Academic journal article The Yale Law Journal

Disregarding Foreign Relations Law

Academic journal article The Yale Law Journal

Disregarding Foreign Relations Law

Article excerpt

INTRODUCTION

I.   OUR VIEW: MAKING, BREAKING, AND INTERPRETING LAW IN THE
     "EXECUTIVE-CONSTRAINING ZONE"

II.  UNDERSTANDING THE STRENGTH (OR LACK THEREOF) OF DEFERENCE
     CLAIMS

III. THE CASE AGAINST POSNER AND SUNSTEIN'S PROPOSAL TO PROVIDE
     DEFERENCE IN THE EXECUTIVE-CONSTRAINING ZONE
     A. Evaluating the Affirmative Case for Deference
     B. Boundary Problems
     C. Excessive Concentration of Power in the Executive
     D. The Withering of Congress's Role
     E. One Precondition to Deference: Bureaucratic Expertise

CONCLUSION

INTRODUCTION

What role should courts play in the interpretation and application of foreign relations law? One important aspect of this question is whether and when courts should second-guess the executive on matters that implicate foreign relations. This issue is as difficult as it is important. On the one hand, the executive has both unique institutional virtues and substantial constitutional authority when it comes to foreign affairs. On the other hand, this sphere of government activity is increasingly governed by law-law that both purports to regulate the actions of the executive and that is made at least in part outside the executive. The upshot is that although some deference is almost certainly often warranted, too much deference risks precluding effective regulation of executive action.

Eric Posner and Cass Sunstein call for a dramatic expansion in the deference that courts accord executive interpretations of law in the foreign affairs context. (1) They maintain that courts should defer to the executive in a broad class of cases, even if the executive interpretation is articulated only as a litigation position and even if the executive's interpretation is inconsistent with international law. (2 Of course, courts do, in fact, often defer to the executive in foreign affairs cases. (3) Nevertheless, Posner and Sunstein urge that even greater deference is required. (4) In their view, the proper scope of deference is limited only by a narrow range of underspecified nondelegation canons and a "reasonableness" inquiry analogous to that articulated in the line of administrative deference cases starting with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (5) Although Chevron-style deference formally preserves some role for the judiciary to review executive interpretations for their "reasonableness," courts conducting such review rarely invalidate agency action. (6) Despite this fact, Posner and Sunstein insist that

   [r]eview of executive interpretations for reasonableness
   nonetheless should be expected to have a significant function.
   It would, for example, raise questions about apparently
   arbitrary differences across time or across nations, as in an
   executive judgment that the civil rights statutes apply in England
   and Germany but not in France and Italy; any such judgment would
   have to be explained. (7)

These claims, though, are difficult to square with the very reasons why, in their view, Chevron deference is appropriate in foreign relations law in the first place. As we explain more fully below, Posner and Sunstein claim that robust deference is appropriate in the foreign relations realm precisely because the application of this law almost always turns on case-specific judgments of prediction and value-judgments that the flexible, energetic, and accountable executive is well suited to make. (8) The upshot is that Chevron-style deference of the sort they propose would radically expand the authority of the executive to interpret and, in effect, to break foreign relations law.

We disagree with their approach. We believe that it would have been a bad idea at the Founding and is an even worse idea today. We are motivated to respond to Posner and Sunstein not simply because of the increasing importance of this issue in the wake of the treacherous attacks of September 11, 2001, but also because we fear that the innovative proposal by these accomplished academics may lead courts down a path that would depart from longstanding precedent at a crucial moment in the development of international law, particularly international humanitarian law. …

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