Medellín and the future of international delegation

Yale Law Journal

Volumn 118, Issue 8, 2009, Pages 1712-1760

  Mcginnis, John O ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 70349662309     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (237)

1. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 453-483 (1987) (describing some of the changes in legal doctrine that attempted to promote accountability and maintain freedom from interest group control through the exercise of control over administrative agencies by all three branches of government - executive, judicial, and legislative).
2. For a general discussion of "doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies," see Matthew C. Stephenson, The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs, 118 YALE L.J. 2, 4 (2008).
3. 128 S. Ct. 1346 (2008).
4. See infra Section III.B.
5. Id.
6. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427, 434 (1988);
7. see also Oona A. Hathaway, International Delegation and State Sovereignty, LAW & CONTEMP. PROBS., Winter 2008, at 115, 117-119 (discussing the nature of the two-level game in the context of international delegations).
8. See Eric A. Posner & Alan O. Sykes, Optimal War and Jus Ad Bellum, 93 GEO. L.J. 993,1013 (2005) ("The conventional justification for public international law is the existence of important international externalities when decisions are made unilaterally.").
9. See Lawrence Summers, A Strategy To Promote Healthy Globalisation, Financial Times Economists' Forum, May 5, 2008, http://blogs.ft.com/ economistsforum/2008/05/astrategy-to-promote-healthy-globalisation.
10. See Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 90 (1994).
11. Another way of putting this point is that it is efficient in some circumstances for international agreements to be incomplete contracts. See John O. McGinnis, The Appropriate Hierarchy of Global Multilateralism and Customary International Law: The Example of the WTO, 44 VA. J. INT'L L. 229, 251-252 (2003).
12. See, e.g., Curtis A. Bradley & Judith G. Kelley, The Concept of International Delegation, LAW & CONTEMP. PROBS., Winter 2008, at 1.
13. Id. at 6-9.
14. Id. at 10-17.
15. Some have questioned the relevance of this distinction on the theory that international law obligations can affect the behavior of the United States. See, e.g., Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492, 1542 (2004). It is, of course, true that international obligations can have effects in the United States. But such an effect does not distinguish international obligations from other actions that do not have status under U.S. law. For instance, many other international and foreign actions also affect the United States and sometimes those acts are even taken in response to the actions of the United States or its citizens. In contrast, there is a clear distinction between acts that create obligations under U.S. law and those that do not. Moreover, the United States has a dualist tradition
16. see MARIC W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 85 (4th ed. 2003), and it simply does not view international legal obligations as having the same legal force as domestic law within our judicial system.
17. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993).
18. NAFTA Implementation Act, Pub. L. No.103-182, 107 Stat. 2057 (1993).
19. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction art. 9, opened for signature Jan. 13, 1993, S. TREATY Doc. No.21, 1974 U.N.T.S. 45, 343-344
20. The treaty was ratified on April 24, 1997. See Resolution of Ratification for the Chemical Weapons Convention, S. Res. 75, 105th Cong., 143 CONG. REC. 6247 (1997) (enacted).
21. In an interesting recent essay, Andrew Guzman and Jennifer Landsidle suggest that international delegations are not very important. See Andrew T. Guzman & Jennifer Landsidle, The Myth of International Delegation, 96 CAL. L. REV. 1693 (2008). Oddly, the authors do not mention one particular international delegation in which the rights of Americans are determined today - the NAFTA binational panels. As my later analysis suggests, these panels may well be unconstitutional.
22. See infra Subsections III.C.i, III.C.2.
23. Moreover, three Justices on the Medellín Court believed that the delegation at issue in Medellín gave the ICJ's judgment "domestic legal effect." 128 S. Ct. 1346, 1383 (2008) (Breyer, J., dissenting). Guzman and Landsidle are generally correct, however, that international delegations, particularly of the binding domestic kind, do not yet bulk large in our legal order. But that is hardly a reason not to engage in serious analysis of their potential problems, particularly given that there is going to be more pressure for international delegations in the future for reasons that I discuss and with which these authors appear to sympathize. See Guzman & Landsidle, supra, at 1694.
