As you discovered in previous weeks, the primary role of the Supreme Court is to uphold the U.S. Constitution. The court does this by hearing cases in which the constitutionality of specific laws and policies must be determined. In this way, the court oversees actions of the executive and legislative branches. However, foreign policy is one area in which, historically, the Supreme Court has been reluctant to get involved. One reason for the Supreme Court’s reluctance is because foreign policy cases tend to be highly political. For instance, in Goldwater v. Carter, Congress challenged President Jimmy Carter on his nullification of a defense treaty with China. Senator Barry Goldwater filed the lawsuit, stating that the president’s decision required Senate approval. The Supreme Court dismissed the case citing that it was political because it involved a dispute between executive and legislative branches.

Nearly 40 years earlier, the Supreme Court heard the United States v. Curtiss-Wright Export case in which the defendant, the Curtiss-Wright Corporation, argued that Congress gave the president too much power over foreign affairs. Given that this case was less political in nature, the Supreme Court agreed to hear it and ruled against the Curtiss-Wright Corporation. In recent years, the Supreme Court has become involved in cases related to the war on terror, one of which (Hamdan v. Rumsfeld) you read about this week. In these and other landmark foreign policy cases, the Supreme Court focused on the powers of the executive and legislative branches. The degree to which the Supreme Court constrained or supported executive and legislative powers in their rulings ultimately affects future foreign policy.

To prepare for this Discussion:

Review the article, “The Supreme Court: Missing in Action.” Reflect on the decisions made by the Supreme Court related to the war on terror and the author’s opinions on the role of the court in this area of foreign policy. Also, consider the impact of inaction on the part of the Supreme Court.

Review the U.S. Supreme Court cases Goldwater v. Carter and United States v. Curtiss-Wright Export in the LexisNexis Academic database. Think about whether or not the final decisions in these cases constrained the federal government in regard to foreign policy.

Using the Internet, Walden University Library, and the Learning Resources this week, select and research a historical or contemporary example that illustrates the Supreme Court’s constraint or lack of constraint on the federal government in regard to a specific foreign policy.

Consider the implications of the Supreme Court’s constraint or lack of constraint on the foreign policy from your example.

With these thoughts in mind:

Provide an example of the Supreme Court’s role in the constraint or lack of constraint on the federal government related to a specific foreign policy. Then, explain the impact of the Supreme Court’s constraint or lack of constraint on the foreign policy. Be specific.

Support your response using the Learning Resources and other scholarly resources.

Articles

• Fandl, K. J. (2016). Adios embargo: The case for executive termination of the U.S. embargo on Cuba. Retrieved from http://ssrn.com/abstract=2789819.

• Cohen, H. G. (2006). Supremacy and diplomacy: The international law of the U.S. Supreme Court. Berkeley Journal of International Law, 24(1), 273–329. doi:10.15779/Z38M36V
• Fontana, D. (2008). The Supreme Court: Missing in action. Dissent (00123846), 55(2), 68–74. doi: 10.1353/dss.2008.0068.
• Lavinbuk, A. N. (2005). Rethinking early judicial involvement in foreign affairs: An empirical study of the Supreme Court's docket. The Yale Law Journal, 114(4), 855–903. Retrieved from http://www.yalelawjournal.org/note/rethinking-earl…

Cases

• Statute: War Powers Act of 1973, Pub. L. No. 93-148, 542 Stat. 555-559 (1973).
• Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
• United States v. Curtiss-Wright Export Corp. et al., 299 U.S. 304 (1936).
  
• Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

• Goldwater v. Carter, 444 U.S. 996 (1979).

Optional Resources

Articles

• Howard, G. G. (2001). Combat in Kosovo: Ignoring the war powers resolution. Houston Law Review, 38(1), 261. Retrieved from http://www.houstonlawreview.org/archive/downloads/38-1_pdf/HLR38P261.pdf

• Kmiec, D. W. (2003). The Supreme Court in times of hot and cold war: Learning from the sounds of silence for a war on terrorism. Journal of Supreme Court History, 28(3), 270–300. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1692880