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U.S. courts have long held that executive branch views about a lawsuit’s potential impact on foreign affairs are entitled to deference. Although the courts have emphasized that executive branch views are not binding, they rarely rejected them prior to the presidency of George W. Bush. This historically deferential approach took a dramatic turn during the Bush administration, when the executive branch informed the courts that a series of human rights cases against corporate defendants threatened important U.S. foreign policy interests, including national security. Remarkably, the courts permitted most of the claims to proceed despite the administration’s concerns. This record is even more striking given that all of these cases were decided during the era of heightened concern about national security that followed the attacks of September 11, 2001.Under the traditional standard of judicial deference to executive branch foreign policy concerns, the courts have held that some determinations are constitutionally committed to the executive branch, and, on those issues, follow the views of the executive branch with little or no scrutiny. In areas constitutionally assigned to the judiciary, such as statutory interpretation, courts generally do not defer. Between these two extremes, difficult deference questions arise when a court considers whether it should refrain from deciding a case otherwise properly within its jurisdiction because the executive branch claims that judicial resolution will interfere with foreign policy. The courts often defer to such opinions, but stress that they are not bound to follow those views. The courts have not, however, clearly articulated a standard to guide their evaluation of the deference due to executive branch submissions.In this Article, I derive a standard from the language of past decisions that explains, in part, the failings of the Bush administration submissions. In order to merit deference, an administration submission must: (1) articulate the relevant policy interests; (2) explain how the litigation could harm those interests; (3) tie the anticipated harm to one of the recognized foreign policy justiciability doctrines; and finally, (4) offer explanations that are reasonable, drawing conclusions that are well-founded and supported by the facts. The Bush administration corporate-defendant submissions have failed to satisfy this basic test.
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