Goldwater v. Carter
444
http://laws.findlaw.com/US/444/996.html
Vote: 6 (Burger, Marshall, Powell, Rehnquist,
Stevens, Stewart)
3 (Blackmun, Brennan, White)
Concurring opinions: Powell, Rehnquist
Dissenting opinions: Blackmun, Brennan
The Supreme Court has generally been
sympathetic to the executive branch when deciding disputes over the president’s
foreign policy role. For example, the justices have been quite lenient in the
handling of the president’s power to make treaties. In Goldwater v. Carter
(1979) Sen. Barry Goldwater, R-Ariz., challenged President Jimmy Carter’s
authority to terminate a defense treaty with
order
Certiorari granted, judgment
vacated, and case remanded with directions to dismiss the complaint. mr. justice marshall concurs in the
result. mr. justice powell
concurs in the judgment and filed a statement. mr. justice rehnquist concurs in the judgment and filed a
statement in which the chief justice, mr.
justice stewart, and mr. justice
stevens join. mr. justice white
and mr. justice blackmun join in
the grant of the petition for writ of certiorari but would set the case for
argument and give it plenary consideration. mr.
justice blackmun filed a statement in which mr. justice white joins. mr.
justice brennan would grant the petition for writ of certiorari and
affirm the judgment of the Court of Appeals and filed a statement.
mr. justice
powell, concurring.
Although I agree with the result
reached by the Court, I would dismiss the complaint as not ripe for judicial
review.
This Court has recognized that an
issue should not be decided if it is not ripe for judicial review. Prudential
considerations persuade me that a dispute between Congress and the President is
not ready for judicial review unless and until each branch has taken action
asserting its constitutional authority. Differences between the President and
the Congress are commonplace under our system. The differences should, and
almost invariably do, turn on political rather than legal considerations. The
Judicial Branch should not decide issues affecting the allocation of power
between the President and Congress until the political branches reach a
constitutional impasse. Otherwise, we would encourage small groups or even
individual Members of Congress to seek judicial resolution of issues before the
normal political process has the opportunity to resolve the conflict....
In this case, a few Members of
Congress claim that the President’s action in terminating the treaty with
mr. justice
rehnquist suggests,
however, that the issue presented by this case is a nonjusticiable political
question which can never be considered by this Court. I cannot agree. In my
view, reliance upon the political-question doctrine is inconsistent with our
precedents. As set forth in the seminal case of Baker v. Carr (1962),
the doctrine incorporates three inquiries: (i) Does the issue involve resolution
of questions committed by the text of the Constitution to a coordinate branch
of Government? (ii) Would resolution of the question demand that a court move
beyond areas of judicial expertise? (iii) Do prudential considerations counsel
against judicial intervention? In my opinion the answer to each of these
inquiries would require us to decide this case if it were ready for review.
First, the existence of “a textually
demonstrable constitutional commitment of the issue to a coordinate political
department,” turns on an examination of the constitutional provisions governing
the exercise of the power in question. No constitutional provision explicitly
confers upon the President the power to terminate treaties. Further,
Art. II, § 2, of the Constitution authorizes the President to make
treaties with the advice and consent of the Senate. Article VI provides that
treaties shall be a part of the supreme law of the land. These provisions add
support to the view that the text of the Constitution does not unquestionably
commit the power to terminate treaties to the President alone.
Second, there is no “lack of
judicially discoverable and manageable standards for resolving” this case; nor
is a decision impossible “without an initial policy determination of a kind
clearly for nonjudicial discretion.” We are asked to decide whether the
President may terminate a treaty under the Constitution without congressional
approval. Resolution of the question may not be easy, but it only requires us
to apply normal principles of interpretation to the constitutional provisions
at issue. The present case involves neither review of the President’s
activities as Commander in Chief nor impermissible interference in the field of
foreign affairs. Such a case would arise if we were asked to decide, for
example, whether a treaty required the President to order troops into a foreign
country. But “it is error to suppose that every case or controversy which
touches foreign relations lies beyond judicial cognizance.” This case “touches”
foreign relations, but the question presented to us concerns only the
constitutional division of power between Congress and the President.
A simple hypothetical demonstrates
the confusion that I find inherent in mr.
justice rehnquist’s opinion
concurring in the judgment. Assume that the President signed a mutual defense
treaty with a foreign country and announced that it would go into effect
despite its rejection by the Senate. Under mr.
justice rehnquist’s analysis that situation would present a political question
even though Art. II, § 2, clearly would resolve the dispute. Although the
answer to the hypothetical case seems self-evident because it demands textual
rather than interstitial analysis, the nature of the legal issue presented is
no different from the issue presented in the case before us. In both cases, the
Court would interpret the Constitution to decide whether congressional approval
is necessary to give a Presidential decision on the validity of a treaty the
force of law. Such an inquiry demands no special competence or information
beyond the reach of the Judiciary.
Finally, the political-question
doctrine rests in part on prudential concerns calling for mutual respect among
the three branches of Government. Thus, the Judicial Branch should avoid “the
potentiality of embarrassment [that would result] from multifarious
pronouncements by various departments on one question.” Similarly, the doctrine
restrains judicial action where there is an “unusual need for unquestioning
adherence to a political decision already made.”
If this case were ripe for judicial
review, none of these prudential considerations would be present.
