armed conflicts
political question doctrine – Separation of powers
A “textually demonstrable constitutional commitment of the issue to a coordinate political branch.”
A “lack of judicially discoverable standards”, the “impossibility for a court independent resolution without expressing a lack of respect for a coordinate branch of the government”
The “impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court.”
An “unusual need for unquestioning adherence to a political decision.”
And/or
the “potentiality of embarrassment from multifarious pronouncements by various departments on one question
The political question doctrine is a multi-factor fact intensive balancing inquiry.
Questions: What constitutional rights, if any, do non-citizens have? Does the U.S. Constitution have any applicability outside U.S. territory? <
U.S. constitution follows the flag?
Fundamental rights
President has plenary powers in foreign policy
Congress has the power of the purse
Treaty power:
a treaty must be ratified by the U.S. Senate to have domestic direct affect (unmittelbare Anwendbarkeit)
*President‘s choice to enter into a treaty thereby binds the United States.
The People v. Gerke,
escheat of the real estate held by foreigners in California, when such foreigners died intestate
a convention between the United States and the Kingdom of Prussia
comity
vested right in rem
Chae Chang Ping v. United States. 130 U. S., 581. (1889) (Chinese Exclusion)
*The power of exclusion of foreigners being an incident of sovereignty
*license, therefore, Chinese laborers may have obtained, previous to the act of October 1, 1888, to return to the United States after their departure, is held at the will of the government, revocable at any time, at its pleasure.
*non-justiciable. political remedy, not legal.
*The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other disposition, not such as are personal and untransferable in their character.
Mormon Church v. United States. 136 U. S, 1. (1890) (compare: gay marriage)
* polygamy prohibited by the laws of the United States. FEDERAL POWER?
* implicit fundamental right versus express state power
* territorial legislation must be approved by federal government prior to admission of a state
* relevant for puerto rico, various other island territories.
* principle that fundamental rights apply outside of the territory of the several states into territories under the control of the federal government