Don’t Prosecute Trump. Impeach Him. By John Yoo and Saikrishna Prakash

https://www.nytimes.com/2017/12/04/opinion/trump-impeach-constitution.html?emc=edit_th_20171205&nl=todaysheadlines&nlid=59914923

Don’t Prosecute Trump. Impeach Him. By John Yoo and Saikrishna Prakash

Dec. 4, 2017

A wayward tweet on Saturday has set off renewed accusations that President Trump obstructed justice by impeding the investigation into Russian meddling in the 2016 elections.

The known facts are too weak to support any federal prosecution, not to mention one as momentous as indicting a sitting president. But even if Mr. Trump did illegally conspire to improve relations with Russia, his critics are pursuing their quarry down the wrong path. Impeachment — not criminal prosecution — is the tool for a corrupt sitting president.

The tweet in question contained a seemingly explosive claim that sent critics of Mr. Trump into a frenzy: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!” If the president knew that Mr. Flynn had lied to Mike Pence and to the F.B.I. about his conversations with the Russian ambassador, then the president had knowingly obstructed justice when he asked the F.B.I. director James Comey on Feb. 14 to let “Flynn go” because he was a “good guy.” According to the president’s critics, Mr. Trump then escalated his obstruction by firing Mr. Comey because of the Russia inquiry.

No responsible federal prosecutor would dream of stepping into a trial court with such a weak case. This is a tweet, hardly an admission of guilt. And on Sunday, Mr. Trump’s personal attorney, John Dowd, made the case even weaker when he said that he had ghost-written the tweet.

Mr. Trump’s comments to Mr. Comey (if true — the only source for them is a memo by Mr. Comey) do not qualify as corruption, a threat or coercion as required by federal obstruction law. A mother might make the same plea for her son, or a priest for a parishioner. Asking for leniency does not constitute obstruction, regardless of whether the crime being investigated is a violation of the Logan Act, which forbids private individuals from negotiating with foreign governments, or the False Statements Act. Mr. Trump most likely fired Mr. Comey not to thwart the investigation — Mr. Trump could have just ordered it ended, which he still has not done — but because Mr. Comey refused to affirm publicly that the president was not a target.

But even if the facts rose to the level of obstruction, most legal scholars agree that prosecutors cannot bring charges against a sitting president. The Constitution imposes on the president the duty to “take care that the laws be faithfully executed,” which vests the authority to oversee all federal law enforcement. As Alexander Hamilton observed in Federalist 70, “good government” requires “energy in the executive,” and a vigorous president is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” Ever since the framing, presidents have enjoyed the right to drop prosecutions as a waste of resources. Indeed, this is the very theory that President Barack Obama raised when he unilaterally reduced the enforcement of the immigration laws under the Dreamers and Deferred Action for Parents of Americans programs.

Because of the original constitutional design, President Trump ultimately can order the end of any investigation, even one into his own White House. He even has the power to pardon its targets, including himself. Mr. Trump can decide tomorrow that pursuing Mr. Flynn and others for lying to the F.B.I. agents is a waste of time and money. Though he claimed that he fired Mr. Comey for not doing “a good job,” the president can fire any cabinet and high-ranking Justice Department official for any reason or no reason.

Unfortunately, the drama over the Flynn plea and White House tweeting continues to draw time and resources away from the Constitution’s one true answer for presidential corruption: impeachment and removal from office.

If Mr. Trump has truly impeded a valid investigation, Congress should turn to impeachment, which allows for the removal of a president for “high crimes and misdemeanors.” Impeachment does not require the president to commit a crime, but instead, as Hamilton explained in Federalist 65, encompasses significant misdeeds, offenses that proceed from “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, he said, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

The House and Senate can make their own judgments — political as well as legal — about whether the Trump team’s involvement with the Russians or Mr. Trump’s comments to Mr. Comey fit this constitutional standard. Congress can begin this course of action by forming a special committee to investigate the Russia controversy and the Trump-Comey-Flynn affair, which could also find any predicate facts for a case of impeachment. If Congress believes that these events do not merit obstruction of justice or illegal conspiracy, it should go on the record with its judgment, too — a result Mr. Trump would welcome.

Congress should not wait on a special counsel to perform its most fundamental constitutional duty of investigating and, if necessary, removing a corrupt president.

