U.S. War Powers and the Potential Benefits of Comparativism

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a practical matter, through the political process. For those who believe that it is important to have legislative involvement in decisions to use force, the political process has not proven to be satisfactory: presidents have often used military force without obtaining congressional approval, and Congress generally has done little to resist such presidential unilateralism. The United States is not the only country to struggle with regulating the domestic authority to use military force. This issue of foreign relations law is common to constitutional democracies, and nations vary substantially in how they have addressed the issue. Whether and to what extent such comparative materials should inform the interpretation or revision of U.S. law presents a complicated set of questions that are affected in part by one’s legal methodology and also by how the comparative materials are being invoked. This Chapter begins by describing the exercise of war powers authority in the United States, both before and after World War II, as well as some of the limitations on congressional and judicial checks on presidential uses of military force. It then considers the potential value of studying the war powers law and practice of other countries, as well some of the reasons to be cautious about relying on such comparative materials

Foreign Officials and Sovereign Immunity in U.S. Courts

The Foreign Sovereign Immunities Act (FSIA) provides that foreign states shall be immune from the jurisdiction of U.S. courts unless the suit falls within a specified statutory exception to immunity. There is currently a conflict among the federal circuit courts over whether suits against individual foreign officials are covered by the FSIA. If such suits are not covered by the FSIA, additional questions are raised concerning a possible common law immunity for foreign officials. This Insight describes both the conflict and the additional questions

A State Preferences Account of Customary International Law Adjudication

The standard account today of customary international law (CIL) is that it arises from the widespread and consistent practice of states followed out of a sense of legal obligation. Although commonly recited, this account is plagued by evidentiary, normative, and conceptual difficulties, and it has been subjected to increasing criticism in recent years. This paper posits a different account of CIL, considered from the perspective of international adjudication. A fundamental problem with much of the theorizing about CIL, the paper contends, is that it fails to identify which decisionmaker it has in mind. Instead, the discussion proceeds as if CIL existed in the abstract without any particular human entity to interpret and apply it. The application of CIL by an international adjudicator is best understood, this chapter contends, as an effort to determine the preferences of the relevant community of states concerning the norms that should apply in the absence of a controlling treaty. Unlike the standard view of CIL, this state preferences account recognizes an element of judgment and creativity in determining the content of CIL, somewhat akin to the judicial development of Anglo-American common law. Understanding the adjudication of CIL in this way, the paper contends, avoids many of the difficulties surrounding the standard account of CIL

Unratified Treaties, Domestic Politics, and the U.S. Constitution

Under contemporary treaty practice, a nation\u27s signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the object and purpose of the treaty until such time as it makes clear its intent not to become a party to the treaty. Some commentators further claim that this object and purpose obligation means that a nation that has signed a treaty is prohibited either from violating the treaty altogether or from violating the treaty\u27s core or important provisions. Attaching legal obligations to the signing of a treaty, however, poses a constitutional issue for the United States because the U.S. Constitution divides the treaty power between the President and Senate, whereas only the President and his agents are involved in the signing of treaties. This constitutional issue has broad significance because, for a variety of political and other reasons, the United States often signs but fails to ratify treaties. The constitutional issue is not eliminated by the president\u27s authority to conclude sole executive agreements, since both constitutional structure and historical practice suggest that this authority is significantly narrower than the power of the President and Senate to jointly conclude treaties. The drafting history of Article 18, however, offers a partial solution to this difficulty, since it indicates that the object and purpose obligation was intended to prohibit only actions that would substantially undermine the parties\u27 ability to comply with or benefit from a treaty after ratification, an obligation that has little relevance to the treaties for which signing obligations would be most constitutionally problematic

Treaty Signature

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary ratification after signature, the signature is referred to as a \u27simple signature,\u27 whereas a signature that indicates consent to be bound is referred to as a \u27definitive signature\u27. Part I of the chapter considers why States often prefer simple signature subject to ratification in lieu of other methods of joining a treaty. Part II discusses the international legal consequences of a simple signature. Part III reviews the process by which a State can terminate its signatory obligations. The chapter concludes with a brief consideration of the strategic issues raised by the ability of States to decide not to ratify a treaty after signature

