Academic

Abolish the Act of State doctrine?

By University of Houston Law Center

Imagine what would happen if an American President were to persuade Congress to abolish the Act of State doctrine. Presumably, the President would follow this step by “tough negotiations” conducted with the Saudis, which would be convened either “with or without preconditions.” .

And then, when the Saudis politely declined to end their membership in OPEC, the President would say to the Royal Family, “Aw, gee, fellows, do you mean you’re not going to go along? And you’re going to pass your own laws that are different from ours? Fooey on you.”

Such a President might then turn to other projects with about the same likelihood of meaning, such as making water flow uphill, bringing out the sun so we can see at midnight, and maybe, repealing the law of gravity.

This comment is not intended to disagree with the statement that Congress has the theoretical power to repeal the Act of State doctrine—I think it could, but it won’t, because that would be too transparently futile, even for those who want a so-called windfall profits tax.  And I certainly don’t disagree with the statement that cartels are harmful, or at least they are almost always harmful. Unless we want to invade all the OPEC countries militarily, though, the United States can’t eradicate this evil in a practical way—it can’t use the methods that have been used with mixed success in cases involving expropriation, for example—and lawsuits about the subject are quixotic

Full post as published by University of Houston Law Center Faculty Blog on July 09, 2008 (boomark / email).