Lots of Media Coverage of Amanda Knox, But Almost No One has Bothered Reading the U.S. Italy Extradition Treaty

Lots of Media Coverage of Amanda Knox, But Almost No One has Bothered Reading the U.S. Italy Extradition Treaty

by Julian Ku    March 29, 2013

http://opiniojuris.org/2013/03/29/lots-of-media-coverage-of-amanda-knox-but-almost-no-one-has-bothered-reading-the-u-s-italy-extradition-treaty/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29

A depressing large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.

I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.

The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty.  Article VI reads:

Extradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested

(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”).  The U.S. has never charged Knox with anything, much less with the murder of her UK roommate.  So Article VI does not bar Knox’ extradition to Italy. Period.

What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).  The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment.  That is basically what happened here.  Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.

So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see.  Now, if only someone would tell Alan Dershowitz.

Bolstering American Sovereignty with Treaties - Roger Alford

Bolstering American Sovereignty with Treaties

http://libertylawsite.org/liberty-forum/bolstering-american-sovereignty-with-treaties/

by Roger Alford     MAY 6, 2012 

In response to: Debating Sovereignty: Globalization, International Law, and the United States Constitution

Concerns about sovereignty in an age of globalization are common, and often take a defensive posture that seeks to limit the reach of international law.   But sovereignty and international law are not incompatible.  Broadly understood, sovereignty may be defined as the advancement of the national interest, and the reality of globalization requires the United States to make decisions that further the national interest through international engagement.

In some cases global engagement finds expression by persuading other nations to take the path we have already chosen.  One such example is the effort to combat bribery of foreign officials, which began as an American experiment with the Foreign Corrupt Practices Act, but now has garnered widespread adherence among the capital-exporting nations of the world with the OECD Anti-Bribery Convention.  Another example is the expansive interpretations of prescriptive jurisdiction to combat terrorism, international drug-trafficking and other international crimes, with American legal norms quickly spreading to other countries.  Successfully exporting our ideas abroad poses few risks to national sovereignty.

In other cases global engagement finds expression through cooperative efforts between executive branch officials and their counterparts in other countries.  The Basel Committee on Banking Supervision coordinates banking and monetary policy worldwide through an informal network of information exchange.  Antitrust authorities in the United States have signed antitrust cooperation agreements with other key countries to promote cooperation and convergence in international antitrust enforcement.  Administrative agencies in the United States routinely coordinate with the administrative agencies in other countries, and this poses few problems for national sovereignty.

These are easy cases.  Such soft commitments do not impose binding obligations on the United States, but simply afford opportunities for effective coordination with friends and allies.  Globalization presumes regulatory coordination across borders, and the United States advances its national interests by engaging in such conduct.

Sovereignty concerns more commonly arise when the United States is subject to binding international commitments that require us to comply with judicial, executive or legislative decisions rendered by unaccountable, unelected international bureaucrats.  These forms of international commitments are invariably established by treaty, and therefore treaties will be the focus of my discussion.

While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty.  Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.

Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results.  Like contracts, the first principle of treaties is party autonomy.

Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty.  The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms.  The same could be said of dozens of other treaties.

Sovereignty also is protected through treaty formation norms that limit the universe of political actors authorized to enter into treaties.  Only sovereign nations and international organizations are authorized to enter into treaties.  This reinforces our own constitutional commitment to federalism as reflected in the Compact Clause, which prohibits U.S. states from entering into international treaties with foreign powers in the absence of congressional consent.  International law and constitutional law both encourage the United States to speak in international affairs with one voice.

Even after signing a treaty, sovereign nations attach reservations, understandings, and declarations (RUDs) that condition, interpret, and limit the impact of a treaty.  The United States quite often will include a RUD stating that the treaty is not self-executing, or stating that the terms of a treaty are coterminous with our constitutional obligations.

When a nation does sign a treaty, its obligations are rarely permanent.  Treaties frequently allow for member states to withdraw from a treaty, and almost always permit suspension of treaty obligations in the face of a breach by another member state.

All of these tools are designed to preserve sovereigns’ prerogative to protect the national interest.  But it is not simply the formation and termination of treaties that are designed to protect sovereignty.  The performance obligations of treaties also are drafted to protect national sovereignty.

Most human rights treaties, for example, include Optional Protocols that require a nation to affirmatively opt-in to international adjudication of domestic behavior.  The same is true of the compulsory jurisdiction of the International Court of Justice.  The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts.  The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations.

Much of the concern about treaties relates to the risk of unanticipated consequences.  For example, international courts may interpret the terms of a treaty quite differently from what the United States anticipated.  This risk is mitigated in a number of ways.

