Chevronizing Foreign Relations Law
Posner, Eric A., Sunstein, Cass R., The Yale Law Journal
INTRODUCTION I. INTERNATIONAL RELATIONS DOCTRINES A. Comity Doctrines B. Anti-Comity Doctrines II. BEHIND THE DOCTRINES A. Entanglement B. Consequences and Reciprocity 1. Consequences in General 2. Rules and Standards C. Questions and Doubts III. EXECUTIVE POWER A. The Chevron Doctrine 1. Two Steps 2. Limits on Deference a. Delegated Power of Interpretation? b. Nondelegation Canons? c. Organic Statutes and Others B. The Executive and International Comity 1. Traditional Deference to the Executive in Foreign Relations 2. Conflicts Between Regulations and International Comity C. The Argument for Executive Power D. A Historical Evolution E. Objections and Responses 1. Nondelegation Canons? 2. Self-Dealing 3. Mead, Chevron, and Bureaucracy 4. Short Term, Long Term, and Stability 5. Eliminating Congress? 6. Miscellanea IV. HARD CASES: THE AUMF AND THE WAR ON TERROR A. The AUMF in General B. Hamdi C. Hamdan D. A Note on Congress CONCLUSION
Federal law contains a range of international comity doctrines, developed by judges to reduce tensions between the United States and other nations. These doctrines instruct courts to interpret American law in a way that avoids conflict with, or offense to, foreign sovereigns. The international comity doctrines are a subset of what we shall call international relations doctrines--doctrines that control how courts decide cases that influence foreign relations but that do not always require courts to defer to the interests of foreign sovereigns. Our modest goal here is to offer a sympathetic reconstruction of the underpinnings of these doctrines. Our more ambitious goal is to suggest that courts should generally draw on established principles of administrative law to permit executive interpretations of ambiguous statutory terms to overcome the international relations doctrines. This approach would greatly simplify current law; it would also allocate authority to the executive, which is in the best position to balance the competing interests.
To understand the operation of the international relations doctrines, consider the following problems:
(1) The Civil Rights Act of 1964 forbids discrimination on the basis of sex. (1) American businesses operating in Saudi Arabia discriminate against female workers, some of whom are also Americans. The workers bring suit, contending that the statute has been violated. Under the presumption against extraterritoriality, ambiguous statutes are not applied to conduct that occurs on foreign territory. (2) It follows that unless Congress has clearly said otherwise, the prohibition on sex discrimination applies only within the physical boundaries of the United States. (3) The usual rationale would be to prevent offense to Saudi Arabia. But does Saudi Arabia really care about sex discrimination by American businesses practiced against American employees? Even if it does, does it care enough that the discriminatory practice should be tolerated? The executive branch, which has the best information about relations with Saudi Arabia, says no. (4) Should courts defer to the executive?
(2) The Immigration and Nationality Act authorizes Immigration and Customs Enforcement (ICE) to detain dangerous aliens who cannot be repatriated because their home countries will not accept them. (5) ICE interprets this authorization as permitting it to hold an alien convicted of manslaughter for an indefinite period. The alien brings suit, arguing that ICE has violated the statute, which does not speak to this particular question. Under the Charming Betsy doctrine, (6) which requires courts to construe ambiguous statutes so as not to violate international law, the immigration statute should be interpreted to forbid "prolonged and arbitrary" detention in violation of non-self-executing treaties or customary international human rights law. (7) The executive branch, which has better information about the consequences of violating international law, argues against application of the Charming Betsy doctrine. If we suppose that Congress has not incorporated the relevant aspects of international law into domestic law, should courts defer to the executive?
