Ratcheting Back: International Law as a Constraint on Executive Power

Article excerpt

Constitutional scholars have long noted the historic tendency of the Executive to accrue power in times of security concern. (1) In this respect, the George W. Bush Administration might generally be understood to have fulfilled constitutional expectations--asserting broad power in the years following the devastating attacks of September 11 to detain, interrogate, and try suspected terrorists, notwithstanding treaty obligations arguably to the contrary. (2) As we begin assessing the still new Obama Administration, it thus seems necessary to ask whether it is fulfilling the closely related constitutional expectation: that presidential power over national security only grows over time. (3) By most accounts, the history of executive power relative to the other branches has been one of dramatic, often security-driven, expansion. (4) The expansion is attributed to a number of factors, including not only the Executive's institutional ability to act with speed and initiative, but also to the domestic and international political incentives that shape the presidency. As Harold Koh put it (writing in the wake of the Iran-Contra scandal): "[A] pervasive national perception that the presidency must act swiftly and secretly to respond to fast-moving international events has almost inevitably forced the executive branch into a continuing pattern of evasion" of restraint. (5) Moreover, far from acting as a constraining external force on increasingly bold assertions of presidential authority, Congress and especially the courts have allowed the President to assert it. (6) Together, such forces combine to ensure that only a one-way ratchet is applied to presidential power.

Yet the recent change of presidential administration provides an intriguing set of examples by which one might measure the continued salience of the one-way ratchet paradigm in the post-September 11 world. Among other contrasts, the Administrations of Bush and Obama would appear by composition to differ substantially in their relative commitment to international law as a meaningful constraint on national power. The Bush Administration had asserted broad executive power to resist the application of international law in a way that would constrain U.S. counterterrorism operations. It had also advanced the view that the power to interpret treaty obligations--to "say what the law is" as provided by treaties--rests primarily or even exclusively with the Executive himself. (7) The interpretation power in particular has been of some significance in inter-branch battles past; indeed, "'reinterpretation'" had become a central means by which Presidents have effectively amended treaty obligations they found troubling. (8)

In seeming distinction, the Obama Administration thus far has been peopled with officials almost certain to hold a contrary view. Among others, Legal Adviser to the State Department Harold Koh under President Obama has built a career advocating for careful adherence to international law as part of "our law." (9) Obama Administration Director of the State Department Office of Policy Planning Anne-Marie Slaughter has likewise advocated measures to make international law more effective in constraining national power by promoting more direct engagement within domestic legal systems. (10) Does the Obama Administration resist asserting a similar degree of interpretive prerogative over international law? Or does the one-way ratchet effect prove too great a temptation in this regard?

While it is still early enough in the Obama Administration to make any conclusions uncertain, this essay considers a set of steps that might be seen to reflect a greater willingness by the Administration to acknowledge limits imposed on the Executive by treaty commitments, and arguably a greater willingness to share power to interpret treaties with the courts. If these early indications prove meaningful, they raise a series of questions about the political and structural mechanisms said to drive the one-way ratchet. …