The scope and nature of presidential power is a critical issue in our increasingly dynamic and contentious political and legal discourse. As presidential authority grows in practice, it inevitably interacts with areas of law and policy that have traditionally been the province of the other branches. Recently, in Zivotofsky v. Kerry, the Supreme Court resolved a novel issue of inter-branch relations when it determined that Article II of the Constitution endowed the president with ultimate control over the content of American passports because the Nation must “speak with one voice” with regard to the recognition of foreign governments vis-à-vis the United States.

This constitutional delineation of foreign policy responsibilities has important ramifications for how courts should resolve another constitutional principle—access to the courts. Presidential power to recognize foreign governments informs our understanding of when and how courts should decide that litigants must pursue their claims outside of the United States under the doctrine of forum non conveniens (FNC). More specifically, the president’s plenary power to recognize foreign governments inevitably makes him relevant to the issue of which foreign judicial systems constitute sufficiently adequate and available forums to protect litigants’ interests outside of the United States. Until now, however, the role of the executive in FNC cases has been completely overlooked. The Supreme Court neglected to provide substantive guidance in its leading FNC case, Piper Aircraft Co. v. Reyno, leaving the lower courts to fend for themselves in determining when a forum is both adequate and available. As a result, lower court decisions are deeply divided as to when and how to require litigants to pursue their case in a foreign forum.

This article tackles the constitutional problem of FNC cases by contending that the courts are not the branch of government best suited to make the adequate available forum determination. Rather, the executive, as demonstrated through a critical review of Supreme Court separation of powers cases, is uniquely positioned to opine on whether a foreign judiciary can provide such a forum. By deferring to the executive with respect to questions that involve such keys issues of foreign policy, litigants and the courts benefit from the executive’s greater expertise, experience, and accountability in questions of foreign affairs.