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The application of the Political Question Doctrine is at a crucial crossroads as the Supreme Court continues to test new 'War on Terrorism' initiatives. Historically, the political question doctrine has held the courts from resolving constitutional issues that are better left to other departments of government, as a way of maintaining the system of checks and balances. However, the doctrine's many ambiguities have allowed a roughly defined juxtaposition of the branches of government during previous years when the Republic was concerned with both international matters and those within its continental confines. The Political Question Doctrine and the Supreme Court of the United States discusses the gradual changes in the parameters of the doctrine, including its current position dealing with increasingly extraterritorial concerns. Nada Mourtada-Sabbah and Bruce E. Cain bring together critical essays that examine the broad issues of judicial involvement in politics and the future of the doctrine. With a wide range of historical and theoretical perspectives, this book will stimulate debate among those interested in political science and legal studies.
The application of the Political Question Doctrine is at a crucial crossroads as the Supreme Court continues to test new "War on Terrorism" initiatives. Historically, the political question doctrine has held the courts from resolving constitutional issues that are better left to other departments of government, as a way of maintaining the system of checks and balances. However, the doctrine's many ambiguities have allowed a roughly defined juxtaposition of the branches of government during previous years when the Republic was concerned with both international matters and those within its continental confines. The Political Question Doctrine and the Supreme Court of the United States discusses the gradual changes in the parameters of the doctrine, including its current position dealing with increasingly extraterritorial concerns. Nada Mourtada-Sabbah and Bruce E. Cain bring together critical essays that examine the broad issues of judicial involvement in politics and the future of the doctrine. With a wide range of historical and theoretical perspectives, this book will stimulate debate among those interested in political science and legal studies.
For centuries, the Arabian Gulf has been a crossroads where
seafaring people and Bedouins alike traveled great distances
transacting business. Events of the past few years, both good and
bad, have directed the world's attention to the Arabian Peninsula,
where a rich cultural tradition is rapidly incorporating the latest
innovations from around the world. This is the process of
globalization.
For centuries, the Arabian Gulf has been a crossroads where
seafaring people and Bedouins alike traveled great distances
transacting business. Events of the past few years, both good and
bad, have directed the world's attention to the Arabian Peninsula,
where a rich cultural tradition is rapidly incorporating the latest
innovations from around the world. This is the process of
globalization.
It is widely held that foreign affairs, and more particularly issues of war and peace, lie beyond the scope of judicial scrutiny. In the recent case of Campbell v. Clinton, Judges Silberman and Tatel took diametrically opposite positions on the issue. A concurrence by Judge Silberman contended that war power disputes may not be decided by federal courts, while Judge Tatel insisted that the record demonstrates that federal courts have always felt comfortable and competent to adjudicate a number of war/ power issues. Resorting to one or more of the various threshold tests at their disposal, including the political question doctrine, federal courts may decline adjudication on sensitive and discretionary matters. To avoid placing their oar in murky waters, the courts, it is commonly believed, decline to pass on the validity of war/power issues, thus failing by the same token to perform their role as an independent check on the political branches. Moreover, when they do adjudicate such issues, they are said to usually uphold the actions of the executive branch. A closer scrutiny of case law, however, reveals the record to be more complex. It is by no means a foregone conclusion that courts lie back or shy away from war/power disputes. A number of private citizens and private corporations have taken war/power issues into the courts and had their disputes adjudicated, often decided against the President. Lawsuits brought by Members of Congress, are less likely to succeed. They reveal a fairly constant and consistent trend on the part of the judiciary: the courts will perform their traditional constitutional role as a n independent check if the political branches defend their own prerogatives. Lawsuits brought by individual members of Congress are likely to be adjudicated by the courts unless Congress, as an institution, ahs confronted the President. The focus of this book is on cases involving presidential and congressional use of military force in armed conflicts. Several cases dealing with private parties and insurance companies are included because life insurance policies may require courts to decide when the nation is 'at war', or when there is an 'act of war', and when the country is 'engaged' in war. The courts have addressed the issue of war in various contexts and a variety of issues, some more significant than others, for two centuries. This book summarises this ongoing judicial record.
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