Debating Sovereignty:
Globalization, International Law, and the United States Constitution
by John Yoo MAY 6, 2012
Globalization is
transforming American society. As never before, the U.S. economy depends on
international trade, the free flow of capital, and integration into the world
financial system. International events affect domestic markets and institutions
more than ever. Advances in communications, transportation, and the Internet
have brought great benefits to the United States. But the September 11, 2001 attacks also
revealed globalization’s dark side. Terrorism, refugee flows, pollution,
drug smuggling, and crime depend on the same channels of globalization as the
world economy.
These economic,
technological, and social changes have occurred because of the acceleration of
communication, transportation, and information systems across national borders.
Globalization has led to (1) the explosive growth in international trade; (2)
the swift creation of international markets in goods and services; (3) the easy
movement of capital and labor across national borders; (4) the rise of major
transnational networks, such as international drug cartels, international
crime-fighting regimes, and international terrorism; and (5) the global effects
of industrialization on the environment and global commons.
These profound changes
present challenges to the American constitutional order because they
give rise to international law and institutions that demand the
transfer of sovereignty in response.
To limit carbon emissions, proposed follow-ons to the Kyoto accords seek
to regulate energy use throughout the world. To allow for the smooth movement
of capital, nations must coordinate their regulatory controls on the financial
industry. These multilateral treaty
regimes seek to regulate private activity under the control of independent
sovereign nations. They ask states to delegate lawmaking, law enforcement, or
adjudication authority to bureaucracies, such as the United Nations, the
International Court of Justice, or the World Trade Organization, that operate
along undemocratic lines and remain unaccountable to any nation.
These efforts at
global governance create tension with American constitutional controls
on state power. Recent examples abound. To what extent do international
court judgments have force in American law, preempting valid judgments by
domestic courts? Can the President and the Senate make an international treaty
that binds the United States to either legalize or criminalize abortion, or are
issues of family law reserved to the states? Should international and foreign
laws be used to interpret the U.S. Constitution? May Congress and the President
delegate federal authority to international organizations to regulate domestic
conduct, for instance, over industrial production or carbon emissions? Must American courts enforce the decisions of
international courts banning the death penalty or freeing international
terrorists?
Many scholars of
international law argue that globalization’s demands justify abnormal powers
for the federal government. Treaties on
global warming or the environment, for example, should have a reach beyond the
Constitution’s normal limits on the powers of Congress. International institutions like the WTO or
the ICJ should enjoy the power to issue direct orders in the U.S. legal system,
overcoming contrary policies at the state or even federal levels. States should have no voice in responding to
globalization. Courts, as the least
democratic branch, should play a primary role in incorporating global
governance at home without the intervention of the elected branches of
government.
These efforts aim at
nothing less than the erosion of American national sovereignty.
Anne-Marie Slaughter, a former Princeton dean and Obama State Department
Official, argues that networks of foreign and international officials and
institutions will develop independent, common legal standards that will be
imposed on nations. According to her,
“where the defining features of the international system are connection rather
than separation, interaction rather than isolation, and institutions rather
than free space, sovereignty as autonomy makes no sense.” Or, as Harvard
scholars Abram and Antonia Chayes have written a “new sovereignty” has emerged
where the international order is governed not by independent nation-states but
by a “tightly woven fabric of international agreements, organizations, and
institutions that shape their relations with one another and penetrate deeply
into their internal economics and politics.”
These responses to
globalization pose the most direct challenges to the fundamental principle
underlying the system of government in the United States: popular sovereignty. Unlike
other nations, which locate ultimate power in a nation, in a monarch, or in a
government, the U.S. Constitution locates sovereignty in the People of the
United States. The various institutions of the U.S.
government are merely agents of the People, whose powers are delegated
exclusively through the U.S. Constitution. The American people hardwired two
principles into the U.S. Constitution’s structure: the separation of powers and
federalism.
Popular sovereignty
reflects a basic American commitment to govern by exclusively constitutional
mechanisms, such as federalism and separation of powers, both of which
create the political institutions through which the people can exercise
power. These constitutional structures
may prove burdensome or inefficient, but they enhance accountability and
transparency in government—important features of constitutional democracy.
Globalization poses real challenges to American constitutional law, but the
answer is not, as some would have it, abandoning the core principle of the
American political system. Popular
sovereignty is to be ignored at one’s peril.
Grasping the
Constitution’s application to the issues raised by globalization depends more
on the basic structures of government set out in the Constitution’s text, the
traditions of American political practice, and even judicial precedents. The
Framers’ most important decision was to maintain a distinctive structure for
the exercise of governmental power at home: lawmaking through congressional
bicameralism followed by presentment to the President. At the same time, the
Framers believed that foreign affairs demanded a more flexible process that
relied more on presidential leadership, given its functional advantages in
acting with speed, decision, and dispatch. We believe that the best way to
approach globalization is to tame it by subjecting its domestic effects to the
same separation-of-powers and federalism rules that apply to any other law. But
for conduct and events abroad, we believe that the Constitution largely frees
the government from the straitjacket of the domestic rules of the game, and
directs authority to the branch most functionally suited to such quick and
momentous decisions: the executive.
Three constitutional
doctrines can avoid
globalization’s problems while still permitting the United States to accrue
the benefits of international cooperation. First, treaties should be
presumed to be non-self-executing: in other words, treaties do not take effect
as enforceable domestic law without an intervening Act of Congress. Second, the President must possess the
primary authority power to terminate international obligations and to interpret
international law. Third, states
must assume a leading role in the implementation of international law and
agreements, especially in areas (such as family and property law) that have
remained traditionally in their control. All of these mechanisms shift basic
decisions between the pressures of globalization and the goals of a democratic
constitutional government to the executive and legislative branches of the
federal and state governments.
