International delegations and the values of federalism

Law and Contemporary Problems

Volumn 71, Issue 1, 2008, Pages 93-113

  Siegel, Neil S ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 48949106708     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (158)

1. Following the lead of Curtis Bradley and Judith Kelley, I define an international delegation as "a grant of authority by two or more states to an international body to make decisions or take actions." Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, 71 LAW & CONTENT. PROBS. 1, 3 (Winter 2008). As Bradley and Kelley explain, international delegations take many different forms, leaving nations and subnational units of nations (for example, U.S. states) with varying degrees of regulatory control regarding the subject matter of the delegation.
2. See, e.g., LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 272 (2d ed. 1996);
3. Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557 (2003);
4. Jim C. Chen, Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement, 49 WASH. & LEE L. REV. 1455 (1992);
5. Michael J. Glennon & Allison R. Hayward, Collective Security and the Constitution: Can the Commander in Chief Power Be Delegated to the United Nations?, 82 GEO. L.J. 1573 (1994);
6. David M. Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697 (2003);
7. Neil Kinkopf, Of Devolution, Privatization, and Globalization: Separation of Powers Limits on Congressional Authority to Assign Federal Power to Non-Federal Actors, 50 RUTGERS L. REV. 331 (1998);
8. Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71, 121 (2000);
9. John C. Yoo, The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 CONST. COMMENT. 87 (1998).
10. See CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW 398-400 (2d ed. 2006).
11. See generally Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492, 1494 n.3 (2004).
12. Id. at 1502;
13. see also id. at 1613 ("Taking international delegations seriously reveals a constitutional character that serves, however inadvertently, many of the same ends as have the U.S. states. On this view, delegations of lawmaking authority to international institutions may promote the values underlying domestic federalism);
14. id. ("[D]iscovering legitimate bases for worrying about international delegations also provides a ground for resolving an extrinsic constitutional objection - federalism - and reveals a potential reason actually to embrace those delegations.").
15. Bradley and Kelley use the term "sovereignty costs" to refer to "reductions in [nation-]state autonomy through displacement of its decisionmaking or control." Bradley & Kelley, supra note 1, at 27.
16. Because I approach this subject from the perspective' of debates about federalism in U.S. constitutional law, I prefer to call reductions in national autonomy "autonomy costs." As used by the U.S. Supreme Court, the concept of "sovereignty" is a whole other kettle of fish; it is bound up with symbolic notions of the "dignity" of subnational states. The Court has even been willing to compromise the regulatory autonomy of the states in order to advance its conception of state sovereignty. See generally Neil S. Siegel, Commandeering and its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629 (2006);
17. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 24, 35, 131 (2004) (distinguishing "sovereignty" in the sense of legal unaccountability for violations of federal law from "autonomy" defined as the ability of the states to govern; submitting that "[f]he Court's preference for sovereignty over autonomy is the most obvious hallmakk of the 'federalist revival"' and arguing that "[a]ny set of federalism doctrines focused on autonomy must make preemption its primary concern");
18. Ernest A. Young, State Sovereign Immunity and the Future of Federalism, 1999 SUP. CT. REV. 1, 39-40 (contending that the Court's preemption decisions are significantly more important for state autonomy than are the rulings articulating a robust conception of state sovereign immunity).
19. By "federalism," this article refers to a constitutional regime that aims to vindicate certain values (specified below) by affording significant protection to the regulatory autonomy of subnational states. In other words, this inquiry uses the term "federalism" in the sense of protecting state control, not in the distinct normative sense of achieving the optimal vertical division of authority between the federal government and the states. See infra note 35 (discussing these distinct conceptions of federalism). In this regard, this article adopts the terminology of the U.S. Supreme Court, which tends to conceive of federalism as a reason to limit federal power, not as a reason to validate its use. One should recognize, however, that federalism could reasonably be understood in the different normative sense just identified.
20. Because this article traces out the impact of international delegations on the values commonly thought to be advanced by a federal system, the domestic political structure is conceived of not merely as a cause of international law and legal institutions, but also as an effect. Ernest Young implicitly does the same in examining how globalization puts pressure on the American constitutional structure. See generally Ernest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT'L L. J. 527, 538 (2003).
21. For a classic exercise in "reasoning from international system to domestic structure," see Peter Gourevitch, The Second Image Reversed: The International Sources of Domestic Politics, 32 INT'L ORG. 881, 882 (1978).