Interpretation of the Constitution does not imply lack of respect for a
coordinate branch. If the President and the Congress had reached irreconcilable
positions, final disposition of the question presented by this case would
eliminate, rather than create, multiple constitutional interpretations. The
specter of the Federal Government brought to a halt because of the mutual
intransigence of the President and the Congress would require this Court to
provide a resolution pursuant to our duty “‘to say what the law is.’”
In my view, the suggestion that this
case presents a political question is incompatible with this Court’s
willingness on previous occasions to decide whether one branch of our
Government has impinged upon the power of another. Under the criteria
enunciated in Baker v. Carr, we have the responsibility to decide
whether both the Executive and Legislative Branches have constitutional roles
to play in termination of a treaty. If the Congress, by appropriate formal
action, had challenged the President’s authority to terminate the treaty with
mr. justice rehnquist, with whom the chief justice, mr. justice stewart, and mr. justice stevens join, concurring in the judgment.
I am of the view that the basic
question presented by the petitioners in this case is “political” and therefore
nonjusticiable because it involves the authority of the President in the
conduct of our country’s foreign relations and the extent to which the Senate
or the Congress is authorized to negate the action of the President. In Coleman
v. Miller (1939), a case in which members of the Kansas Legislature brought
an action attacking a vote of the State Senate in favor of the ratification of
the Child Labor Amendment, Mr. Chief Justice Hughes wrote in what is referred
to as the “Opinion of the Court”:
“We think that ... the question of
the efficacy of ratifications by state legislatures, in the light of previous
rejection or attempted withdrawal, should be regarded as a political question
pertaining to the political departments, with the ultimate authority in the
Congress in the exercise of its control over the promulgation of the adoption
of the Amendment.
“The precise question as now raised
is whether, when the legislature of the State, as we have found, has actually
ratified the proposed amendment, the Court should restrain the state officers
from certifying the ratification to the Secretary of State, because of an
earlier rejection, and thus prevent the question from coming before the
political departments. We find no basis in either Constitution or statute for
such judicial action. Article V, speaking solely of ratification, contains no
provision as to rejection....”
Thus, Mr. Chief Justice Hughes’
opinion concluded that “Congress in controlling the promulgation of the
adoption of a constitutional amendment has the final determination of the
question whether by lapse of time its proposal of the amendment had lost its
vitality prior to the required ratifications.”
I believe it follows a fortiori from Coleman
that the controversy in the instant case is a nonjusticiable political dispute
that should be left for resolution by the Executive and Legislative Branches of
the Gouvernment. Here, while the Constitution is express as to the manner in
which the Senate shall participate in the ratification of a treaty, it is
silent as to that body’s participation in the abrogation of a treaty. In this
respect the case is directly analogous to Coleman....
I think that the justification for
concluding that the question here is political in nature are even more
compelling than in Coleman because it involves foreign
relations--specifically a treaty commitment to use military force in the
defense of a foreign government if attached. In United States v.
Curtiss-Wright Corp., (1936), this Court said:
“Whether, if the Joint Resolution had
related solely to internal affairs it would be open to the challenge that it
constituted an unlawful delegation of legislative power to the Executive, we
find it unnecessary to determine. The whole aim of the resolution is to affect
a situation entirely external to the
Having decided that the question
presented in this action is nonjusticiable, I believe that the appropriate
disposition is for this Court to vacate the decision of the Court of Appeals
and remand with instructions for the District Court to dismiss the complaint.
This procedure derives support from our practice in disposing of moot actions
in federal courts. For more than 30 years, we have instructed lower courts to
vacate any decision on the merits of an action that has become moot prior to a
resolution of the case in this Court. The Court has required such decisions to
be vacated in order to “prevent a judgment, unreviewable because of mootness,
from spawning any legal consequences.” It is even more imperative that this
Court invoke this procedure to ensure that resolution of a “political
question,” which should not have been decided by a lower court, does not “spawn
any legal consequences.”...
mr. justice blackmun, with whom mr. justice white joins, dissenting
in part.
In my view, the time factor and its
importance are illusory; if the President does not have the power to terminate
the treaty (a substantial issue that we should address only after briefing and
oral argument), the notice of intention to terminate
surely has no legal effect. It is also indefensible, without further study, to
pass on the issue of justiciability or on the issues of standing or ripeness.
While I therefore join in the grant of the petition for certiorari, I would set
the case for oral argument and give it the plenary consideration it so
obviously deserves.
mr. justice
brennan, dissenting.
I respectfully dissent from the order
directing the District Court to dismiss this case, and would affirm the
judgment of the Court of Appeals insofar as it rests upon the President’s
well-established authority to recognize, and withdraw recognition from, foreign
governments.
In stating that this case presents a
nonjusticiable “political question,” mr.
justice rehnquist, in my view, profoundly misapprehends the
political-question principle as it applies to matters of foreign relations.
Properly understood, the political-question doctrine restrains courts from
reviewing an exercise of foreign policy judgment by the coordinate political
branch to which authority to make that judgment has been “constitutional[ly] commit[ted].” Baker v. Carr,
(1962). But the doctrine does not pertain when a court is faced with the
antecedent question whether a particular branch has been constitutionally
designated as the repository of political decision making power. The issue of
decision making authority must be resolved as a matter of constitutional law,
not political discretion; accordingly, it falls within the competence of the
courts.
The constitutional question raised
here is prudently answered in narrow terms. Abrogation of the defense treaty
with