These doctrines rest
on both “functional” and “formal” grounds. Such solutions are supported not
only by the text and history of the Constitution and Supreme Court precedent,
but also by their functional consequences. While all three doctrines have
strong historical and precedential foundations in the U.S. constitutional
tradition, one can reasonably disagree about them. Rather than try to establish these doctrines
as constitutional requirements, these doctrines should be adopted because they
are prudent. To require the political branches of government to fulfill the mandates
of international law simply makes sense as a matter of consequences. They prevent international treaties and
organizations from creating a loophole in the American constitutional system
that would grow only bigger as globalization advances apace.
From a normative
perspective, the legislative and executive branches of the federal and state
governments are the institutions best positioned to reconcile the pressures of
globalization with the U.S. legal system. These institutions are able to
release the pressures of globalization on the American constitutional system
because they enjoy the greatest political accountability and functional
expertise in the conduct of international relations (in the case of the
executive branch) or local public policy (in the case of the state
governments). Conversely, we do not
think that the American judiciary should play the kind of autonomous role that
many legal academics and policy analysts wish for. Although we believe courts
should maintain an independent place, we also believe courts should maintain their
traditional deference to the executive and the legislative branches in affairs
of state, in political questions, in foreign relations, and in war.
While relatively
young, the new forms and orders of global governance should sound a familiar
note to students of the American administrative state. Just as innovative
international regimes seek more pervasive regulation of garden-variety conduct,
so too did the New Deal seek national control over private economic decisions
that had once rested within the control of the states. The Kyoto accords had
their counterpart in the federal government’s efforts to control the production
of every bushel of wheat on every American farm in Wickard v. Filburn. The new
international courts and entities have their counterparts in the New Deal’s
commissions and independent bodies, created to remove politics from
administration in favor of technical expertise. These international bodies, to
remain neutral, must have officials who are free from the control of any
individual nation. Similarly, the New Deal witnessed the creation of a slew of
alphabet agencies whose officials could not be removed by the President. The
New Deal’s stretching of constitutional doctrine sparked a confrontation
between FDR and the Supreme Court, which kept to a narrower and less flexible
vision of federal power and the role of administrative agencies during FDR’s
first term. Similarly, in the absence of a theory that allows for an
accommodation of international policy demands with the U.S. constitutional
system, these new forms of international cooperation may well produce an
analogous collision with constitutional law.
Like nationalization,
globalization will inevitably call on us to reconsider the same fundamental
questions: the proper scope of the federal government’s regulatory power; the
balance of authority between the President and Congress; and the appropriate
role of the courts. We may only belatedly realize the consequences of economic
and social transformation on constitutional doctrine. The inability of
international organizations to provide legitimacy commensurate with the scope
of their delegated authority—when combined with the serious strains that their
delegations place on the federal government’s own legitimacy—weigh strongly in
favor of enforcing the Constitution’s formal processes for exercising public
power. A formalist approach would confer the greatest possible level of
political and popular acceptance because any consent to international law and
institutions would then occur with the full extent of the Constitution’s
legitimating force. Such an approach might require rejecting some delegations,
but it would at least ensure the full measure of domestic political legitimacy
to support those that survive.
Any fundamental change
in the Constitution’s structures to accommodate globalization would be a
terrible mistake. Putting aside their historical pedigrees, we think that
federalism and the separation of powers today guarantee a number of normative
benefits for the United States. Federalism, for example, creates policy
competition among states; citizens can maximize their preferences by choosing
to live in states with policies that they prefer. Federalism encourages
innovation in government policy—states serve as fifty “laboratories of democracy”
which conduct experiments at solving social problems—that will lead to more
effective national solutions. Federalism allows for the more effective
provision of public goods—or certain benefits, such as schools, roads, regional
transportation systems, parks, and law enforcement—that affect smaller
geographic units rather than the nation as a whole. Federalism has significant
advantages above and beyond its historical presence in the Constitution.
The separation of
powers also provides significant benefits beyond the happy accident of its
inclusion in the Constitution. Dividing legislative power between two houses of
Congress and the President demands that a high level of consensus exist before
the government exercises its powers. As the level of consensus increases, the
law is more likely to express the will of the majority and to represent the
better judgment on the right trade-offs for society. Multiple hurdles for the
legislative process reduce the chances that special interest groups will use domestic
regulation to capture benefits for themselves at the public’s expense. The
separation of powers encourages the vigorous exercise of national powers at the
right moment. The President can lead the nation into war, protect the national
security, or conduct foreign affairs with “decision, activity, secrecy, and
dispatch,” in the words of Alexander Hamilton in Federalist No. 70. By openly
allocating power to the branch best suited for its exercise, the separation of
powers encourages accountability to the electorate. The separation of powers
provides a safeguard for liberty by making it difficult for any one party or
group to take over the controls of government altogether, and by giving each of
the branches the means to frustrate the plans of the others.
America’s
decentralized government, both between the national and state governments and
between the executive, legislative, and judicial branches, discourages a rush
into radical reforms or sweeping alterations of the basic rules of the
political system. The American Constitution may allow grievous injustices—such
as slavery and segregation—to persist for long periods of time, but it also
creates a risk-averse political system that prevents the United States from
swinging wildly in one direction or another. Altering federalism and the
separation of powers to allow for greater international cooperation may seem
desirable now, but the long-term benefits may not exceed the costs, if those
costs are likely to weaken the Constitution’s governing principles in domestic
affairs. The American system can accommodate the demands of globalization
within existing doctrines of the separation of powers and federalism, but with
some difficulty. That is worth the price to preserve the constitutional
principles that have served the nation so well, for so long.