22. This problem is hardly of importance only to American federalism. See, e.g., FEDERALISM, UNIFICATION, AND EUROPEAN INTEGRATION (Charlie Jeffery & Roland Sturm eds., 1993) (exploring "the problems which have emerged from the perspective of the Länder following the incorporation of the former GDR into the Federal Republic and the progressive incursions of the European Community into policy areas formerly reserved to the Länder by the Basic Law");
23. Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 242-43 (Kalypso Nicolaidis & Robert Howse eds., 2001) (discussing how the German Länder demanded and secured a more prominent role in the German government's dealings with the EU).
24. Bradley & Kelley, supra note 1, at 1.
25. See, e.g., Bradley & Kelley, supra note 1, at 25-27 (referencing the literature);
26. Oona Hathaway, International Delegation and State Sovereignty, 71 LAW & CONTEMP. PROBS. 115 (Winter 2008) (discussing various benefits of international delegations).
27. See, e.g., Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. PA. L. REV. 245, 245-46 (2001) ("[I]n the absence of federal ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), San Francisco has incorporated principles of CEDAW into binding local law. In the death penalty context, where the federal government has not yet opted to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights..., aimed at the abolition of the death penalty, a handful of cities have urged their states, and in some cases the federal government, to support a moratorium, relying on the United Nations Commission on Human Rights' call for such a moratorium." (footnotes and internal quotation marks omitted));
28. Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 667 (2001) ("Within the United States, localities are turning to international law as a model for their own lawmaking.... And, as of 2000, nine states, the Territory of Guam, sixteen counties, and thirty-eight cities have enacted ordinances calling on the United States to ratify CEDAW.").
29. See, e.g., Siegel, supra note 6.
30. See, e.g., ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 103-04 (2000).
31. This inquiry assumes (but does not show) that a federal system in fact advances what are herein denoted "federalism values." See infra Part IV (clarifying the scope of the argument).
32. See, e.g., Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 380-95.
33. FEDERALIST NO. 51 (James Madison) ("In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people."). But see FEDERALIST NO. 10 (James Madison) (arguing that minority rights will be less vulnerable to majority tyranny in a heterogeneous, extended republic).
34. FEDERALIST NO. 51 (James Madison).
35. 501 U.S. 452 (1991). In Gregory, Missouri state-court judges asserted that the mandatory retirement age in the state constitution violated the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34 (2006).
36. 501 U.S. at 456.
37. The Supreme Court issued a "clear statement" rule of statutory interpretation. Justice O'Connor wrote for the majority that the Court will construe federal law to apply to important state government activities only if Congress issues a clear statement that it wants the law to apply to the states in these circumstances. Id. at 461.
38. Because the ADEA lacked such a clear statement, the Court concluded that the federal antidiscrimination law did not preempt the state's mandatory retirement age. Id. at 467.
39. In so holding, the Court underscored the importance of the Tenth Amendment in protecting state autonomy. Id. at 461 ("This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.");
40. Id. at 463 ("[T]he authority of the people of the States to determine the qualifications of their most important government officials... is an authority that lies at the heart of representative government. It is a power reserved to the States under the Tenth Amendment....") (internal quotations omitted).
41. Id. at 458 ("Perhaps the principal benefit of the federalist system is a check on abuses of government power. 'The "constitutionally mandated balance of power" between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties."'... [A] healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.") (internal citations omitted);
42. see also FERC v. Mississippi, 456 U.S. 742, 790 (1982) (O'Connor, J., dissenting) ("[O]ur federal system provides a salutary check on governmental power.").
43. See, e.g., Rapaczynski, supra note 16, at 395-408.
44. 501 U.S. at 458.
45. FERC v. Mississippi, 456 U.S. at 789 (O'Connor, J., dissenting) (discussing 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 181 (H. Reeve trans., 1961)).
46. See, e.g., COOTER, supra note 14, at 129-30 (analyzing the circumstances in which mobile citizens contribute to efficiency in the delivery of local public goods);
47. Richard A. Epstein, Exit Rights Under Federalism, 55 LAW & CONTEMP. PROBS. 147, 149 (1992) (arguing for competition among states);
48. Robert P. Inman & Daniel L. Rubinfeld, The Political Economy of Federalism, in PERSPECTIVES ON PUBLIC CHOICE (Dennis C. Mueller ed., 1997) (providing necessary and sufficient. conditions for the existence of an efficient allocation of citizens across jurisdictions);
49. Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956) (providing the first formulation of the mobility problem).