First, the United States may choose whether to give those international decisions domestic effect in federal court.  As the Supreme Court noted in Medellin v. Texas, the “judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress.”  The domestic effect that international tribunal decisions have in federal courts falls along a continuum of deference according to the dictates of the political branches.

In some cases, such as the International Centre on the Settlement of Investment Disputes (ICSID), Congress has stipulated that an ICSID award “shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.”  In other cases, such as WTO decisions, awards are given no direct effect in federal courts, and any decision to comply with an adverse WTO decision is left to the sound discretion of the political branches.  In still other cases, such as awards rendered under the New York Convention, implementing legislation obligates federal courts to enforce foreign arbitral awards unless doing so would undermine our public policy.  Such public policy exceptions are “sovereignty safety valves” that allow a treaty commitment to give way to the national interest.

Second, if an international tribunal interprets a treaty contrary to the shared understanding of member states, some treaties allow member states to issue a binding interpretative statement that will supersede the tribunal’s interpretation.  This was done in the NAFTA context, when Canada, Mexico, and the United States issued a binding interpretive note in 2001 on the correct meaning of both substantive and procedural provisions of NAFTA.

Third, if the jurisprudence of an international tribunal is sufficiently objectionable, sovereign nations remain free to withdraw from the tribunal’s jurisdiction.  In 2005 the United States withdrew from the Optional Protocol of the Vienna Convention on Consular Relations, which vested the ICJ with jurisdiction over disputes arising from the convention.  In the late 1990s three Commonwealth Caribbean countries—Jamaica, Guyana, and Trinidad & Tobago—withdrew from the ICCPR’s Optional Protocol.  In recent years, Venezuela, Ecuador and Bolivia have announced their withdrawal from ICSID.

Fourth, there is the unanticipated risk of indirect application of international law.  Federal courts occasionally reference international tribunal decisions when interpreting domestic law.  The Charming Betsy doctrine, for example, counsels courts to interpret statutes consistent with international law as interpreted by international courts.  But in truth, this possibility advances rather than diminishes popular sovereignty.  The Charming Betsy doctrine was designed with separation of powers in mind, limiting the instances in which the judicial branch will construe legislative enactments to encroach on executive authority in the foreign affairs arena.  To the extent international law runs counter to the popular will, the Charming Betsy doctrine requires deference to the clearly expressed intent of Congress, regardless of what international law may require.

Finally, perhaps the greatest risk to popular sovereignty posed by international courts interpreting treaties is the possibility that federal courts will use these decisions as a device to interpret the U.S. Constitution.  This was a serious threat in a handful cases a decade ago, but it created such a popular uproar that courts have retreated from this experiment.  The very idea has become politically toxic, and every Supreme Court nominee now denounces the practice during confirmation proceedings.

In conclusion, we have little to fear from treaties.  Treaties are hardwired to protect national sovereignty.  The process of formation, performance and termination of treaties was designed to advance sovereign interests.  Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable.  Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs.

Facilitating not Hindering American Compliance with International Law - John Cerone

Facilitating not Hindering American Compliance with International Law

http://libertylawsite.org/liberty-forum/facilitating-not-hindering-american-compliance-with-international-law/

by John Cerone     MAY 6, 2012

In response to: Debating Sovereignty: Globalization, International Law, and the United States Constitution

State sovereignty is the fundamental building block of the international legal system.  International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty.  At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so.

Today’s international legal system is a strongly positivist, consent-based system.  In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to.  While states have chosen to greatly expand the scope and substance of international law, most of its rules remain in the form of broadly formulated obligations that leave the manner of their implementation in the broad discretion of states.

The US has been a proponent of the development of international law since the founding of the country, and this is reflected in its constitutional order.  The Constitution of the United States was not created in a vacuum.  It was well understood by the framers that they were drafting the Constitution against the backdrop of international law.  They consciously chose to buy into the international legal system because it was clearly advantageous to do so.  They wanted recognition as a sovereign equal, and all of the rights and protections that international law provided to states.

The international legal system of that time was a system largely oriented toward co-existence, and was one of relatively few rules.  Since that time, there has been a dramatic expansion in international law, driven largely by the need for international cooperation in tackling the world’s ills and in harnessing its opportunities.  The United States has played a central and powerful role in this evolution.  Successive US governments have consented to be bound by literally thousands of treaties, and have supported the creation of dozens of international institutions.  The US also frequently engages in treaty negotiations even in situations where it is clear that the US will not become a party to the treaty being negotiated.  The robust engagement of the US in this process results from the recognition that international law and international institutions are useful in serving US interests.