24. See Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1255-59 (1989) (discussing the way that the Supreme Court made the administrative state more democratic through such doctrines as standing, reviewability, and requirements of rational decisionmaking) ;
25. see also David P. Currie, The Constitution in the Supreme Court: The New Deal, 1931-1940, 54 U. CHI. L. REV. 504, 513-16 (1987) (describing how the Court relaxed obstacles to the growth of the administrative state while retaining a role for judicial review of administrative action).
26. See Thomas W. Merrill, Rethinking Article I, Section i: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2141-2144 (2004).
27. See John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 STAN. L. REV. 1175, 1212-1214 (2007) (using polling data to demonstrate Americans' comparative ignorance about international matters).
28. See, e.g., Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 95-99 (1985).
29. For a collection and discussion of these scholars' work, see Merrill, supra note 21, at 2141.
30. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 52-53, 59-60 (1974) (suggesting that responsibility for legislation is quite diffuse except for locally focused legislation like pork barrel spending).
31. Obviously the degree to which Congress can constitutionally insulate agencies from complete supervision of the President is quite hotly contested, but the better view-both as a policy matter and as a matter of the Constitution's original meaning-is that the President must have substantial supervisory authority. For the originalist case, see Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 610-11 (1994).
32. For the normative policy case, see Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995).
33. In an interesting article, Edward Swaine acknowledges problems of democratic deficit and agency costs caused by international delegations, but argues that they are nevertheless constitutionally redeemed because they advance the constitutional objective of diffusing power by constraining the federal government. See Swaine, supra note 14, at 1585-92.
34. Setting aside whether it is permissible to read the Constitution's objectives at such a level of generality, I am skeptical of these claims as a general matter. In the usual case, international governance concentrates power by eliminating jurisdictional competition. See Neil S. Siegel, International Delegations and the Values of Federalism, LAW & CONTEMP. PROBS., Winter 2008, at 93, 102 (critiquing Swaine's thesis on these and other grounds). It is thus odd to see international delegation as performing the same functions as federalism, the hallmark of which is jurisdictional competition. Second, given the influence of nondemocratic states on international law and institutions and the remoteness of those institutions from government control, their decision-making process is likely to be seriously flawed.
35. See McGinnis & Somin, supra note 22, at 1196-1217;
36. Siegel, supra, at 103 (noting the lack of responsiveness in international systems). The American constitutional system does not seek diffusion of power, whatever the cost in faulty decisionmaking.
37. Cf. Merrill, supra note 21, at 2143-44 (describing this argument). Merrill disagrees that legislatures are harder to capture than domestic agencies, because of the presence of structural checks. Id. at 2144. I argue below that these checks are not present in the international arena.
38. See infra notes 35-43 and accompanying text. It may well be that the problems of democratic accountability and agency costs are related, however. Delegations have been well analyzed as a device that helps Congress avoid accountability and reward special interests at the expense of the public.
39. See Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 CORNELL L. REV. 1 (1982). Congress's electoral incentives thus do not always preserve democratic accountability or constrain nontransparent interest group exactions. This fact provides a policy justification for creating constitutional constraints on legislative delegation.
40. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2354 (2001) (noting that agencies may respond to interest group lobbying rather than expertise).
41. See William A. Niskanen, Bureaucrats and Politicians, 18 J.L. &ECON. 617, 618-624 (1975).
42. Cf. McGinnis & Somin, supra note 22, at 1204 (discussing international courts' interest in expanding the scope of international law).
43. See Merrill, supra note 21, at 2144 (summarizing the literature specifying constraints on the behavior of domestic agencies).
44. See JESSICA KORN, THE POWER OF SEPARATION: AMERICAN CONSTITUTIONALISM AND THE MYTH OF THE LEGISLATIVE VETO 10 (1996) (noting the strength of legislative oversight).
45. See Eric A. Posner, Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective, 68 U. CHI. L. REV. 1137, 1176 n.101 (2001).
46. See Louis L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 320-394 (1965) (discussing the presumption in favor of judicial review of administrative action).
47. Eric Posner and Adrian Vermeule argue that domestic delegations pose no serious problems because, among other things, Congress can override agency actions and the public can prevent transfers to interest groups to the extent they can do so in ordinary legislation. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1746-52 (2002).
48. Edward Swaine has argued that they cursorily and "too readily" extend their analysis to international delegations. See Swaine, supra note 14, at 1558 & n.280.