50. But see Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 387-88 (1997) ("[W]hen moves occur, they tend to be for reasons largely unrelated to government policy decisions: We move because our work takes us elsewhere, or because of marriage or some other personal need, or perhaps because of climate and health. Thus, mobility may be overstated and poorly understood, and yet it is central to economic theories of federalism.").
51. 501 U.S. at 458.
52. See generally ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970).
53. See, e.g., Gregory, 501 U.S. at 458 ("This federalist structure of joint sovereigns... assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society....").
54. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (holding that the execution of persons who were under eighteen at the time they committed their capital crimes is prohibited by the Eighth and Fourteenth Amendments);
55. Lawrence v. Texas, 539 U.S. 558 (2003) (holding that a Texas law making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause of the Fourteenth Amendment);
56. Atkins v. Virginia, 536 U.S. 304 (2002) (holding that that the execution of mentally retarded persons is prohibited by the Eighth and Fourteenth Amendments);
57. Planned Parenthood v. Casey, 505 U.S. 833 (1992)
58. (reaffirming the core of the constitutional right to abortion articulated in Roe v. Wade, 410 U.S. 113 (1973)).
59. See, e.g., Jim Rutenberg, Bush Calls for an Amendment Banning Same-Sex Nuptials, N.Y. TIMES, June 4, 2006, § 1, at 30.
60. Recent calls for a constitutional ban on gay marriage are best understood in light of the Court's decision in Lawrence, see supra note 28,
61. where the Court dramatically overruled Bowers v. Hardwick, 478 U.S. 186 (1986),
62. and announced a right of sexual privacy in the home that extends to homosexuals. The Court appeared ambivalent about whether the right sounded in liberty or equality, see 539 U.S. at 575,
63. avoided the language of fundamental rights or strict scrutiny, id. at 578,
64. and suggested that the issue of gay marriage was distinguishable without explaining why or how, id.
65. If the Court followed to its logical conclusion its defense of the dignity of intimate homosexual relationships and the state's lack of authority ta demean homosexuals, id. at 560, 567, 575, 578, prohibitions of gay marriage would almost certainly violate equal protection.
66. Yet the Court explicitly avoided such a conclusion, id. at 578, leaving this area of constitutional law in a state of ambiguity and uncertainty.
67. See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006) (rejecting the Attorney General's position that the federal Controlled Substances Act allowed him to forbid doctors' prescribing federally regulated drugs for use in physician-assisted suicide under state law permitting the practice).
68. See, e.g., Gregory, 501 U.S. at 458 ("This federalist structure of joint sovereigns... allows for more innovation and experimentation in government....");
69. FERC v. Mississippi, 456 U.S. 742, 788-89 (O'Connor, J., dissenting) ("Courts and commentators frequently have recognized that the 50 States serve as laboratories for the development of new social, economic, and political ideas. This state innovation is no judicial myth.") (footnotes omitted).
70. But see Rapaczynski, supra note 16, at 408-14 (criticizing the experimentation rationale for federalism).
71. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
72. Of course, value conflict could also be implicated in this example. Communities in certain Parts of the country might trade off liberty and safety differently from people in other parts of the country. Yet every region of the nation would benefit from sound empirical evidence that clarifies what the actual tradeoffs are.
73. See generally B. Peter Pashigan, Environmental Protection: Whose Interests are Being Protected?, 23 ECON. INQUIRY 551, 562-70 (1985) (analyzing votes on critical Clean Air Act amendments and verifying that Rust Belt legislators voted to nationalize these rules);
74. see also Robert Glicksman & Christopher H. Schroeder, EPA and the Courts: Twenty Years of Law and Politics, 54 LAW & CONTENT. PROBS. 249, 285 (1991) (observing that "when differential geographical benefits are at stake, congressional voting patterns fall out along remarkably congruent geographical lines, suggesting that congresspeople are aware of the legislation's geographic implications, and that they vote consistently with the theory of pessimistic pluralism").
75. The term "federalism" may be employed not in the sense of protecting state control (which is how it is used here), but in the distinct normative sense of achieving the optimal vertical division of authority between the federal government and the states. See supra note 7 and accompanying text (flagging this distinction). When federalism is understood in this distinct sense, the foregoing discussion of the values of federalism is incomplete. For example, federalism so conceived may require uniformity in certain situations, and preemptive federal action may be needed to achieve it. An uncontroversial example is a national public good like military defense.
