Under Article II, Section 1 of the United States Constitution, the President has the “executive power” of the United States. Much has been written about what the Framers intended when drafting this language in the Constitution. Most recent, in Zivotofsky v. Kerry, the Supreme Court determined that the Nation must “speak with one voice” with regard to policy about the legitimacy of foreign governments vis-à-vis the United States.

This foreign policy constitutional principle has important ramifications for how courts should address forum non conveniens analyses with regard to the adequate available forum. The Supreme Court neglected to provide substantive guidance in Piper Aircraft Co. v. Reyno with respect to the adequate available forum, 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 dismiss a case to a foreign forum that is adequate and available.

This article posits that the courts are not the branch of government best suited to make this 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 an adequate available forum. By deferring to the executive with respect to questions that involve such keys issues of foreign policy, courts avoid political landmines that are best left to the executive.