(3) The Foreign Sovereign Immunities Act (FSIA) generally forbids lawsuits against foreign sovereigns in American courts, but it contains a number of exceptions, one of which permits suits when the sovereign has expropriated property in violation of international law. (8) A plaintiff sues Austria, arguing that it expropriated artworks that belonged to her family during and after World War II. Prior to enactment of the FSIA in 1976, the judge-made foreign sovereign immunity doctrine did not contain an exception for illegal expropriations. The executive branch argues that the FSIA should not apply retroactively, fearing that litigation would upset delicate international arrangements to provide compensation to victims of Nazi atrocities. Should the court accept the interpretation of the executive branch? (9)
Each of these examples raises two questions. The first involves the operation of the international relations doctrines. Why, exactly, should courts interpret statutes to avoid extraterritorial application (as in the first example) or the violation of international law (as in the second example)? The conventional explanation is that otherwise foreign sovereigns would be offended, but neither of our first two examples provides a strong case for such a view. (10) We argue that the international relations doctrines are best understood by an account that emphasizes the costs of deferring to foreign interests, which may be substantial, as well as the benefits. As we show, important American interests may justify giving offense to foreign sovereigns--including, for example, the interests in vindicating laws forbidding discrimination and protecting the environment. (11)
The second question involves the role of the executive. When the executive advances an interpretation of a statute that violates international comity doctrines (the first two examples) or otherwise places a strain on the ordinary meaning of a statute (the third example), should the executive's interpretation be entitled to respect? This question has not yet been answered squarely by the courts. Drawing an analogy to the administrative law doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (12) and arguing that Chevron often applies directly, we contend that courts should generally defer to the executive on the ground that resolving ambiguities requires judgments of policy and principle, and the foreign policy expertise of the executive places it in the best position to make those judgments. The exceptions here are the standard exceptions to Chevron itself: most importantly, those that require the national legislature to speak clearly if it seeks to raise serious constitutional doubts. The avoidance canon is the most prominent example of a limitation on implicit delegations of authority to the executive.
The importance of the international relations doctrines has been growing over time-a consequence of the increasing frequency of cross-border activity and the corresponding efforts of the U.S. government to regulate that activity. Of course, the war on terror is a factor here, but the change is far more general. Antitrust law can be used against foreign businesses to ensure that they do not engage in anticompetitive practices that injure Americans. (13) To say the least, American citizens have a strong interest in freedom from sex discrimination, but application of American law to actions in, say, Saudi Arabia might well cause international tensions. Americans also care about whether foreign sovereigns adequately investigate and prosecute international terrorists who plot on their soil but conduct operations in the United States. All of these activities are potentially governed by the international relations doctrines.
As we shall see, the doctrines have plausible justifications. Courts are alert to the risks of creating international tensions, and in many cases they seem to be making a presumptive judgment that deferring to the interests of foreign sovereigns produces benefits for Americans that outweigh the costs. For this reason, courts have concluded that Congress must explicitly authorize extraterritorial application of domestic law, or a violation of international law, or any other decision that threatens international comity. But there are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity, at least when the underlying statute is unclear. (14) The executive branch can claim a constitutional warrant for making the underlying judgments in the face of congressional silence or ambiguity, and it is in an exceedingly good position to balance the relevant interests.
This simple argument fits with the logic of some recent decisions, (15) but it also has radical implications, some of which are likely to be controversial. The most obvious is that courts should play a smaller role than they currently do in interpreting statutes that touch on foreign relations. Another is that the executive branch should be given greater power than it currently has to decide whether the United States will violate international law. Our argument also implies greater deference to the executive when it intervenes in private litigation. Under our approach, the expressed will of Congress would still control, and the international relations doctrines would continue to resolve cases in which the executive has not taken a position. In such cases, the default assumption would follow the established doctrines; an affirmative statement by the executive would be necessary to overcome that assumption. But if an affirmative statement by the executive were forthcoming and its position were reasonable, the courts would defer to the executive on whether to promote or reject comity.
An additional implication, and an especially controversial one, is that comity-related ambiguities in any grant of power to the President, including an authorization to use force, should be settled by the executive, even if international law is inconsistent with the executive's view. This claim offers several lessons for the proper analysis of the Court's initial encounters with the war on terror, above all in Hamdi v. Rumsfeld (16) and Hamdan v. Rumsfeld. (17) As we shall see, the Court neglected the analogy to Chevron-a puzzling and important omission-and an understanding of the analogy helps to provide a significant reconstruction of the prevailing analysis in both cases.
Let us offer an important clarification before we begin. The domain of our analysis is restricted to genuine ambiguities in governing law. If the law is clear, the executive is bound by it, and this point holds for international law that is the result of self-executing treaties or that has been given domestic effect by congressional action. Nothing in our argument suggests that the executive may violate the law as enacted by Congress. It is because statutes are often unclear that our argument, no less than Chevron itself, should have broad implications.
I. INTERNATIONAL RELATIONS DOCTRINES
Over a period of many years, courts have adopted numerous rules for litigation that touch on the interests of foreign sovereigns or their citizens. These rules apply only in the absence of congressional guidance; the national legislature is permitted to settle the underlying questions as it chooses. While most of these doctrines are specifically designed to promote comity, others must be justified in different terms because they promote American interests at the expense of comity.