76. It is possible that maintaining the autonomy of subnational states could undermine federalism values in certain situations. For instance, federal regulation might advance accountability to a greater extent than would state regulation if citizens were more attuned to the legislative activity of their national representatives than to the work of their state ones. If it could be demonstrated systematically that nationalization advances federalism values to a greater extent than does maintaining the autonomy of subnational states, then the proffered connection between subnational state control and federalism values would dissolve. Most defenders of federalism values, however, are unlikely to conclude that the values commonly associated with federalism would be better advanced without federalism than with it. For recent discussions of federalism values, see STEPHEN G. BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 56-65 (2005);
77. DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE (1995);
78. Friedman, supra note 24;
79. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 U.C.L.A. L. REV. 903 (1994);
80. Siegel, supra note 6, at 1648-51.
81. For an overview of the normative federalism debate in American constitutional law and citations to the literature, see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 109-12 (2d ed. 2005).
82. Swaine, supra note 4, at 1501.
83. Id.
84. Even when the federal government delegates power that it would otherwise exercise, there is a distinct sense in which international delegations centralize, as opposed to diffuse, political power. After all, such delegations displace the independent choices of several or even many nations. Accordingly, international delegations diffuse and centralize at the same time.
85. See supra note 20 (quoting Justice O'Connor), To be sure, power diffusion constitutes an advantage that a federal system enjoys over a regime of nationally managed decentralization.
86. See Rubin & Feeley, supra note 36, at 927 (characterizing "federalism's role in diffusing governmental power" as an "important argument[] that genuinely support[sc] the basic principle of federalism"). But because the federal govermnent does not tend to engage in significant decentralization, see infra note 73, the force of this argument is limited.
87. Accordingly, any empirical research on the effects of international delegations on the values of federalism should avoid selection bias by thinking through alternative states of the world. See infra note 91 (discussing issues of research design). The most important alternative counterfactual (besides subnational control and supranational control) is control by the national government.
88. This includes tyranny prevention for the reasons stated in the text following note 39.
89. The dormant Commerce Clause is the constitutional principle that state and local laws are invalid if they place an undue burden on interstate commerce, unless the state or local government is acting with congressional approval or as a market participant. For a recent explication of the doctrine, see Granholm v. Heald, 544 U.S. 460, 472-73 (2005).
90. See, e.g., Western & Southern Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 655 (1981) (holding that "the McCarran-Ferguson Act removes entirely any Commerce Clause restriction upon California's power to tax the insurance business").
91. See, e.g., Barry Friedman, Federalism's Future in a Global Village, 47 VAND. L. REV. 1441, 1451-52 (1994) (discussing the international pressures for harmonization of the insurance industry).
92. See infra notes 48-52 and accompanying text (discussing the participation, responsiveness, and accountability problems that characterize international bodies).
93. That said, the United States often enjoys considerable influence over the choices of leadership that are important to the United States.
94. See, e.g., Jose E. Alvarez, The New Treaty Makers, 25 B.C. INT'L & COMP. L. REV. 213, 223 (2002) ("Structural aspects of [international organizationsc], including provisions for access to documents and for observer or other forms of non-voting status, have... provided entry points for NGOs' growing participation in various forms of interstate diplomacy, including treaty making.").
95. See, e.g., Knut Dormann & Louis Maresca, The Role of the Red Cross in the Development of International Humanitarian Law: The International Committee of the Red Cross and Its Contribution to the Development of International Humanitarian Law in Specialized Instruments, 5 CHI. J. INT'L L. 217, 220, 222-23, 226, 229 (2004).
96. See, e.g., Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 MICH. L. REV. 167, 170-84 (1999) (discussing the influence of small interest groups on international institutions).
97. See, e.g., Friedman, supra note 45, at 1475-79; BRADLEY & GOLDSMITH, supra note 3, at 408 (citing some of the literature); Robert Post, The Challenge of Globalization to American Public Law Scholarship, 2 THEOR. INQ. IN L. 1, 6 (2001) "EU law is not democratically accountable in any obvious way. Although EU regulations purport to embody 'treaties' grounded in national consent, the unreality of this perspective is now commonly acknowledged; the notorious 'democratic deficit' of the EU has become a cliché.").
