the influence of the ruling president. The president heads the executive, which formulates issues that can be regarded as based on the question of political question doctrine. Therefore, the judiciary-especially the courts- do abstain themselves from issues regarding political questions.
To sum up, the courts of the United States have some boundaries they cannot surpass. Issues regarding political questions are not dealt with by the court. These issues are dealt with by the executive arm of the government. The congress was given constitutional powers to ensure that the president and the executive do not overstep their mandate. However, in cases of urgency, which deals with matters of political questions, congress should abstain and let the president carry pout judgment calls. As such, the move by the president of the United States in 1990 to release the military in the Persian Gulf was based on a political judgment.
Works Cited
Clark, Scott D. “Questioning the Constitutional Distribution of War Powers in the Wake of the Iraqi Crisis and Operation Desert Shield/Storm.” S. Ill. ULJ 15, (1990): 669.
Glennon, Michael J. “Foreign Affairs and the Political Question Doctrine.” American Journal of International Law 83.4 (1989): 814-821.
Henkin, Louis. “Is There a” Political Question” Doctrine?.” The Yale Law Journal 85.5 (1976): 597-625.
Koh, Harold Hongju. “Presidential war and congressional consent: The law professors’ memorandum in Dellums v. Bush.” Stan. J. Int’l L. 27 (1990): 247.
Lobel, Jules. “Prolonged solitary confinement and the Constitution.” U. Pa. J. Const. L. 11, (2008): 115.