Below is the abstract for “The Political Question Doctrine and International Law,” available for download on SSRN.
Under the political question doctrine, some issues are deemed to be inappropriate for judicial resolution. The modern version of the doctrine is typically traced to the Supreme Court’s 1962 decision in Baker v. Carr, in which the Court listed six reasons why an issue might be treated as political. Although the doctrine has received significant scholarly attention, most modern commentary has overlooked the historic relationship between the doctrine and international law.
As this essay documents, the political question doctrine emerged in part to allow the political branches, rather than the courts, to make determinations about this country’s – and other countries’ – rights and responsibilities under international law. Understanding this historic role of the doctrine sheds light on issues of foreign relations law that are not typically thought to involve political questions: treaty non-self-execution, the later-in-time rule, sovereign immunity, the act of state doctrine, and the domestic status of customary international law. It also helps us better understand some of the ways in which the lower federal courts apply the political question doctrine today.