A. Comity Doctrines
The Charming Betsy canon. This canon provides that an ambiguous statute will be interpreted to avoid conflicts with international law. Return to one of the cases with which we began: an ambiguous law that permits ICE to detain an alien who cannot be repatriated will not be interpreted as permitting indefinite detention, because such detention would violate the prohibition of "prolonged and arbitrary" detention in international law. (18) Note that the Charming Betsy canon does not apply to statutes that are clear; if a statute unambiguously conflicts with international law, international law is superseded and deprived of domestic effect. And if international law is incorporated in domestic law, there is no need for the Charming Betsy canon; domestic law, by hypothesis, already includes international law.
Extraterritoriality. The presumption against extraterritoriality provides that an ambiguous statute will be interpreted not to apply to conduct outside the United States. The Civil Rights Act of 1964 did not explicitly state whether it applies abroad or not; it was therefore interpreted not to apply to discriminatory behavior of American businesses located in Saudi Arabia. (19)
Act of state doctrine. The act of state doctrine provides that a court may not evaluate the act of another state that takes place within its own territory. Shortly after the Cuban revolution, the Cuban government expropriated sugar that belonged to an American company. Another firm entered a contract with Cuba for the sugar but refused to pay for it after the sugar was delivered, fearing that it might be liable to the victim of expropriation. Cuba sued the buyer in an American court, and the buyer defended itself by arguing that Cuba did not have clear title to the sugar because the expropriation was illegal. Under the act of state doctrine, the court could not accept this argument because it would have involved an evaluation of Cuba's conduct; it had to assume that Cuba's title was valid. (20)
Foreign sovereign immunity. In the nineteenth century, the Supreme Court developed the doctrine of foreign sovereign immunity, which grants foreign sovereigns immunity from liability for violating the law. (21) The rule was relaxed in the twentieth century, mainly in cases involving a commercial defendant owned by a foreign sovereign. (22) In 1976, the doctrine was codified in the FSIA. (23) The statute contains some new exceptions-for example, it denies immunity to state sponsors of terrorism. (24) A related doctrine provides immunity to heads of state. (25)
Comity in general. Case law equivocates between calling international comity a value and a rule. As a value, it reflects the sense that cases affecting foreign interests should be decided in a manner that accounts for these interests in some way--hence our reference to "international comity doctrines" in general. Courts also sometimes cite international comity as an explanation for outcomes that are not explicitly driven by the doctrines we have discussed, and here comity is sometimes treated as a rule. For example, the Supreme Court cited international comity in explaining why courts should defer to the judgments of international arbitrators employed to resolve international contractual disputes. (26) In a recent case, Justice Breyer cited concerns about international comity to explain his uneasiness with applying the Alien Tort Statute to litigation in which both parties were aliens and the tortious conduct took place on foreign territory. (27) Courts also appeal to international comity to justify staying litigation in the United States when parallel litigation is ongoing in foreign countries. (28)
Taken as a whole, this body of doctrines implies that courts should take seriously the interests of foreign sovereigns as offering interpretive guidance when domestic statutes are silent or ambiguous on the issues and even sometimes when domestic statutes are fairly clear. An American court might offend foreign sovereigns by violating international law that reflects their interests, by interfering with their regulation of activities on their territory, by taking cases in the resolution of which they have a strong interest, by evaluating their activities, or by issuing judgments against them.
B. Anti-Comity Doctrines
Some international relations doctrines do not promote comity at all. On the contrary, they advance American interests at the expense of foreign interests. We call these the "anti-comity doctrines."
The revenue rule. The revenue rule provides that an American court will not enforce a tax judgment of another nation. (29) Suppose that a Canadian or American citizen fails to pay taxes in Canada. The taxpayer flees to the United States, and the Canadian government brings suit in an American court, asking the court to enforce the Canadian tax law or a judgment based on it. The revenue rule prohibits the American court from enforcing the Canadian tax law or judgment. Note that the revenue rule is rooted in state rather than federal law; it has not been overridden at the national level and in that sense has received national acquiescence over time.
The penal rule. Under the penal rule, an American court may not enforce a foreign criminal judgment. (30) By contrast, an American court is generally supposed to enforce other types of judgments--for example, those resulting from breach of contract or tort--unless there are public policy reasons not to do so. (31) It should be clear that the revenue and penal rules do not show much respect for the interests of a foreign state. The penal rule, like the revenue rule, is rooted in state rather than federal law. (32)
Public policy exceptions to enforcement of foreign law and judgments. Standard choice of law rules also contain a significant exception for judgments and laws that violate American public policy. American courts refuse to enforce judgments of countries that have corrupt or ineffective legal systems. (33) They have also refused to enforce foreign laws that offend American values or sensibilities--most notably British libel law, which is less protective of expression than the First Amendment would require. (34) It follows that American courts will not uphold judgments against defendants under British libel law, even if ordinary conflicts principles would otherwise call for deference.