98. Swaine, supra note 4, at 1601-02 (quoting David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697, 1699-1700 (2003); see also Young, supra note 8, at 542 ("The American people expect that certain decisions affecting them will be made through specified constitutional processes by people who are accountable to them."). Cf. Post, supra note 51, at 10-11 ("Constitutional theory stresses the question of constitutional authorship. All constitutional theorists address directly tht issue of democratic legitimation either through the specific will of an articulate demos or through judicial responsiveness to a national ethos, The form of thinking that underlies constitutional theory thus renders the new international legal institutions anomalous and opaque." (footnote omitted)).
99. See, e.g., Swaine, supra note 4, at 1570-71; Friedman, supra note 45, at 1453-62.
100. Young, supra note 8, at 538.
101. This may be a good thing or a bad thing, depending on one's view of the value commitments that the statewide majority wants to express.
102. The European Court of Human Rights (ECHR) recently provided a good illustration of delegations implicating divisive issues of individual rights. On March 20, 2007, in the case of Tysiac v. Poland, the ECHR concluded that Poland had violated the right of privacy in the European Convention on Human Rights by failing to provide an abortion to a woman whose pregnancy exacerbated her vision problems (severe myopia) to the point of blindness. Available at http://www.echr.coe.int (last visited Feb. 1, 2008) (follow "Case Law" hyperlink; search for "tysiac," then follow "Case of Tysiac v. Poland" hyperlink).
103. "This ruling has set off a firestorm of controversy in staunchly Catholic Poland, where abortion is illegal under almost all circumstances." Americans. for Informed Democracy, The ECtHR, Poland, and Abortion, Mar. 22, 2007, http://aidemocracy.typepad.com/ interdependent/2007/03/the-ecthr-polan.html (last visited Mar. 24, 2007).
104. For example, the issue of homosexual sodomy pitted the federal government of Australia against the State of Tasmania. Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994), available at http://www1.umn.edu/humanrts/undocs/html/ vws488.htm (last visited Feb. 1, 2008).
105. In Toonen, the United Nations Human Rights Committee held that laws criminalizing homosexual sodomy in Tasmania violated the rights of privacy and nondiscrimination secured by the International Covenant of Civil and Political Rights. The Australian Parliament incorporated the decision into national law by invoking the "international law override" clause in the Australian Constitution and prohibiting the prosecution of consensual homosexual conduct in private. Some nations use such an override to mediate the potential conflict between international delegations and federalism concerns.
106. For discussion of the Toonen case and its impact, see Katharine Gelber, Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case, 45 AUSTL. J. POL. & HIST. 330 (1999);
107. Laurence Helfer & Alice Miller, Sexual Orientation and Human Rights: Toward a United States and Transnational Jurisprudence, 9 HARV. HUM. RTS. J. 61, 62-77 (1996).
108. See, e.g., Mark Warren, Death, Dissent and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations, 13 WM & MARY BILL RTS. J. 309, 311 (2004) ("In October 2003, the United States was reminded once again that its intractable position on capital punishment had become intolerable to the forty-five-nation Council of Europe. The United States is now at risk of losing its observer status in the highly influential organization because of its failure to take steps toward a moratorium on all executions." (footnotes omitted));
109. Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 DUKE L.J. 485, 487 (2002) ("There is substantial and growing international pressure on the United States to end or curtail its use of the death penalty. Most European nations, have abolished the death penalty, and the European Union has become increasingly vocal in its criticism of the U.S. practice. For the last several years, the United Nations (UN) Commission on Human Rights has adopted resolutions calling upon nations to impose a moratorium on the death penalty, Many nations decline to extradite suspects to the United States if the suspects will face the death penalty. And amicus curiae filings by international organizations in U.S. death penalty cases are now becoming routine.");
110. see also European Union, The EU's Human Rights and Democratisation Policy: Abolition of the Death Penalty, http://ec.europa.eu/comm/ external_relations/humang̊hts/adp/index.htm (last visited Feb. 1, 2008) ("The European Union campaigns towards the universal abolition of the death penalty. This stance is rooted in the belief in the inherent dignity of all human beings and the inviolability of the human person, regardless of the crime committed.").
111. To be clear, there would also be substantial costs. For example, one way to engage in beneficial price discrimination with therapeutic drugs in poor countries is to disallow patents in those countries that is, to allow generic drugs to flourish there,'but not in developed countries.