49. Cf. Richard J. Pierce, Jr., Political Accountability and Delegated Power: A Response to Professor Lowi, 36 AM. U. L. REV. 391, 409 (1987) (noting that as presidential control over decisions becomes more attenuated, agency costs rise).
50. See T. Alexander Aleinikoff, Thinking Outside the Sovereignty Box: Transnational Law and the U.S. Constitution, 82 TEX. L. REV. 1989, 2002 (2004) ("In the case of domestic delegationseven those that license a fair degree of autonomy for administrative agencies-there are significant checks on agency behavior in the form of appropriations, oversight, amending legislation, and publicity. These checks are obviously weaker at the international level particularly the ability of the United States to overturn decisions of transnational bodies, which would require the amendment of a treaty.").
51. See Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. PA. L. REV. 103, 113 (2008) ("[O]nce a treaty comes into effect, the burden of overcoming legislative inertia to supersede can be substantial because repealing a measure is always more difficult than enacting it in the first place.").
52. See Harold H. Bruff, Legislative Formality, Administrative Rationality, 63 TEX. L. REV. 207, 232 (1984).
53. See E. Donald Elliott, INS v. Chadha: The Administrative Constitution, the Constitution, and the Legislative Veto, 1983 SUP. CT. REV. 125, 150-160 (describing the legislative veto and other modes of legislative control).
54. See Paul B. Stephan, Accountability and International Lawmaking: Rules, Rents and Legitimacy, 17 Nw. J. INT'L L. &Bus. 681, 682-683 (1997) (discussing the limited options of legislatures with respect to international matters).
55. For a discussion of the controversy over whether the President enjoys this power, see Oona A. Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236, 1323-1325 (2008).
56. The above analysis considers democratic accountability, agency capture and policy drift from the perspective of the United States, because the doctrinal issue to be considered here is authorizing delegations that have binding effect in U.S. law. It should be noted, however, that the problems of democratic accountability and policy drift do not look much different if viewed from a more universal welfarist rather than an American perspective. First, consider democratic accountability. Democratic governments other than the United States are likely to face similar problems: their ordinary structure for monitoring and controlling domestic agents will not be applicable. Moreover, in the international realm, wholly nondemocratic nations can wield influence on the appointment and actions of international agents, exacerbating the democratic deficit. See McGinnis & Somin, supra note 22, at 1204-05.
57. The problem of policy drift from an international rather than American perspective is more complicated, but on balance still is not favorable to international delegations. Once again governments individually have greater problems in controlling policy drift because they individually enjoy less supervision of international agents. Second, even collectively governments face the well-known difficulty that multiple principals have more difficulty controlling an agent than a single principal. See Swaine, supra note 14, at 1560-61 (discussing how the fact of multiple principals may inhibit the policing of delegations).
58. One possible counterargument is that international agents are less likely to be dominated by a particular interest group, because their appointment will reflect very disparate interest groups that dominate nations differently situated. This point can be seen as a global version of Madison's argument for the large republic in The Federalist Papers. See THE FEDERALIST NO.10 (James Madison). The multiplication of interests is certainly one advantage of an international as opposed to domestic delegation. Nevertheless, transnational ideological interest groups may face fewer constraints in the less transparent international arena. Indeed, the leadership of nongovernmental organizations (NGOs) may be unaccountable even to their members. See Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the "Unregulated" Marketplace, 18 CARDOZO L. REV. 957, 963 (1996).
59. Of course, even in the United States, where this distinction is widely recognized and courts are subject to the various constraints discussed below, the distinction is not always honored.
60. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64-70 (1982) (plurality opinion). The private rights/public rights distinction is ably criticized in Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 DUKE L.J. 197, 210-214
61. Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 IND. L.J. 233, 268 (1990) ;
62. see also Redish, supra note 45, at 226-227 (arguing that effective appellate review offers a way of reconciling Article I courts with the Constitution).
63. Cf. Ernest A. Young, Institutional Settlement in a Globalizing Judicial System, 54 DUKE L.J. 1143, 1208 (2005) (noting the relative lack of domestic legitimacy of international tribunals).
64. Even in the case that gives perhaps the broadest scope to Article I tribunals, the arbitrators are themselves appointed by the head of the Federal Mediation and Conciliation Service, an official who is appointed by the President and confirmed by the Senate. See Thomas v. Union Carbide Agrie. Prods. Co., 473 U.S. 568, 574 n.i (1985).
