University of California Hastings College of the Law
UC Hastings Scholarship Repository (University of California, Hastings College of the Law)Not a member yet
18514 research outputs found
Sort by
Political Questions and the Role of Federal Courts in Deciding Claims that the Executive Branch is Violating Fundamental Norms of International Law: The Case of United States Aid for the Israeli War Against Palestinians in Gaza and the West Bank
No full textA recent challenge to the Biden Administration’s military aid to Israel as aiding genocide presents an important question of the role of U.S. courts in adjudicating claims that top U.S. officials, in their execution of U.S foreign policy, are violating fundamental international law norms, such as the prohibition against committing or aiding and abetting genocide. Both the District Court and the Court of Appeals for the Ninth Circuit dismissed the case as presenting a non-justiciable political question.
The Ninth Circuit’s decision raises the broad question of whether challenges to U.S. government violations of fundamental norms of international law can ever be justiciable in domestic courts. The court’s holding suggests that all cases challenging a broad U.S. policy of committing or aiding torture or genocide abroad will be dismissed as a political question. While the panel attempted to temper its holding by asserting that “although some cases involving alleged genocide will be justiciable,” the decision’s rationale contradicts this.
This essay will analyze Defense for Children International-Palestine v. Biden (“Defense for Children”) as a window into broader, theoretical questions of the legitimacy and viability of the political question doctrine as the courts have applied it to foreign affairs disputes. Further, this discussion of Defense for Children will fashion a proposed solution to the conundrum federal courts face when confronted with broad challenges to U.S. foreign policy as violative of the Constitution, congressional statutes, or international law