112. See, e.g., COOTER, supra note 14, at 107 ("Assign power over public goods to the smallest unit of government that internalizes the effects of its exercise.").
113. Cf. Friedman, supra note. 45, at 1447 ("This process of harmonization [associatect with globalization] will have an important impact on American federalism. In part, non-uniformity is inherent in the idea of American federalism - the notion that fifty different states and numerous local governments can go their own way in developing regulatory frameworks."); id. at 1460 ("There are forces at work bringing the world closer together, but those very same forces demand greater uniformity and coordination of regulation. The result is a narrowing of the state regulatory sphere.").
114. See Swaine, supra note 4, at 1613 (referencing "the headaches that state governments posed for reaching, and abiding by, international agreements" (footnote omitted));
115. see also MICHELLE SAGER, ONE VOICE OR MANY? FEDERALISM AND INTERNATIONAL TRADE (2002) (providing an account of the conflicts between the federal government and the states over NAFTA).
116. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 941 (2005) ("[T]here is no logical relationship between the policy interests of state citizens and the amount of regulation flowing from the federal government or left to the states. Federal regulation and spending obviously can, and often does, benefit state-level constituencies.") (footnotes omitted).
117. Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 797 (1995) ("[Federalism] is not always of value to state and local officials.").
118. For a fuller discussion than is provided in the following pages, see generally Siegel, supra note 6.
119. The Tenth Amendment states that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. CONST. amend. X. The text of the amendment makes explicit what is implicit in both the enumeration of powers allocated to Congress in Article I, § 8 and the historic distinction between a national government of limited powers and state governments of plenary powers. See, e.g., New York v. United States, 505 U.S. 144, 156-57 (1992) ("The Tenth Amendment... restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which ... is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.").
120. New York v. United States, 505 U.S. 144 (holding that the "take title" provision of the Low Level Radioactive Waste Policy Amendments Act of 1985 constitutes unconstitutional compulsion and commandeering of the governmental capacity of state governments).
121. Printz v. United States, 521 U.S. 898 (1997) (relying on a Tenth Amendment anticommandeering rationale in holding unconstitutional certain interim provisions of the Brady Handgun Violence Prevention Act).
122. New York v. United States, 505 U.S. at 168-69 (citation omitted).
123. See BRADLEY & GOLDSMITH, supra note 3, at 400 (discussing the Court's accountability concerns).
124. For example, it is blackletter law that the Constitution allows racial classifications if the governmental interest is sufficiently weighty. For a recent instance in which the Court reiterated that racial classifications trigger strict scrutiny, as opposed to a categorical bar, see Johnson v. California, 543 U.S. 499, 505 (2005).
125. See generally Siegel, supra note 6.
126. Preemption is the constitutional principle derived from the Supremacy Clause, U.S. CONST. art. VI, providing that if a conflict exists between valid federal law and state or local laws, federal law controls and the state or local laws are invalidated on the ground that federal law is supreme. See, e.g., Gade v. Nat'l Solid Waste Mgmt. Ass'n,
127. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824) (Federal law trumps state laws that "interfere with, or are contrary to the laws of Congress," because "[i]n every such case, the act of Congress... is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.").
128. In response, one could invoke Rubin and Feeley's distinction between federalism as a constitutional requirement and the managerial concept of decentralization. See Rubin & Feeley, supra note 36, at 910 ("Decentralization is a managerial concept; it refers to the delegation of centralized authority to subordinate units of either a geographic or a functional character.").
129. Even in a world without judicially enforced federalism, they argue, Congress and federal agencies could design experiments and try different approaches to problems in different regions of the nation. Id. at 923-26. Similarly, the federal government could legislate in such a way as to allow for regional participation, competition, expressions of value, and delivery of local public goods. (Tyranny prevention is another matter because the central authority decides how much decentralization takes place in a world without federalism.)
130. Professors Rubin and Feeley make some powerful political points and raise an intriguing theoretical possibility. But experience seems to show (it is difficult to establish empirically) that regional experimentation and encouragement of participation, competition, diversity, and local efficiency are not what tend to happen when Congress regulates. See, e.g., Swaine, supra note 4, at 1582 ("[I]t seems doubtful that the national government has the right incentives to decentralize when it should." (footnote omitted));
131. see also id. at 1581-83 (discussing the literature);
132. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2217 (1998) ("Rubin and Feeley's analysis fails to appreciate the degree to which decentralization in the United States is a function of, and bound up with, federalism - that is, the existence of the states as quasi-sovereign governmental entities deriving their power not from delegations by a national government but from elections by the people of each state."). This is not to say, however, that Congress could not choose to do some significant decentralizing. Indeed, decentralization is a concept that is analytically connected to a national perspective.