65. See Ernest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT'L L.J. 527, 538 (2003) (voicing concern about the lack of accountability of international court judges).
66. See McGinnis & Somin, supra note 22, at 1203;
67. Mark L. Movsesian, Judging International Judgments, VA. J. INT'LL. 65, 97 (2007).
68. McGinnis & Somin, supra note 22, at 1203.
69. Movsesian, supra note 50, at 97 ("[T]he ICJ Statute omits domestic political authorities from the resources it recommends that national groups consult in making nominations, referring them instead to high court judges and professors of international law.").
70. 128 S. Ct. 1346 (2008).
71. Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 LCJ. 12 (Mar. 31).
72. Medellín, 128 S. Ct. at 1355.
73. Id.
74. Id. at 1356.
75. See Memorandum from President George W. Bush on Compliance with the Decision of the International Court of Justice in Avena to the U.S. Att'y Gen. (Feb. 28, 2005) (on file with author), available at http://brownwelsh.com/ Archive/2005-03-10-Avena-compliance.pdf.
76. By direct domestic obligation, I mean one that is automatically or immediately enforceable in U.S. courts. See Carlos Manuel Vasquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 599, 651 (2008) (arguing that when a treaty is potentially enforceable in courts, non-self-execution means that the treaty is enforceable "only indirectly-that is, pursuant to implementing legislation or other appropriate action by the political branches").
77. Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, T.I.A.S. No.6820.
78. Id.
79. U.N. Charter art. 94, para. 1.
80. 128 S. Ct. 1346, 1361 (2008).
81. Id. at 1357 (internal quotation marks omitted).
82. Id. at 1363-1364 (emphasis added).
83. U.N. Charter art. 94, para. 1.
84. Medellín, 128 S. Ct. at 1359.
85. See id. at 1363, 1369; see also id. at 1381 (Breyer, J., dissenting) (noting that the treaties at issue "do not explicitly state" that ICJ decisions are to have direct effect).
86. Id. at 1360 (majority opinion).
87. Id. at 1392-1393 (Breyer, J., dissenting).
88. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §111(4) (1986) (stating that a treaty is non-self-executing "if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation"). Indeed, some have suggested that the Restatement creates a presumption in favor of self-execution. Whether the Restatement is correct as a normative matter is much disputed. I do not have space to resolve the question of what is the right standard for selfexecution as an original or normative matter. My point is simply to show that the Medellín Court applied a more heightened standard for self-execution than a fair reading of the doctrine suggests.
89. See, e.g., Vasquez, supra note 59, at 602 (suggesting that treaties impose a presumption of self-execution, but that presumption may be defeated if, among other reasons, the treaty "imposes an obligation that requires the exercise of nonjudicial discretion").
90. Justice Stevens clearly believes that the treaty is not self-executing, while disagreeing with the Court's "presumption against self-execution." Medellín, 128 S. Ct. at 1372-1373 (Stevens, J., concurring).
91. See Merrill, supra note 21, at 2098-2099
92. Id at 2099.
93. Id.
94. Id.
95. See John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 199 (1998) (arguing against interpreting ambiguous statutes as delegations, given that Congress knows how to delegate expressly).
96. For instance, United States v. Mead Corp., 533 U.S. 218 (2001), represents a step in this direction by denying the U.S. Customs Service Chevron deference for its letter ruling, because Congress had never expressed a clear intent to give such rulings binding legal force. See id. at 239 (Scalia, J., dissenting) (complaining that "[w]hat was previously a general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce has been changed to a presumption of no such authority, which must be overcome by affirmative legislative intent").
97. Clear statement rules in this context can also protect federalism, because binding international delegations can replace state authority, as they would have in Medellín. See United States v. Bass, 404 U.S. 336, 349 (1971) ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.").
98. The Court itself makes this clear. See supra note 69 and accompanying text.
99. The Court has recognized the deployment of the nondelegation doctrine as a canon of construction. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) ("In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.").
100. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-61 (2000) (interpreting the Food, Drug, and Cosmetic Act narrowly so as not to permit the regulation of cigarettes); Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (favoring a narrow construction of a statute to avoid a broad reading that might have raised questions under the constitutional delegation doctrine).
