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. …