No one would dispute the importance of federalism and the separation of powers in the US constitutional system. But these principles are not at odds with robust engagement in the international legal system or a disposition toward compliance with international legal obligations.  The difference that has arisen seems to me to be one of locating the burden of inertia.  It is my view that the default position of the US constitutional system is, and ought to be, a disposition in favor of compliance.  For this reason, the doctrine of self-execution should be understood as a means of facilitating compliance.

The doctrine of self-execution

As noted above, international law generally does not dictate how international obligations are to be implemented within the domestic sphere.  In the absence of a specific obligation in a treaty to alter some facet of a state’s internal legal framework, it is usually up to each state to determine how to give effect to its international obligations.  That being the case, there is no established international legal standard governing how international law is to be received in the municipal sphere.  As a result, there is a great variety among states in the degree of penetration of international law into the domestic legal system.

The US constitutional design, consistent with the attitudes of the framers toward international law, favors the reception of international law into its internal legal order.  The U.S. Constitution declares that treaties made under the authority of the United States, together with the Constitution and federal law, “shall be the supreme Law of the Land.”  The U.S. legal system appears equally amenable to customary international law.  As the Supreme Court in The Paquete Habana famously proclaimed, “[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”

With regard to treaty law, U.S. courts have developed a doctrine of self-execution, whereby a treaty is to be regarded as “equivalent to an act of the legislature” when “it operates of itself without the aid of any legislative provision.”[1]  Such a self-executing treaty does not require any additional legislative act to render it applicable as part of U.S. law.  However, “when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.”[2]

This doctrine, which is a doctrine of US law and a further expression of US sovereignty, is based on the presumption that the US intends to comply in good faith with the international obligations it has voluntarily undertaken.  Understood as a means of facilitating compliance with international law, it is consistent with the design of the Constitution and the intentions of the framers.  For this reason, and in keeping with the jurisprudence of the Supreme Court that developed the doctrine, treaties should be presumed to be self-executing.

As noted above, this is simply a question of adopting a default position.  In the event of a conflict between a rule of U.S. federal law and a rule of international law applicable as U.S. law, the later in time rule prevails.[3]  Thus, a later in time federal statute will override, within the framework of the U.S. legal system, a self-executing treaty provision.  Thus, Congress can always effectively overrule a judicial finding of self-execution by enacting legislation.

The same is true for decisions of international courts, the jurisdiction of which is again consent-based.  Where the US is subject to a binding judgment of an international court, as, for example, in the Avena case before the International Court of Justice (ICJ), the judgment should be regarded as applicable US law.  If the US decides that it does not wish to implement that judgment within the framework of the US legal system, that option remains open, but it would require Congressional legislation.  This would leave the default position of the US legal system as one of compliance, which is as it should be.  Non-compliance should be exceptional, and affirmative steps should be required for the US to choose not to comply with an international obligation.

I therefore disagree with the approach of the US Supreme Court in the case of Medellin v. Texas, which held judicially unenforceable in US courts a judgment of the International Court of Justice.  The Court essentially held that ICJ decisions are not enforceable within the US in the absence of enabling legislation.  The fundamental problem with the Medellin judgment is that it leaves non-compliance with ICJ judgments as the default position.  The default position should be compliance, and as such, judicial enforceability.  If there are compelling reasons for non-compliance, the burden should be on the executive and the legislature to adopt measures to that end.

Mention also should be made here of the occasional practice of the Executive to append to instruments of ratification understandings that a treaty is or is not self-executing.  These understandings should not be considered in determining whether a treaty is self-executing.  The doctrine of self-execution is a judicial doctrine.  It is up to the courts to determine on the basis of the text of each treaty whether it is amenable to direct application as US law.  This falls within the power of the courts to determine and interpret the applicable law.

The power to interpret international law

The US President certainly has the power to interpret international law, just as he has the power to interpret any rule of applicable law.  This power is a necessary incident to his role as Chief Executive.  At the same, the President is of course not the exclusive interpreter of any law.  This is a fortiori the case when it comes to international law, which is subject to interpretation not just by other branches of government and other federal, state, and local officials within the US, but also by other states, international institutions, and the international community as a whole.