101. See Cass R. Sunstein, Nondelegation Canons, 67 CHI. L. REV. 315 (2000);
102. see also id. at 320 (discussing problems of democratic accountability);
103. id. at 321 (discussing problems of interest group influence).
104. But see John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223 (criticizing the canon as altering the content of statutes and avoiding the constitutional question of nondelegation).
105. The Medellín Court was particularly aware that the decision to give final review authority to the ICJ could make a dispositive difference in the outcome. In Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006), the Supreme Court itself had occasion to decide the same issue as the ICJ did in Avena and came out with a contrary decision: that the Vienna Convention created no obligation for a state to give up its procedural rules to permit collateral or appellate consideration of whether a defendant was prejudiced by the failure of the government to permit him to consult with his consulate.
106. Medellín thus reflects the view of two scholars in particular, Curtis Bradley and Julian Ku, who have argued for a clear statement rule. See Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557, 1587 (2003) (arguing for a presumption that delegations "do not create enforceable [domestic] law unless and until they are implemented by Congress");
107. Julian G. Ku, International Delegations and the New World Court Order, 81 WASH. L. REV. 1, 7 (2006) (arguing that U.S. courts should employ a "super-strong clear statement" rule before concluding that international delegations have domestically binding effect).
108. Bradley briefly suggests this view oí Medellín as well. See Curtis A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties, 102 AM. J. INT'L L. 540, 547 (2008).
109. Medellín v. Texas, 128 S. Ct. 1346,1371-1372 (2008).
110. 539 U.S. 396 (2003).
111. Id. at 401-02.
112. Id. at 405-408
113. Id. at 421-427
114. The Court distinguished Garamendi and other dispute settlement cases on the view that they were based on a practice of making executive agreements and settling civil claims between American citizens and foreign nationals or governments - a practice in which Congress has acquiesced. Medellín, 128 S. Ct. at 1372. The basis for these distinctions is not entirely transparent. The fact that the President is settling a case pursuant to a treaty rather than an executive agreement would seem to strengthen his case, because other representatives of the federal government have specifically endorsed the international instrument whose interpretation he is invoking to preempt state law. It is also unclear why interfering with state property rights is so much less problematic than interfering with state criminal laws.
115. Id. at 1368.
116. If the delegation were made by a congressional-executive agreement, the decisionmakers would include both houses of Congress as well as the President.
117. See Adam Liptak, U.S. Says It Has Withdrawn from World Judicial Body, N.Y. TIMES, Mar. 10, 2005, at A16.
118. The Bush Administration had also filed a brief in Sanchez-Llamas disagreeing with the ICJ's decision. Brief for the United States as Amicus Curiae Supporting Respondents, Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) (Nos. 05-51 & 04-10566), 2006 WL 271823.
119. 505 U.S. 144, 183 (1992).
120. See Carter v. Carter Coal Co., 298 U.S. 238, 310-312 (1936) (invalidating delegation to private individuals).
121. Stephenson, supra note 2, at 40.
122. Id. at 42.
123. See John C. Yoo, The New Sovereignty and the Olà Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 CONST. COMMENT. 87, 96-97 (1998).
124. See 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, 1463-75 (1992); see also United States-Canada Free Trade Agreement: Hearing Before the S. Comm. on the Judiciary, 100th Cong. 76 (1988) (testimony of John O. McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice) (arguing on behalf of the Department of Justice that providing direct domestic effect to the decisions of binational panels on dumping cases violates the Appointments Clause).
125. See THE FEDERALIST NO. 76, at 455-58 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
126. Yoo, supra note 100, at 101-105
127. See Brief of Respondents-Intervenors at 36-45,
128. Coal. for Fair Lumber Imports Executive Comm. v. United States, 471 F.3d 1329 (D.C Cir. 2006) (No.05-1366), 2006 WL 716571.
129. Id. at 10-11.
130. One problem with the permissive model is its reliance on the claim that international agents and tribunals are acting only under international law. If this is so, how do they change the rights and duties of Americans under our domestic law? One possible explanation is to analogize the giving of direct effect to international courts' decisions to the enforcing of arbitral tribunals' or foreign courts' judgments. Private disputes are frequently adjudicated by arbitration and foreign courts and these judgments are then enforced by federal courts without complaints that the arbitrators or foreign courts were inappropriately appointed or usurped the functions of Article III tribunals. There are some salient differences between the enforcement of judgments and giving direct effect to the decisions of international agents or tribunals. For instance, judgments and arbitrations are not enforced when they are against public policy, including our own interpretations of public laws.
