Judiciary Power and Practice
Terrence R. Guay
The words "foreign policy" and "foreign affairs" do not appear in the U.S. Constitution, and there is nothing in the document to suggest that the three branches of government should treat this policy area any differently than others. Yet with a few notable exceptions, the judiciary branch has played a limited role in foreign policy. The courts have preferred to refrain from influencing foreign policy, often regarding disputes between the executive and legislative branches in this area to be political, rather than legal, questions. Indeed, Article 3, Section 2 states that "judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." This judicial deference is controversial, particularly among those who feel that foreign policy has no special claim to be treated differently than other policy areas.
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