American statistics index ; Mode of access: Internet. ; Vols. for 19 - have supplement: Foreign affairs research special papers available. East Asia and Pacific area, ISSN 0270-6342; for have supplement: Foreign affairs research special papers available. Near East, South Asia, and North Africa, ISSN 0270-8914; for 1971/75- have supplement: Foreign affairs research special papers available. Union of Soviet Socialist Republics, ISSN 0271-0226.
How should courts handle cases that implicate foreign relations or national security? What weight should courts give to the executive branch's view of the law in these matters? To date, one can identify in the jurisprudence of the U.S. Supreme Court no less than four theoretical approaches—varying by the degree of judicial deference due to the executive—that suggest competing visions about the constitutional role of courts in these areas. Each approach has been criticized fiercely for either abdicating the constitutional duty of the courts or obstructing the nation's pursuit of its security and foreign policy objectives. Absent a clear principle guiding when to apply each approach, courts invoke these approaches intermittently, generating considerable confusion. Current doctrine is missing a framework for mediating tensions between the four approaches. This Article seeks to fill that gap. It draws from the Margin of Appreciation (MoA), a doctrine international courts, especially in Europe, use widely to calibrate the level of deference owed to the principal decision-maker in separation of powers and human rights issues. Compared to parallel doctrines courts traditionally apply, the MoA offers a sophisticated framework for addressing deference claims by the executive. The doctrine provides courts criteria for optimizing the mode of their review, disciplines judicial decision-making, and reduces costs of judicial errors in matters of national importance. This Article reconstructs the MoA as a domestic law doctrine. It makes the necessary adaptations for "domesticating" the MoA and develops criteria for considering deference claims in a variety of foreign affairs and national security matters. In doing so, this Article demonstrates how a domestic MoA approach can generate more nuanced judicial engagement with foreign affairs, encourage deliberative decision-making by policymakers, and promote interbranch dialogue about the role of legal institutions in the high-stakes areas of foreign affairs and national security.
Frontmatter -- PREFACE -- CONTENTS -- CHAPTER I. Introduction -- CHAPTER II. Popular Control of Foreign Policy -- CHAPTER III. The Royal Prerogative -- CHAPTER IV. Sources of Information -- CHAPTER V. Parliamentary Debates THE -- CHAPTER VI. Debates 1962-63 -A Case Study -- CHAPTER VII. Political Pressures -- CHAPTER VIII. A Parliamentary Committee for Foreign Affairs? -- CHAPTER IX. The Influence of Parliament -- APPENDIX -- INDEX
Zugriffsoptionen:
Die folgenden Links führen aus den jeweiligen lokalen Bibliotheken zum Volltext:
Madison's argument, which attempts to state that the powers in foreign relations can be separated on principle, is in contrast to the arguments of Locke and Montesquieu that we have sketched as well as to the thrust of the Federalist. Our brief discussion of it does not do it justice, but is justified by the failure of the legislation under consideration to move in Madison's direction. The current legislation does not attempt to specify certain powers belonging to Congress as legislative in their nature, and others to the President as executive, but to limit discretion and share the remaining discretion among Congress and the President. It is thus more like the creation of an executive council. The views we have discussed raise three questions about this legislation. First, insofar as the legislation attempts to bring discretion under law, that is, to abolish some discretion, is it not an attempt to determine unilaterally what cannot be so determined? The occasion for the use of discretion in foreign affairs cannot be created by legislation, but depends on actions over which the President and Congress have a minimum degree of control. If circumstances arose that required the use of discretionary force but did not fit the congressional guidelines (and the legislation might even invite enemies to create such circumstances), the likely consequence would be a violation of law. The alternative would be a failure to act as the circumstances required. It can always be said that Congress could act through legislation or a declaration of war, but except in cases of great emergency, the very cases in which the legislation gives the President license to act, will it act with the dispatch that can seize the advantage of the moment? Secondly, to the extent that the legislation aims to include Congress in the exercise of discretion--not only, be it noted, in the commencement of hostilities but in its continuation and end--it attempts to create an executive council not only out of the Senate, as some proposed at the ...