131. See Mark L. Movsesian, International Commercial Arbitration and International Courts, 18 DUKE J. COMP. & INT'L L. 423, 431 (2008) (discussing the public policy exception to arbitrations);
132. Movsesian, supra note 50, at 115. While in the private law context public policy exceptions are narrow and invoked rarely, that may reflect the fact that the disputes are commercial, such that the preference for private ordering cabins the role for public policy and such that common views about commerce among nations make fundamental public policy differences rare. But giving direct effect to the ICJ's decisions in such cases as Medellín contemplates the interposition of no such barrier even in an area where public policy might be thought to bulk much larger.
133. See, e.g., Margaret E. McGuinness, Medellín, Norm Portab, and the Horizontal Integration of International Human Rights, 82 NOTRE DAME L. REV. 755, 840-841 (2006).
134. See Eric Stein, International Integration and Democracy: No Love at First Sight, 95 AM. J. INT'L L. 489, 503 n.75 (2001).
135. See Mark L. Movsesian, Enforcement of WTO Rulings: An Interest Group Analysis, 32 HOFSTRA L. REV. 1, 8-10 (2003).
136. Id at 10.
137. See Andrew T. Guzman, Global Governance and the WTO, 45 HARV. INT'L L.J. 303 (2004).
138. See John O. McGinnis & Mark L. Movsesian, Against Global Governance in the WTO, 45 HARV. INT'L L.J. 353, 364 (2004).
139. This was recognized early in our republic by Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), and Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
140. See supra Section I.A.
141. Whether they must also be done expressly depends on the kind of arguments described in the administrative law model. See supra Section III.A.
142. ALEXANDER HAMILTON, The Defence No.XXXVIII (Jan. 9, 1796), reprinted in 20 THE PAPERS OF ALEXANDER HAMILTON 22, 22 (Harold C. Syretted., 1974).
143. For a fuller discussion of this point, see David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697, 1706-1721 (2003).
144. See Articles of Confederation art. I.X.
145. THE FEDERALIST NO.40 (James Madison), supra note 102, at 250 (discussing the "immediate" effect on individuals of the many provisions of the Article, particularly the ability of courts martial of the confederation to inflict the penalty of death). This point is discussed by Golove.
146. See Golove, supra note 116, at 1720 (quoting Hamilton).
147. See, e.g., S.C. CONST, art. XX (1776) (establishment of the judiciary);
148. id. art. XXV (provisions for appointment of officers).
149. My colleague, Eugene Kontorovich, has written a fascinating article showing that nineteenth-century American politicians expressed doubts about the constitutionality of mixed international tribunals in which British and American commissioners would jointly try those who violated laws against slave trading. See Eugene Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunab, 158 U. PA. L. REV. (forthcoming 2009);
150. see also Jenny S. Martinez, Antislavery Courts and the Dawn of International Human Rights Law, 117 YALE L.J. 550 (2008) (discussing mixed commissions to punish slave traders as an example of a nineteenth century international mechanism to protect international rights). I do not consider that these debates have much bearing on the original meaning, because they are too late-after most of the enacting generation had died or passed from the political scene.
151. Cf. Calabresi & Prakash, supra note 25, at 613 (setting similar limits to the scope of evidence for originalism). Second, their objections to these tribunals were not only on structural grounds, but on those of the Bill of Rights - objections that, in some cases, have merit.
152. See infra note 129. Thus, I do not believe that opposition to these tribunals is nearly as weighty as the power of the Jay Treaty precedent on purely structural issues.
153. Treaty of Amity, Commerce, and Navigation (Jay Treaty), U.S.-Gr. Brit., art. VI, Nov. 19, 1794, 8 Stat. 116. The treaty included similar commissions to arbitrate boundaries and settle claims of American citizens for illegal captures of ships and confiscation of their cargoes.
154. Id. arts. V, VII.
155. Id. art. VI.
156. See Jack N. Rakove, The Original Intention of Original Understanding, 13 CONST. COMMENT. 159, 177-178 (1996) (discussing the essays Hamilton wrote in defense of the Jay Treaty).