Within the framework of the US legal system, the President will often be the first to interpret rules of international law.  But if there is one clear principle of the separation of powers in the US constitutional system, it is that the interpretation of applicable law by the courts is determinative with respect to any dispute properly before them.  It makes no difference whether the applicable law is derived from legislation, executive acts, common law, international law, or any other recognized source of law.

The US Executive has the exclusive power to negotiate treaties.  It is vested with the exclusive power to consent to be bound by treaties on the international plane.  It has the capacity to attach to its expression of consent reservations, understandings, and declarations.  It is the lead voice in expressing consent to other rules of international law on behalf of the United States.  But its power to interpret international law, just as with all other rules of law, is not exclusive, and cannot be given primacy in matters properly before the courts without violating a basic principle of the separation of powers.

Federalism and the roles of the constituent states

The constituent states of the United States assuredly have a lead role in implementing international obligations that fall within their broad remit.  The US recognizes this whenever it appends a federalism understanding to its instruments of ratification.  But to say that they have a lead role in implementation, and that they have broad discretion in the manner of implementation, does not mean that they have the option not to implement.

It is well recognized that the states have a valuable role to play as laboratories for experimentation.  This is all the more the case for countries across the globe, which represent a much broader spectrum of diversity.  International institutions are frequently mandated to glean best practices from this broad array.  International law values and accommodates this diversity, and there is no reason to fear that it would hamper this cultivation of best practices.

As noted above, the difference in views appears to me to be one of setting the default position.  In line with the design of the US Constitution, the intent of the framers, the common sense presumption that the US intends to comply with its international obligations, the promotion of US interests, and the recognition that the default position can always be overcome by legislative and executive action, that position should be one that facilitates compliance, not one that hinders it.

[1] Foster v. Neilson, 27 U.S. 253, 254 (1829).

[2] Id.

[3] This refers to ordinary federal law.  It does not include rules of U.S. constitutional law, which would override any inconsistent rule of international law within the domestic legal system.

Debating Sovereignty: Globalization, International Law, and the United States Constitution - John Yoo

Debating Sovereignty: Globalization, International Law, and the United States Constitution

http://libertylawsite.org/liberty-forum/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.

Libya, Domestic Authority, and the Proper Analogy

http://www.lawfareblog.com/2011/03/libya-domestic-authority-and-the-proper-analogy/

by Jack Goldsmith

Bruce Ackerman and Oona Hathaway argue at the Huffington Post that President Obama lacks the constitutional authority to impose a no-fly zone in Libya in the absence of congressional authorization. Their main argument is that “[i]f Obama goes it alone, he must return to Bush-era assertions that the president, as commander-in-chief, can unilaterally launch the nation into war.”

This is wrong, for several reasons. George W. Bush sought and received congressional approval for both of his wars – against those responsible for 9/11, and in Iraq. Bush did proclaim unilateral presidential power to engage in preemptive self-defense, broadly conceived. But that rationale is not in play here, for as Ackerman and Hathaway note, “nobody suggests that Gaddafi’s assault on his domestic enemies is a threat to the United States.” Ackerman and Hathaway further claim that “President Obama immediately withdrew opinions written by John Yoo and others making . . . extreme claims” about the president’s power unilaterally to launch the nation into war. But this did not happen. Obama officials withdrew many Bush-era OLC opinions. But they did not withdraw the two very broad opinions in support of the president’s unilateral war powers related to terrorism and Iraq (and indeed probably never had an opportunity to consider them before now).

In their rush to paint intervention in Libya as a return to Bush-era assertions of presidential power, Ackerman and Hathaway miss the closest analogies. Perhaps the closest is President Clinton’s 1999 air campaign in Kosovo, without congressional authorization, which was justified legally on the basis of the President’s “constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”

Letter to Congressional Leaders Reporting on Airstrikes against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William J. Clinton 459, 460 (1999). The Kosovo intervention was not premised on self-defense, or on protecting American citizens or property, but rather on some combination of humanitarian protection and preserving peace and stability in the region. These are very similar to the rationales that appear to be on the table for a possible intervention in Libya.

If the U.N. Security Council supports a no-fly zone, other precedents will come into play, most notably the Korean War and the 1992 intervention in Somalia. There are many other precedents that must be considered to assess the legality of an intervention in Libya. None of them comes from the George W. Bush administration.

This was written by Jack Goldsmith. Posted on Thursday, March 10, 2011, at 1:33 pm