These anti-comity doctrines assert American interests in the context of international relations, potentially or actually at the expense of the interests of other countries. These doctrines are, to be sure, rules of state law, while the comity doctrines are rules of federal law; nonetheless, the anti-comity doctrines do determine legal outcomes, and they are applied by federal courts in diversity cases and in federal question cases involving state law predicates. As we shall now see, the existence of doctrines that jeopardize comity casts the international relations doctrines in a distinctive light.
II. BEHIND THE DOCTRINES
What underlies these various doctrines? To answer this question, we take the comity and anti-comity doctrines together because both are designed to sort out the relationship between international relations and domestic law.
It is tempting to suggest that the doctrines track Congress's own intentions, on the theory that Congress ordinarily expects and hopes that the law will be interpreted in the way indicated by the doctrines. But this explanation seems highly artificial. Congress frequently enacts statutes that violate international law, apply extraterritorially, or otherwise ignore notions of comity. (35) Perhaps Congress's failure to take these steps explicitly signals its acceptance of the outcomes produced by the comity doctrines. But when a statute is silent about these issues, Congress is most unlikely to have had any intentions or even to have thought about the question at all.
On an alternative view, the doctrines track congressional intentions only in the sense that they provide the background against which Congress legislates. (36) To the extent that some of the doctrines are clear and firm--consider the presumption against extraterritoriality--Congress might be assumed to want them to apply unless it directs otherwise. In a sense, the doctrines are incorporated by reference. As with the canon against retroactivity, (37) so too with the comity doctrines: they are part of the fabric of existing law, and Congress is best taken to endorse them unless it expressly displaces them.
In our view, this position also suffers from a lack of realism. It is true that the doctrines are part of the "background" in the sense that they are invoked by courts in the face of congressional silence. But is it plausible to say that Congress, as such, should be charged with endorsing them, or even with knowing what they are? Perhaps particular legislators and members of relevant interest groups are aware of the doctrines. But there is a large distance between acknowledging this possibility and suggesting that Congress should be understood to have endorsed the doctrines as part of the background against which it does its work. The real basis for the international relations doctrines must be normative; it must be that they ought to be taken as part of the legislative background, not that Congress does so take them.
A common explanation for international comity doctrines is that they avoid unnecessary entanglements with foreign states. (38) We now evaluate this conventional wisdom, which we call the "entanglement theory." We argue that it is inferior to a broader theory, which we call the "consequentialist theory" because it identifies other important consequences in addition to that of entanglement. (39) This theory, we suggest, helps explain those principles that require a clear congressional statement. (40) Offering a justification for the international relations doctrines is one of our central goals, but as we shall see the argument for deference to executive interpretations follows on either account.
The entanglement theory suggests that international comity doctrines reduce the risk that courts will inadvertently cause foreign policy tensions or crises by offending other nations. The act of state doctrine prevents courts from angering foreign sovereigns by expressing disapproval of their sovereign acts. (41) The FSIA similarly prevents courts from declaring that a foreign sovereign has violated an American law, an action that the foreign government might regard as an insult to its sovereignty. The presumption against extraterritoriality prevents courts from interfering with the ability of foreign governments to regulate activity on their own soil. (42) The common theme is that a court might inadvertently increase international tensions or, in the extreme case, even provoke an international crisis by offending or injuring a foreign nation. That nation might then retaliate against the United States, for example, by withdrawing its participation in a vital area of international cooperation or directing its own courts to commit similar offenses against the United States.
To be sure, the comity doctrines are default rules only; courts will not interfere with a legislative determination that America's interests are advanced despite (or because of) the international conflict. But because, all else equal, foreign conflict is undesirable, courts will assume that it does not serve America's interests unless Congress explicitly says otherwise.
In our view, the theory is superficially attractive but ultimately unpersuasive. The problem with the theory is that it identifies the benefits of deferring to foreign sovereigns (avoiding offense, retaliation, and conflict), but it does not account for the costs of deferring to foreign sovereigns (preventing the United States from advancing its interests, including protecting American citizens from discrimination or preventing the loss of endangered species or some other kind of serious environmental harm).
In addition, the entanglement explanation for comity rules cannot be reconciled with the …
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Publication information: Article title: Chevronizing Foreign Relations Law. Contributors: Posner, Eric A. - Author, Sunstein, Cass R. - Author. Journal title: The Yale Law Journal. Volume: 116. Issue: 6 Publication date: April 2007. Page number: 1170+. © 2009 Yale University, School of Law. COPYRIGHT 2007 Gale Group.
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