Academic journal article Harvard Law Review

The Normalization of Foreign Relations Law

Academic journal article Harvard Law Review

The Normalization of Foreign Relations Law

Article excerpt


Perhaps the biggest concern about normalization is that treating foreign relations as akin to ordinary domestic law would undermine the important justifications for exceptionalism: expertise, speed, secrecy, flexibility, error costs, and the nature of the subject matter. In this Part, we evaluate these justifications and show that the case for exceptionalism is weak. Foreign affairs issues, it turns out, raise the same competing separation of powers values that arise in the domestic context, and the purported differences between foreign and domestic affairs are often overstated.

A. Expertise

Perhaps the strongest justification for executive power, vis-a-vis Congress and the courts, is that the executive branch has greater expertise on foreign affairs issues than the other branches. (235) The argument has a number of components. First, the executive simply knows more about what is happening in other countries. (236) Second, the executive has greater institutional capacity--in terms of staff, materials, and background--to evaluate and consider international issues. (237) Third, judges are thought to be particularly bad at addressing foreign affairs issues because they are generalists with little expertise in the subject matter, (238) courts only engage in these issues "episodic[ally]," (239) and the sources used (treaties, customary international law, etc.) are unfamiliar. (240) Thus, scholars have argued that judges should defer to executive decisions because the executive "tracks relations with foreign states" more closely than other branches and is therefore "in a better position to predict whether a particular act of deference to foreign interests" will be beneficial or harmful to the United States. (241) Finally, some have argued that the courts do not have the institutional competence or resources to "track the evolution of international norms that govern the meaning of the terms" in foreign relations law. (242) On this argument, vague terms like "declare war" change over time in international law and practice, and the executive is best suited to interpret these changes.

But it is not obvious how the expertise justification is different in kind (or even in degree) from the executive's comparative expertise in domestic affairs. It is undoubtedly true that members of the executive branch know more about events in other countries than do judges or even Congress, but it is equally true that they know more about food and drug policy, environmental policy, banking regulation, and Medicare reimbursements. Nor is it satisfactory to respond that foreign affairs require "political" judgment rather than "technocratic" judgment. Although there are surely gradations, it is hardly clear that the decision to regulate smoking under the Federal Food, Drug, and Cosmetic Act was "technocratic," (243) while the negotiation and implementation of the Basel III accords on financial regulation was "political." (244) Similarly, the executive bureaucracy has greater institutional resources--in terms of staff, funding, and the like--to monitor and direct foreign affairs. But this is no different from the situation in domestic affairs. Indeed, one--if not the central--purpose and justification for the New Deal administrative state was that executive branch bureaucrats would be expert policymakers who would have greater competence, knowledge, and resources than members of the other branches, and would therefore be better at setting public policy. (245) And yet, in the domestic context, the legal system does not grant ill-defined constitutional power to the executive on claims of expertise. Rather, the Administrative Procedure Act provides a series of nuanced processes and participatory mechanisms that at once enable and constrain executive branch power.

The claims of judicial incompetence are equally inapposite. If the fact that judges are generalists should disqualify them from adjudicating foreign relations issues, it should also disqualify them from adjudicating most other issues in the federal courts. …

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