133. See, e.g., Daniel Halberstam, Of Power and Responsibility: The Political Morality of Federal Systems, 90 VA. L. REV. 731, 800-01 (2004) (arguing that the Tenth Amendment decisions "stand in striking contrast to the analogous doctrines of the European Court of Justice," and exploring some of the "reasons for welcoming 'commandeering' in the European Union but not in the United States").
134. Halberstam, supra note 9, at 214-15 ("In the European Union, by contrast [to the United Statesc], the subject of concern is not Union action that 'commandeers' Member State legislative or administrative bodies, but EU legislative activity that has direct effect in the legal systems of the Member States. Member States tend not to welcome Community regulations, which have immediate legal force for individuals within a Member State, and instead prefer that the Community pass directives, which command a Member State to regulate in a particular area and thus require further Member State legislative action to become fully effective within that State. So, too, 'commandeering' is a basic feature of German federalism....") (footnote omitted);
135. see also COOTER, supra note 14, at 236 (discussing the difference between directives and regulations in the law of the European Union).
136. Technically, both directives and regulations qualify as forms of "commandeering" under Printz because most regulations in the European Union must be enforced by member-state institutions. See, e.g., Halberstam, supra note 9, at 213. Note, moreover, that even if one were to dispute Professor Halberstam's empirical judgment about member-state preferences, the key conceptual point would remain that both directives and regulations are legal in the European Union.
137. Printz v. United States, 521 U.S. 898, 976-77 (1997) (Breyer, J., dissenting).
138. Id. at 921, n.11.
139. See supra notes 51-54 and accompanying text.
140. See BRADLEY & GOLDSMITH, supra note 3, at 408 (querying whether international delegations "simply move power even further away from U.S. states and localities").
141. See supra notes 39-40 and accompanying text.
142. This inquiry should not be read as denying the obvious - namely, that international delegations vary widely along several dimensions in terms of their impact on the regulatory autonomy of subnational states. Bradley and Kelley render the cost question more context-sensitive and tractable by fashioning a framework for assessing variations in the extent to which particular international delegations compromise the regulatory autonomy of nations. See generally Bradley & Kelley, supra note 1. Their four-factor typology - issue area, type of authority, legal effect, and autonomy of the international body - is also useful in tracing out the impact of international delegations on the values of federalism (when the authority delegated would otherwise be exercised by the subnational states). For example, the impact is greater when the issue area is a traditional (though no longer exclusive) subject of state regulation, such as education, criminal law enforcement, family law, taxation, or alcohol, than when the issue concerns, say, interstate or international commerce or matters of national security.
143. Cf., e.g., Friedman, supra note 45, at 1460-61 ("Many of the regulatory areas subject to internationalization... increasingly touch upon the central role of the states, protecting the health and safety and welfare of their citizens."). Moreover, legislative delegations compromise subnational state autonomy to a greater extent than do information-gathering and reporting functions. In addition, international delegations with low legal effect obviously compromise federalism values to a lesser extent than do delegations with high legal effect. Finally, a less (as opposed to more) autonomous international body would likely be more compatible with the values of federalism.
144. For a discussion, see generally Bradley & Kelley, supra note 1.
145. See supra notes 10-12 and accompanying text.
146. See, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner, 76 N.Y.U. L. REV. 1383, 1387 (2001) ("The proper lesson of Lochner instructs us that, even where it is possible to identify a jurisprudential basis for judicial decisions, if those familiar with the Court's decisions do not believe those decisions to be socially correct, the work of judges will be seen as illegitimate. There will be attacks on judges and, ultimately, on the institution of judicial review.
147. Even in the face of established precedent, law itself will come to be seen as nothing but politics.") (referencing Lochner v. New York, 198 U.S. 45 (1905)).
148. I cannot adequately defend these claims here. For discussions, see generally Robert C. Post & Neil S. Siegel, Theorizing the Law/ Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CAL. L. REV. 1473 (2007)
149. Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. (forthcoming 2008);
150. Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 CONST. COMMENT. (forthcoming 2008).
