concurring:
While I do not concur in the majority’s opinion in this case, I concur in the result. I believe that the Supreme Court’s decisions in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) and Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), and our decision in Planned Parenthood Fed’n, Inc. v. AID, 838 F.2d 649 (2d Cir.1988) require the result the majority reaches as to justiciability. My analysis of factors set forth in United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990),1 also leads me to concur in the majority’s conclusion about the reach of the Establishment Clause in this case. However, I write separately to express my reservations about our Circuit’s application of the political question doctrine as well as my concerns about the weight the majority gives to certain factors under the Verdugo analysis.
If we had not decided Planned Parenthood, which now is binding precedent in this Circuit, I would hold this action barred by the political question doctrine. The majority concludes that under Planned Parenthood which outlined for justiciability purposes a distinction between “policy” and “implementation” of policy, this case fits into the latter category and is therefore justiciable. Although I agree that Planned Parenthood compels such a result, I believe that the seemingly facile distinction between “implementation” and “policy” arrived at in that case raises more questions than it answers. The critical importance of preserving the proper allocation of power among the three branches of government, see, e.g., Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962), the deference due to the political branches in conducting our foreign affairs, see, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319, 57 S.Ct. 216, 220-21, 81 L.Ed. 255 (1936), and a concern for the “possible consequences of judicial action,” Baker, 369 U.S. at 211-12, 82 S.Ct. at 706-07, lead me to believe that the course on which we embarked in Planned Parenthood was an unwise one.
In the first place, the distinction between policy and implementation that we drew in Planned Parenthood may be so manipulable as to render it meaningless. For example, the Fifth Circuit in Dickson v. Ford, 521 F.2d 234 (5th Cir.1975) (per curiam), cert. denied 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 360 (1976), found nonjusticiable an Establishment Clause challenge to the Emergency Security Assistance Act of 1973 and the Foreign Assistance Act of 1974, which authorized military and nonmilitary aid to Israel. The majority distinguishes Dickson by maintaining that that case involved a direct challenge to the foreign policy itself, “not, as here and in Planned Parenthood, a challenge to one possible method of policy implementation." It is arguable, however, that the “policy” in Dickson was really to solidify a United *844States presence in the Middle East, or perhaps to improve relations with Israel, and that the challenged grants of military aid were merely means of “implementing” that “policy.” In Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34 (2d Cir.1985) (per curiam), we held nonjusticia-ble an attack on the deployment of cruise missiles at Greenham Common in Great Britain. There, the underlying decision to deploy the missiles at Greenham Common was “part of a broader plan to modernize the nuclear forces of the North Atlantic Treaty Organization (“NATO”) and to provide a more adequate defense for Western Europe.” Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332, 1333 (S.D.N.Y.1984) (footnote omitted). Was the decision to deploy cruise missiles in Greenham Common “policy” or rather a means of implementing the broader policy of defending Western Europe? As these cases indicate, it appears that one person’s “implementation” can be another person’s “policy.” Indeed, if in the present ease the State Department through AID were to articulate a policy of funding foreign schools regardless of religious affiliation, perhaps out of respect for the traditions of the recipient countries, would not that policy determination under our reasoning in Planned Parenthood render this case nonjusticiable?
Furthermore, the application of the policy/implementation distinction to this case suggests to me that the formalistic rubric we have grafted onto the political question doctrine may frustrate one of its underlying goals: as we described it in Planned Parenthood, the need for courts to refrain from adjudicating “ ‘the political and social wisdom of ... foreign policy.’ ” Planned Parenthood, 838 F.2d at 656 (quoting DKT Memorial Fund, Ltd. v. AID, 810 F.2d 1236, 1238 (D.C.Cir.1987)). The majority implicitly recognizes that there may be circumstances where policy and implementation converge to the point of being identical; for example, in this case, there may be countries where there are no alternatives to pervasively sectarian schools. In such circumstances, if the government wishes to carry out its foreign policy goals, it will have only one means of implementation. The majority deals with this problem by providing that if such circumstances arise, the government may advance a compelling reason why it should be permitted to go forward. But it is not hard to see that such a scenario may require the district court to evaluate the government’s foreign policy goals, and to balance these goals against the Establishment Clause concerns at stake in particular grants. Surely this will immerse the courts in the very evaluation of foreign policy that transgresses the separation of powers built into the Constitution and that underlies the political question doctrine in the first place. Making a distinction at the outset of a case between policy and implementation does little to ward off such a result, because the convergence of policy and implementation may only become apparent well after a court has made the political question determination and proceeded to the merits.
Finally, executive or congressional decisions about “implementation” can themselves be laden with “policy” determinations. How do we know, for example, what foreign policy considerations underlay AID’S choice of a particular school in a particular country as a means of implementing the ASHA program? Nonetheless, these choices made by a political branch, which are often inextricably intertwined with policy concerns, appear to fall under the category of “implementation” according to Planned Parenthood, and are therefore justiciable. Although I thus feel compelled to concur in the majority’s result based upon our prior decision in Planned Parenthood, I am deeply concerned that we are incrementally intruding into matters of foreign affairs committed to the political branches where courts do not belong.
I am further troubled by the majority’s Verdugo analysis. While I agree with the conclusion that under the analytical framework set forth in Verdugo, the first amendment’s Establishment Clause may have extraterritorial effect, the majority seriously minimizes the foreign policy concerns that must be taken into account in this analysis. *845I nonetheless agree with the majority’s result, principally for two reasons: first, I believe that the text of the first amendment’s limitation on Congress' competency to act in regard to religion bears no construction that confines its operation to the United States; second, the history of the Establishment Clause,2 at least that history as presented in Supreme Court precedents such as Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), strongly suggests that the Clause protects against not only the kind of governmental encroachment that might lead to the establishment of a national religion, but also against the taxation of citizens in order to support religion. See id. at 16, 67 S.Ct. at 511 (“[n]o tax in any amount ... can be levied to support any religious activities or institutions”). This taxation, of course, is not extraterritorial; it occurs in the United States.
Justice Rehnquist makes a compelling argument in his dissent in Wallace v. Jaf-free that the Supreme Court, in Everson and subsequent cases, has been erroneous in its interpretation of the history of the Clause and its meaning as to taxation. See Wallace v. Jaffree, 472 U.S. 38, 104, 105 S.Ct. 2479, 2514, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting) (noting “the fallacy of the notion found in Everson that ‘no tax in any amount’ may be levied for religious activities in any form”) (citation omitted). However, this Court is bound by Everson and its progeny, and therefore the “tax factor” in Supreme Court precedent, when coupled with the text of the first amendment, leads me to concur with the majority on the Establishment Clause issue.
. Until we are told otherwise, I accept that Ver-dugo provides the most useful framework for examining the extraterritoriality of constitutional provisions, whether involving individual rights, as in that case, or limitations on Congressional power, as here.
. I do not join in the majority’s broad-scale attack on originalism in the context of this case. While a quest for original intent here need not be "slavish" and may present difficulties, a minimization of the role of history and original intent is unwarranted particularly when considering an Establishment Clause question. As Justice Rutledge explained in his noted dissent in Everson v. Board of Education: "No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” 330 U.S. 1, 33, 67 S.Ct. 504, 520 (Rutledge, J., dissenting).