157. See HAMILTON, supra note 115, at 30.
158. See 5 ANNALS OF CONG. 1099 (1796) (remarks of Rep. John Page).
159. Henry Paul Monaghan sees the Jay Treaty as precedent for the constitutionality of international tribunals, regardless of whether enacted through treaty or congressional-executive agreement, because it provides powerful evidence that international tribunals addressing public rights do not violate Article III. See Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 COLUM. L. REV. 833, 869 (2007) (suggesting that reliance on the Jay Treaty precedent is at bottom reliance on a public rights exception to Article III). But one difficulty with this argument is that the most sophisticated defense against the claim that the Jay Treaty violated Article III does not discuss the intricacies of the public rights doctrine (which had not been invented), but focuses on the capaciousness and safeguards uniquely provided by the Treaty Clause.
160. Whether the treaty power permits agreements beyond the enumerated powers
161. David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075 (2000) (contending that the treaty power is not limited by Congress's enumerated powers). In my view, the supermajority ratification compensates for the lack of enumerated limits to the power. This is the position taken by the Supreme Court in Missouri v. Holland, 252 U.S. 416 (1920).
162. See Charles J. Cooper & John O. McGinnis, The Republican Congress and the Constitution in Foreign and Military Affairs, 2 COMMON SENSE 75, 83-86 (1995);
163. see also David J. Bederman, Book Review, 110 AM. J. INT'L L. 490, 494 (2006)
164. (reviewing JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005)) (discussing the history both before and after the Constitution of putting American troops under foreign command).
165. It does not follow, however, that a treaty can violate the Bill of Rights. Those rights were enacted as specific limitations on the powers in the original Constitution, including the treaty power. The Supreme Court in fact has held that treaty provisions must conform to provisions of the Bill of Rights. See Reid v. Covert, 354 U.S. 1 (1957).
166. The analysis here is complementary to the theory of domestic Article I tribunals advanced by my colleague James Pfander. He argues that Congress is authorized to set up Article I tribunals by Article I, Section 8 so long as they remain inferior to the judicial power. See James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 775-76 (2004). Pfander further suggests that international tribunals, like that constituted by NAFTA, should not be understood as Article I tribunals, because they apply international law. Pfander's focus on the need for specific authorization for Article I tribunals, however, raises the question of what authorizes Congress to establish tribunals in the context of international delegation, which are neither Article I nor Article III tribunals. Here I suggest that the Treaty Clause with its authority to establish confederations encompasses that authority.
167. See Kontorovich, supra note 120, at 64 (discussing Pfander's analysis in relation to the constitutionality of international tribunals).
168. For a discussion of why the supermajority requirement makes the ratification of international delegations more difficult, see infra Subsection III.C.4.
169. See HAMILTON, supra note 115, at 22.
170. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 303 cmt. e (1990) (stating that interchangeability of congressional-executive agreements is the prevailing view).
171. Hathaway, supra note 42, at 1339 ("In those few cases in which an agreement exceeds the constitutionally permitted scope of a congressional- executive agreement, the agreement would have to be concluded under the Article II Treaty Clause.").
172. See Missouri v. Holland, 252 U.S. 416 (1920) (holding that the treaty power permits the federal government to enter into an agreement about migratory birds, even if that agreement exceeds the enumerated powers in Article I, Section 8).
173. See John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703, 764-65 (2002). For full refutations of the modern interchangeability thesis on originalist grounds,
174. see RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 140-56 (1974); and
175. Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C.L. REV. 133 (1998).
176. See HAMILTON, supra note 115, at 22.
177. See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 810-811 (1995).
178. See Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 CAL. L. REV. 671, 734 (1998) (discussing the interest in protecting the interests of states at the time of the Framing).
179. For a discussion of this rationale for the two-thirds ratification requirement of treaties, see McGinnis & Rappaport, supra note 136, at 760-769
180. See also Robert J. Delahunty, Federalism Beyond the Water's Edge: State Procurement Sanctions and Foreign Affairs, 37 STAN. J. INT'L L. 1, 56 n.284 (2001) ("The supermajority requirement for Senate action ... operates to ensure that the ratification of a treaty... reflects a broadly based, national consensus.").
181. Mark Tushnet argues that the substitution of congressional-executive agreements for treaties is an example of a "constitutional workaround." See Mark Tushnet, Constitutional Workarounds, 87 TEX L. REV. (forthcoming 2009).
