Authorizations for the Use of Force, International Law, and the Charming Betsy Canon

Although international. law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President\u27s war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress\u27s general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This Article identifies and defends a better approach: courts should presume that general authorizations for the use of force do not empower the President to violate international law. Such a presumption is consistent with long-standing tools of statutory interpretation reflected in the Charming Betsy canon, maximizes the presumed preferences of Congress, advances separation of powers values, and promotes normative values that favor the use of international law as an interpretive tool

International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the war and foreign affairs powers of the President. International law can itself function as a second-order interpretive norm, in many ways similar to other forms of congressional authorization or executive branch practice. But because it is mediated in unique ways-by other countries and within our own domestic political system-international law is an especially compelling way to resolve problems with judicial competence and changes over time. International law also makes a powerful contribution to an originalist understanding of the Commander in Chief Clause: the Constitution explicitly vested control over war-related questions of international law with Congress, not the President

Zivotofsky v. Kerry: A Foreign Relations Law Bonanza

This short paper on Zivotofsky v. Kerry gives an overview of the case and analyzes its significance for international law in constitutional interpretation and for the Supreme Court’s “normalization” of foreign relations law. In terms of the overall significance of the case, it is a bonanza of foreign relations issues and doctrine: the executive Vesting Clause, the President as the “sole organ” of the nation, the need for the nation to speak with “one voice,” Curtiss-Wright, Youngstown, diplomatic history and practice, the Republic of Texas, secrecy and dispatch, Citizen Genet, the Spanish-American war, international law in constitutional interpretation, formalism and functionalism, the list goes on and on! Although the actual impact of the case on the outcome of inter-branch disputes remains to be seen, the case will be cited and debated in so many areas of foreign relations law that it is destined to become a classic in the field. The case also provides strong support for the use of international law in constitutional interpretation. All of the Justices write or join opinions which rely on modern international law to define “recognition,” a category of conduct which now has great constitutional significance because the Court holds that the President’s power over it is exclusive. With the exception of Justice Thomas, the Justices rely on contemporary international law to define the scope of recognition without providing a methodological reason for doing so, and often without tracing or linking contemporary international law back to 18th international law. As for the normalization of foreign relations law – a trend recently identified and explored at length by Ganesh Sitaraman and myself – the case is a decidedly mixed bag. Contrary to the normalization trend, the case holds for the government and it also favorably cites some exceptionalist cases. On the other hand, the case is ultimately decided on quite narrow reasoning, the famous Curtiss-Wright dicta is roundly criticized, and much of the Court’s functional reasoning is narrowly tailored to the context of recognition

The Future of the Federal Common Law of Foreign Relations

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficul- ties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reli- ance upon presidential or congressional action, or by standard constitutional analysis. Two traditional areas of federal common law-immunity and the act of state doctrine-are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be gov- erned by federal common law, and because the traditional foundation for federal common law has eroded. Anthony Bellia Jr. and Bradford Clark have argued in The Law of Nations and the United States Constitution that the Constitution itself requires courts to apply customary interna- tional law in these two areas, but their argument fails to convince. A better approach is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy

Central Bank Immunity, Sanctions, and Sovereign Wealth Funds

Central bank assets held in foreign countries are entitled to immunity from execution under international law. Even as foreign sovereign immunity in general has become less absolute over time, the trend has been toward greater protection for foreign central bank assets. As countries expand their use of central banks, however, recent cases have limited immunity for certain kinds of sovereign wealth funds held by central banks. Sanctions on foreign central bank assets have also become more common, raising issues about the relation- ship between central bank immunity and the recognition of governments, the relationship between immunity and executive actions, and the denial of central bank immunity as a countermeasure. This symposium Article explores recent developments in central bank immunity focusing on sovereign wealth fund lit- igation in Sweden, U.S. sanctions on Afghan central bank assets, and the global response to sanctions imposed on Russian central banks following the invasion of Ukraine. Some of these actions and cases do not implicate foreign sovereign immunity. However, proposals to confiscate Russian central bank assets and U.S. litigation to turn Afghan central bank assets over to private plaintiffs, even if presented as countermeasures to secure reparations, would undermine signifi- cantly one of the increasingly rare areas of international economic law around which there is a global consensus: the immunity of foreign central banks from measures of execution

International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the war and foreign affairs powers of the President. International law can itself function as a second-order interpretive norm, in many ways similar to other forms of congressional authorization or executive branch practice. But because it is mediated in unique ways-by other countries and within our own domestic political system-international law is an especially compelling way to resolve problems with judicial competence and changes over time. International law also makes a powerful contribution to an originalist understanding of the Commander in Chief Clause: the Constitution explicitly vested control over war-related questions of international law with Congress, not the President

The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum Co.

Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be significant for the courts’ application of the presumption in future cases: a potential analogy between the ATS and the Sherman Act, the purpose of the ATS, and the appropriate deference to accord the executive branch in ATS litigation. Finally, it considers the significance of Kiobel to the development and enforcement of international law and argues that the uncertain course charted by the Court in ATS litigation is in many respects unexceptional

Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department

The immunity of foreign states from suit in U.S. courts is governed by a federal statute, the Foreign Soveriegn Immunities Act (FSIA). This statute does not apply to the immunity of individual foreign officials, however, as the Supreme Court recently held in Samantar v. Yousuf Instead, the Court reasoned, the immunity of foreign government officials is controlled by common law. But there is no extant body offederal or state common law governing foreign official immunity, and the Court did not clarify how this law should be developed going forward. The State Department claims that it holds constitutional power to make indvidual immunity determinations on a case-by- case basis that are binding on the courts, and that the immunity principles articulated by the government should be followed even in cases where it does not make a specific determination. I argue in this article that the executive branch lacks such lawmaking power. I examine the text and structure of the Constitution, functional and historical arguments, the Court\u27s case law, and implied congressional authorization, and I reject each of these as possible grounds for the power asserted by the executive branch. Instead, I assert that the development by courts of a federal common law of individual immunity (with no binding authority in the executive branch) fits comfortably within the existing jurisprudence on federal common law and is preferable on functional grounds. Federal common law should be constrained in some respects, however, by the content of the FSIA, by customary international law, and by the views of the executive branch on certain discrete issues

The Due Process and Other Constitutional Rights of Foreign States

The rights offoreign states under the US. Constitution are becoming more important as the actions offoreign states andforeign state-owned enterprises expand in scope and the legislative protections to which they are entitled contract. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation ofpowers nor by due process. As a matter ofpolicy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals but to deny categorically such protections to foreign states. Careful analysis shows that the conventional wisdom and lower court cases are wrong for reasons that change our basic understanding of both Article III and due process. Foreign states are protected by Article III\u27s extension of judicial power to foreign-state diversity cases, designed to protect foreign states from unfair proceedings and to prevent international conflict. The Article III judicial power over cases imposes procedural limitations on federal courts that we today associate with due process. In particular, Article III presupposes both personal jurisdiction and notice for all defendants, not just foreign states. Under the Fifth Amendment, foreign states are persons due the same constitutional process to which other defendants are entitled. Process only reaches defendants within the sovereign power, or jurisdiction, of the issuing court, clarifying the obscure relationship between due process and personal jurisdiction for all defendants