« Randy Barnett on the Declaration of Independence
Michael Ramsey
| Main | Sai Prakash and John Yoo on Justices Gorsuch and Thomas
Michael Ramsey »

07/06/2017

D.C. Circuit Decision on Drones and the Political Question Doctrine
Michael Ramsey

In a recent decision, the D.C. Circuit rejected -- principally on political question grounds -- a challenge to the legality of U.S. drone strikes: Ahmed Salem Bin Ali Jaber v. United States (per Judge Janice Rogers Brown).  Here is the court's discussion of the political question analysis post-Zivotofsky:

Plaintiffs argue their reading of [the D.C. Circuit's prior decision in] El-Shifa gains support from the Supreme Court’s opinion in Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012), which held the political question did not bar judicial review of a claim attacking the constitutionality of a statute allegedly regulating the Executive. Again, Plaintiffs’ claim fails.

In Zivotofsky, the Court considered a statute directing the Secretary of State, upon request, to issue a registration of birth or passport to a U.S. citizen born in Jerusalem that identified the individual’s place of birth as “Jerusalem, Israel.” Id. at 193. The President’s signing statement asserted the statute, if it were construed as mandatory, would impermissibly interfere with the Executive’s foreign relations powers. Id. at 192. Consequently, the U.S. Embassy later refused Zivotofsky’s request to list his place of birth as Jerusalem, Israel and issued a passport and registration of birth listing only “Jerusalem.” Id. at 193. The Supreme Court noted “the parties [did] not dispute the interpretation” of the statute, and the question before the Court concerned whether the statute was constitutional. Id. at 196. Accordingly, the Court held the question justiciable, reasoning Zivotofsky did not “ask the courts to determine whether Jerusalem is the capital of Israel” but sought only to vindicate his statutory right to have Israel designated as his place of birth on his passport. Id. at 195.

Zivotofsky confirms no per se rule renders a claim nonjusticiable solely because it implicates foreign relations. Rather, it recognizes that, in foreign policy cases, courts must first ascertain if “[t]he federal courts are . . . being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination” or, instead, merely tasked with, for instance, the “familiar judicial exercise” of determining how a statute should be interpreted or whether it is constitutional. Id. at 196. In the latter case, the claim is justiciable. Id.; see also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. at 229–30 (stating not “every case or controversy which touches foreign relations lies beyond judicial cognizance[,]” and emphasizing “courts have the authority to construe treaties[,] . . . executive agreements, and . . . congressional legislation” and to address other “purely legal question[s] of statutory interpretation” in the foreign policy realm). Therefore, if the court is called upon to serve as “a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security[,]” then the political question doctrine is implicated, and the court cannot proceed. El–Shifa, 607 F.3d at 842.

Zivotofsky sought only to enforce a statute alleged to directly regulate the Executive, and the reviewing court needed to determine only “if Zivotofsky’s interpretation of the statute [was] correct, and whether the statute [was] constitutional.” Zivotofsky, 566 U.S. at 196. 2 The Court was not called upon to impose its own foreign policy judgment on the political branches, only to say whether the congressional statute encroached on the Executive’s constitutional authority. This is the wheelhouse of the Judiciary, and accordingly, it does not constitute a nonjusticiable political question. Here, however, Plaintiffs assert claims under the TVPA and ATS that would require the Court to second-guess the wisdom of the Executive’s decision to employ lethal force against a national security target—to determine, among other things, whether an “urgent military purpose or other emergency justified” a particular drone strike. JA 10. Indeed, Plaintiffs’ request is more analogous to an action challenging the Secretary of State’s independent refusal to recognize Israel as the rightful sovereign of the city of Jerusalem, a decision clearly committed to executive discretion.

This seems right to me, but it depends a bit on how the plaintiffs' framed their claim.  In my originalist view (admittedly perhaps not a widely shared view) plaintiffs would state a non-political claim if they contended that the strikes were unconstitutional because not approved by Congress.  (See Little v. Barreme).  As the D.C. circuit opinion rightly sums Zivotofsky, the analysis is whether the claim asks a pure question of constitutional (or statutory) law or whether it asks for an assessment of executive discretion.  The question of congressional approval seems to me to be the former (without saying how it should be answered on the merit).

Judge Brown added a concurrence to her own opinion, saying in part:

… Courts are ill equipped “to assess the nature of battlefield decisions” or “to define the standard for the government’s use of covert operations in conjunction with political turmoil in another country.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 45 (D.D.C. 2010).

Of course, this begs the question: if judges will not check this outsized power, then who will? No high-minded appeal to departmentalism, arguing “each [branch] must in the exercise of its functions be guided by the text of the Constitution according to [that branch’s] own interpretation of it,” E. BURNS, JAMES MADISON: PHILOSOPHER OF THE CONSTITUTION 187 (reprinted 1968), changes the fact that every other branch of government seems to be passing the buck. The President is the most equipped to police his own house. See generally AKHIL REED AMAR, AMERICAN’S CONSTITUTION: A BIOGRAPHY 60–63 (2005) (discussing the President’s independent obligation to ensure his actions comply with the Constitution). But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in 6 secrecy; and it often seems the boards are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress, perhaps? See generally Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 912 (1990) (“If Congress enacts a War Powers Act and the President goes his merry way in reliance on a more expansive view of executive power (and a stingy view of legislative power), Congress need not give up.”). But congressional oversight is a joke—and a bad one at that. Anyone who has watched the zeal with which politicians of one party go after the lawyers and advisors of the opposite party following a change of administration can understand why neither the military nor the intelligence agencies puts any trust in congressional oversight committees. They are too big. They complain bitterly that briefings are not sufficiently indepth to aid them in making good decisions, but when they receive detailed information, they all too often leak like a sieve.

Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community— including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.

(Via Jonathan Adler at Volokh Conspiracy).