151. The availability of a veto reduces the impact of what would otherwise be a relatively extraordinary delegation of legislative and executive authority to the Security Council. The ability to exercise a veto, however, ameliorates concerns about the autonomy costs of international delegations to a lesser extent than might at first appear. Nations may want to avoid tempting other countries to wield their vetoes, and the force of a veto may be constrained by the default condition. See Swaine, supra note 4, at 1538-40 (discussing these matters).
152. The federalism costs and benefits of international delegations are relevant not only, or even primarily, to judicial assessments of their constitutionality. Given the present pervasiveness of international delegations and the tradition of judicial deference to Congress and the President in the realm of international affairs, see, e.g., Friedman, supra note 45, at 1466-71, it may be unrealistic to expect even a relatively federalist Supreme Court to intervene in this arena. Regardless of whether the Court continues to stay its hand, the various costs and benefits should be of abiding concern to the political branches themselves. After all, it is not clear on what other basis they ought to act or decline to act.
153. Cf., e.g., Duncan B. Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 S. CAL. L. REV. 1327, 1331, 1333 (2006) (doubting that the Court will resolve the nationalist-new federalist debate over the scope of the treaty power and encouraging the interpretive community "to actively engage in a normative dialogue over how the executive should carry the federalism banner and the larger implications of its doing so for U.S. foreign affairs").
154. During my transition from clerking to teaching, I was struck by the radically different ways in which judges and academics tend to regard new and creative legal arguments. For example, suggesting with enthusiasm in a petition for certiorari that the main question presented is "novel" constitutes a good way to defeat one's own claim to constitutional attention - and inexperienced advocates before the Supreme Court sometimes do just that. In the legal academy, by contrast, the coin of the realm seems to be arguments that are novel, provocative, and counterintuitive. There may be good reasons for this divergence; different institutions often perform different core functions. But the magnitude of this difference in perspective is arresting, particularly if one believes that good scholarship can help judges and elected officials to make better decisions. That said, this is certainly not the only function of the academy, or even the most important one. In the area of constitutional scholarship, for example, meta-theoretical work is most prestigious, and it has proven deeply illuminating, even if many judges might disagree. For a crisp account of the transformation in "[t]he criteria and purposes of good legal scholarship" during the late 1970s and 1980s, see Post, supra note 51, at 10.
155. See, e.g., Thomas M. Franck, Can the United States Delegate Aspects of Sovereignty to International Regimes?, in DELEGATING STATE POWERS: THE EFFECT OF TREATY REGIMES ON DEMOCRACY AND SOVEREIGNTY 1, 3 (Thomas M. Franck ed., 2000) ("America's decentralized and divided constitutional scheme does not fit easily the exigencies of the growing system of supranational regimes.").
156. Cf. Friedman, supra note 45, at 1472 ("Turning first to substantive regulatory authority, I cannot help but predict that globalization will be the cause of a quite substantial curtailment of state authority.").
157. Barbara Koremenos makes the fascinating empirical finding that international delegations are less common when the parties to an agreement are democracies. See Barbara Koremenos, When, What, and Why do States Choose to Delegate?, 71 LAW & CONTEMP. PROBS. 151 (Winter 2008). It would be illuminating to investigate empirically why this might be the case. One possibility is that democracies tend to worry more than nondemocracies about the democratic values that international delegations can compromise - for example, participation, accountability, and responsiveness. More generally, it would be useful to research the extent to which the existence of a federal system (or a certain kind of federal system) within a nation correlates with differences in the nature and extent of international delegations.
158. For instance, the federalism impact of a decision to delegate internationally depends in part on the issue area. See supra note 82 (providing examples). Certain matters, such as military alliances, have few implications for state policymaking. By studying the delegation provisions of international agreements, as Koremenos does, one might be able to develop coding rules for a variable that captures the extent to which the agreements implicate overarching national interests (so that the states do not have different preferences over policy), or instead concern issues regarding which the states want to differentiate their policies. It may be possible to code agreements (albeit roughly) for such things. A plausible assumption is that when the variance in subnational state preferences over time is small and their interests broadly coincide, the detrimental impact of an international delegation on the values of federalism is reduced. If the variance is high or state interests differ, then the effect can be substantial. If one understood the configuration of these interests, one could compare them to the provisions of international agreements to determine whether nations with federal systems are less willing to participate in agreements that regulate issues of high variance and conflicting interests among the subnational states.