That the Constitution contemplates some meaningful role for federal courts in foreign affairs is clear from the text of Article III, which confers jurisdiction over not only cases arising under the Constitution and federal statutes, but also “Cases arising under Treaties made” under the authority of the United States, “Cases affecting Ambassadors, other public Ministers and Consuls,” “Cases of admiralty and maritime Jurisdiction,” and party-based jurisdiction over controversies involving, among others, “foreign States, Citizens, or Subjects.”1 But the constitutional text stops well short of fully specifying the precise role that federal courts should play in the conduct of the nation’s foreign affairs or the precise relationship between the judiciary’s powers and those of the Legislative and Executive Departments. In this respect, the textual specification of the judiciary’s powers over foreign affairs, like those describing the powers of the President and Congress, conform to Professor Edward Corwin’s famous description of the Constitution as “an invitation to struggle for the privilege of directing American foreign policy.”
Ryan C. Williams