Clear Statement Rules and Executive War Powers

This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism. The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative claims about the potential role of a clear statement requirement in the context of executive war powers. The author concludes that what this analysis ultimately suggests is that deciding issues of executive war powers requires contextual and pragmatic judgment rather than resort to abstract classifications, whether they are liberal or conservative in character, something that Justice Jackson recognized in his justifiably famous \u27Youngstown\u27 concurrence

AGORA: Reflections on Zivotofsky v. Kerry : Historical Gloss, the Recognition Power, and Judicial Review

The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”1 Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry(Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.2 The focus of this essay is on the Court’s methodology rather than its conclusion. In particular, the focus is on the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. Reliance on such practice—also known as “historical gloss”—is common in constitutional interpretation relating to the separation of powers. For a variety of rea-sons, however, there are unlikely to be many instances in which historical practice will clearly establish an exclusive presidential power. In Zivotofsky II, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It is probably fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky II the principal direction of influence was the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system

Emergency Power and Two-Tiered Legality

Commentators have long debated how to think about the relationship between law and presidential power during emergencies. Three distinct positions have emerged in that debate. First is the strict approach: that the president is subject to the normal constitutional and statutory laws even during emergencies. Second is the accommodation approach: that constitutional and statutory law should be interpreted to allow for more expansive presidential power during time of emergency. Third is the extralegal approach: that exercises of emergency authority should be understood as operating outside the law, potentially with some sort of after-the-fact evaluation of whether the exercise was functionally or morally justified1. Each of these approaches has potential drawbacks. The strict approach’s denial that the interpretation of constitutional and statutory authority changes during times of emergency seems naïve and threatens to make the law either too restrictive or too disconnected from actual practice. The accommodation approach, by allowing governmental authority to expand during time of perceived emergency, may allow the government to opportunistically ratchet up its power and may create precedent that could distort the law during more normal times. The extralegal approach, by placing exercises of emergency authority outside the law, may leave these actions unregulated and undermine the rule of law, and it may be unrealistic if it depends on an acknowledgment by public officials of illegality. In his thoughtful essay, Richard Fallon has added to this debate by suggesting an approach that attempts to keep emergency power within the domain of law while reducing the danger that exercises of this power will corrupt the rest of the law.2Analogizing from “threshold deontology” in moral theory, Fallon suggests a distinction between the rules of constitutional and statutory interpretation that apply during normal times and those that apply during emergencies. Citing Justice Holmes’s observation that “[g]reat cases . . . make bad law,” 3 Fallon’s chief concern is the “problem of normalization: powers created for emergencies spill over their originally intended banks and become the norm.”4 His approach, he suggests, addresses this concern while retaining the rule of law. It also “fits our historical and contemporary practices for gauging the scope of executive authority.”5 At first glance, Fallon’s approach may seem to be a restatement of the accommodation approach. After all, his claim that “[w]hen consequence-based imperatives possess sufficient urgency, it is right to conclude, as a matter of law, that the president can do some things that would be flatly illegal or unconstitutional under the ordinarily applicable rules,” 6 is precisely the claim made by accommodationists. But Fallon’s position is potentially distinguishable in two respects. First, Fallon hypothesizes a two-tiered model that involves both normal law, akin to what is envisioned by the strict approach, as well as a category of emergency law, with the latter limited to “highly exigent cases.”7 Second, Fallon suggests that presidential actions that can be legally justified only in the emergency category “should be regarded as lesser legal evils that are regrettably in breach of,” and not wholly reconcilable with, “ordinary legal and constitutional ideals that emergency does not eradicate.”8 By having the emergency category conceptualized as narrow and as tainted, the hope is that it will be sufficiently cabined to avoid corrupting the rest of the law. Fallon’s analogy to threshold deontology is useful in highlighting some of the dilemmas that emergency power can pose for the law. Nevertheless, I have doubts about the need for, or usefulness of, two-tiered legality. As an initial matter, it is not clear that the idea of a regrettable lesser evil has broad relevance to real-world issues of statutory and constitutional law relating to presidential power. In addition, I question whether Fallon’s central concern—that the accommodation approach will lead to the creation of precedent that will corrupt the rest of the law—is borne out by practice. Nevertheless, I understand Fallon’s anxiety about the danger that the executive branch might extend its authority by tendentiously relying on past practices. This anxiety, I would suggest, relates to the general role of historical practice in informing presidential authority rather than anything specific to the emergency power context, and I therefore question whether a two-tiered legality approach would do much to address it