Academic journal article Law and Contemporary Problems

International Delegations and the Values of Federalism

Academic journal article Law and Contemporary Problems

International Delegations and the Values of Federalism

Article excerpt

INTRODUCTION

Among U.S. legal scholars who specialize in foreign-relations law, there is a growing debate about the constitutional implications of international delegations. (1) Almost all of this debate has focused on separation-of-powers issues (especially the nondelegation doctrine and the Appointments Clause), (2) as well as on Article III concerns. (3) A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. (4) "Federalism," Swaine submits, "superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in their favor." (5)

Putting aside for a moment the persuasiveness of this claim, it is plain that the theory and practice of federalism are relevant to analyzing the law and politics of international delegations, including their costs and benefits. (6) American federalism endeavors to vindicate certain values by protecting the regulatory autonomy of U.S. states. (7) International delegations pose a potential threat to these values by undermining state control: such delegations may cause international bodies or foreign nations to exercise authority that would otherwise be exercised by the states. (8) Accordingly, it is worth thinking about the effects of international delegations on the values of federalism. (9)

This inquiry conducts such an examination and concludes that the relationship between an international delegation and federalism values depends upon what would happen in the absence of the international delegation. When the delegation replaces regulation by the federal government that would have displaced state choices anyway, then the delegation has no effect on state regulatory control, but an uncertain net effect on federalism values. The impact turns on the relative inclinations of the federal government and the international body to decentralize.

When, however, there would be no federal regulation in the absence of an international delegation, so that the delegation reduces the autonomy of subnational states, then the justifications for international delegations, whether constitutional or prudential, do not include the values commonly understood to be associated with federalism. In this situation, the submission that international delegations diffuse political power is unpersuasive: power is more diffused when fifty states maintain their regulatory autonomy than when one international body is awarded control. When international delegations reduce state autonomy, moreover, they compromise every other value that federalism is commonly thought to advance.

To be clear, international delegations are here to stay. Like "[m]ost nations today," the United States "participate[s] in a dense network of international cooperation that requires [it] to grant authority to international actors." (10) The very pervasiveness of international delegations indicates that they offer significant benefits--from reducing transaction costs, to solving coordination and collective action problems that single nations--let alone subnational states--cannot solve on their own, to protecting certain basic human rights. (11) When international delegations help to internalize a supranational externality, all that U.S. states may lose is the ability to continue not being able to solve a problem on their own. Moreover, subnational states may avail themselves of international law, including international delegations, as a source of legislative inspiration in the face of the federal government's refusal to acts

At the same time, it makes scant sense to conceive of the compromising of federalism values potentially caused by international delegations as a benefit sounding in the values of federalism, even if some other kind of benefit is at stake. The purpose of this article is neither to bury international delegations nor to praise them. …

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