The Global Determinants of U.S. Foreign Affairs Law
Abebe, Daniel, Stanford Journal of International Law
A recurring debate in foreign affairs law focuses on the appropriate level of congressional and judicial deference to the President. In answering that question, most scholars focus on the Constitution, Supreme Court precedent, and historical practice for guidance, or evaluate the expertise and strategic incentives of Congress, the President, and the courts. For these scholars, the inquiry exclusively centers on domestic, internal constraints on the President. But this analysis is incomplete. Determination of the appropriate level of deference has consequences for how the President can pursue U.S. interests abroad If the United States wants to be successful in achieving its foreign policy goals, it requires some consideration of the external world in which the President acts. This Article challenges the conventional wisdom by arguing that the appropriate level of constraint on the President requires an evaluation of both internal constraints from domestic sources and external constraints from international politics. It provides a framework to integrate both sets of constraints, develops a theory of external constraints, and describes the normative implications of this approach for foreign affairs law. The Article argues that the failure to account for both internal and external constraints and to recognize their relationship might yield a deference regime that either does not provide the President with sufficient freedom to pursue U.S. interests (over-constrained), or leaves the President free to act without sufficient congressional and judicial oversight (under-constrained). It further explains the conditions under which higher and lower levels of constraints are preferable and moves us closer to determining the appropriate level of deference to the President in foreign affairs.
I. INTRODUCTION II. THE DEBATE ON THE ROLE OF INTERNATIONAL POLITICS IN FOREIGN AFFAIRS III. UNDERSTANDING THE RELATIONSHIP BETWEEN CONGRESS AND THE PRESIDENT A. Principal-Agent: Congress and the President B. Why Constrain the President? C. Internal Constraints and the President D. External Constraints and the President E. Which External Constraints? IV. AN EVALUATIVE METRIC FOR EXTERNAL CONSTRAINTS A. Polarity as a Proxy for External Constraints B. Measuring External Constraints C. Alternatives to Polarity 1. Material Power v. Soft Power 2. The Role of Regime Type 3. International Organizations 4. International Law and Norms 5. NGOs and World Public Opinion V. A FRAMEWORK OF EXTERNAL AND INTERNAL CONSTRAINTS A. Competing Models of Internal Constraint 1. Minimum Constraint Model 2. Maximum Constraint Model B. Model One or Model Two? C. External Constraints and Agency Costs 1. Substitutability 2. Costs and Benefits of Redundancy 3. Over and Under Constraint 4. Agency Costs in a Unipolar World VI. THE FRAMEWORK IN OPERATION--IMPLICATIONS FOR FOREIGN AFFAIRS LAW A. Incentives of Congress and the Courts B. Implications for Deference in Foreign Affairs VII. CONCLUSION
Perhaps the most important question in foreign affairs law concerns the appropriate level of congressional and judicial deference to the President. In other words, how much, if at all, should Congress and the courts constrain the President? The two main approaches to the question are legalist and functionalist. The legalist approach turns to the Constitution, Supreme Court precedent, and historical practice for guidance, while the functionalist one hinges on an evaluation of institutional competencies and incentives. Despite these differences, both legalist and functionalist approaches focus on the role of Congress and the courts as constraints on the President. So, to determine the appropriate level of deference to the President, scholars evaluate only domestic, internal factors. …