Deference or Deception: Treaty Rights as Political Questions

Abstract

The political question doctrine remains one of the most obscure and troublesome features of current constitutional litigation. But even less understood are the systematic means by which judges defer to the substantive preferences and outcomes proposed by the political branches, particularly the Executive. This is nowhere better illustrated in the foreign relations area, and even more particularly, in the litigation of individual rights claimed under international agreements or treaties. By closely examining the large number of treaty rights cases, the article concludes that judges are much more likely to create rules or presumptions of substantive deference to Executive branch positions than they are to simply abstain from adjudicating the controversies.