Continued Exceptionalism and the Need for a Foreign Affairs “Step Zero”

Zachary R. Lemonides*

In 2015, many believed that foreign affairs exceptionalism was on its way out, and that foreign affairs law was rapidly becoming normalized. This Note responds to the thesis that foreign affairs is becoming “normalized” and aims to achieve three goals. First, it revisits the descriptive argument for foreign affairs normalization in light of the Court’s recent cases and argues that foreign affairs exceptionalism remains a primary mode of resolving foreign affairs cases. Second, this Note synergizes apparent disarray in the court’s jurisprudence by distinguishing between deference and nonjusticiability to demonstrate that the purported shift towards normalization primarily involves the rejection of nonjusticiability, while retaining exceptional deference in foreign affairs cases.

Finally, this Note argues that as a consequence of the previous two observations it is necessary for advocates and judges to distinguish more directly between what is domestic and what is foreign. This is especially important now given the relevant prevalence of high stakes immigration cases. Immigration blends considerations of domestic law and foreign affairs law, and risks inviting serious jurisprudential confusion if more is not done to articulate when an immigration case triggers exceptionalism and when it does not. This Note presents a framework for how this line might be drawn and applies that framework to two recent cases to highlight its workability.

*J.D. Class of 2024, Columbia Law School. I thank Professor Gillian Metzger, Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School, for her guidance and incisive suggestions at all stages of the writing process. I also thank the staffers on the Columbia Journal of Transnational Law for their feedback and for all the hard work that went into publishing this piece. All errors are my own.