182. He defines a workaround as a situation in which one constitutional text appears to forbid a practice, but that practice is popularly desired and another constitutional text appears to provide a route to the desired result. As an originalist, I am skeptical of the concept of constitutional workarounds: arguments from structure and intent are available to resolve the ambiguity created by the two constitutional texts to decide whether the practice is permitted. As discussed above, that is the reason that congressional-executive agreements cannot be substituted for treaties, at least in the context of the authorization of binding international delegations. Moreover, Tushnet himself recognizes that constitutional workarounds will seem more plausible insofar as the constraining constitutional text seems to have no policy justification. As discussed below, in the context of international delegations the treaty requirement does have a policy justification. Thus, as a matter of original meaning and policy, the Court and the Senate have reasons to resist the "workaround" of a congressional-executive agreement in this context, or as it may be properly labeled, a constitutional circumvention.
183. It has been argued that the Constitution now does authorize interchangeability, see Ackerman & Golove, supra note 138, but this view is based on the theory that the Constitution can be changed through "constitutional moments"- a theory that I have rejected elsewhere,
184. see McGinnis & Rappaport, supra note 136, at 794-795
185. See Phillip R. Trimble & Jack S. Weiss, The Role of the President, The Senate and Congress with Respect to Arms Control Treaties Concluded by the United States, 67 CHI.-KENT L. REV. 645, 662 (1991).
186. How far one is justified in departing from the original meaning of the Constitution in light of past precedent and practice is obviously too large a question to address here. But elsewhere I have suggested that the original meaning should be followed unless there are very large costs imposed by discarding a line of precedent or unless that precedent enjoys a popular consensus akin to that required to pass a constitutional amendment. See John O. McGinnis & Michael B. Rappaport, Reconciling Originalism and Precedent, 103 Nw. U. L. REV. (forthcoming 2009). Clearly these conditions would not preclude applying the original understanding of the Constitution to international delegations.
187. The binational panels established under NAFTA have authority under domestic law to settle certain antidumping disputes, and NAFTA was passed under a congressional-executive agreement, not a treaty. See supra notes 15-16 and accompanying text. Thus, the analysis offered here would cast doubt on the constitutionality of that provision.
188. 252 U.S. 416 (1920).
189. Id. at 432 ("If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.").
190. See Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867 (2005).
191. U.S. CONST, art. II, § 2, cl. 2 ("He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur....").
192. Id. art. I, § 8, cl. 18.
193. Rosenkranz, supra note 148, at 1880-1892.
194. Id. at 1903-1912.
195. Id. at 1907-1909.
196. Id. at 1936. Overruling Missouri v. Holland in this respect would still permit the treaty power to conclude pacts beyond Congress's enumerated powers in Article I.
197. Id. at 1935-1937;
198. see McGinnis & Rappaport, supra note 144.
199. See Hathaway, supra note 42, at 1312 (discussing those who believed that "an extraordinary level of consensus is necessary to conclude an Article II treaty"). The best discussion of the higher hurdles for Senate ratification of a treaty is
200. John K. Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional Executive Agreement, or Executive Agreement?, 31 J. LEGAL STUD. S5, S17-S21 (2002).
201. Ackerman & Golove, supra note 138, at 861-873
202. See Keith Poole, 105th Congress, http://voteview.com/c105/c105.htm (last visited Apr. 29, 2009).
203. Another way to consider the greater hurdle is that the treaty process is much more likely than that of congressional-executive agreements to require the President to obtain support from the opposition party. See Setear, supra note 156, at S17 ("Never has there been a twentieth-century Congress in which the president's party controlled two-thirds or more of the Senate but less than half of the House.").
204. See Standing Rules, U.S. Senate, 102nd Congress, at R. XXII, in CONGRESSIONAL QUARTERLY'S GUIDE TO CONGRESS 68-A (4th ed. 1991).
205. See John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, The Median Senator, and the Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257, 281.
206. Id. The Senate purports to insulate this rule from change except by a two-thirds vote. See S. Doc. No.110-9, at 15-16 (2007) (explaining that Rule XXII requires the votes of three-fifths of all senators in office for cloture, except on measures to amend Senate rules, which require the votes of two-thirds of senators present and voting). However, this requirement is likely unconstitutional. See Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 246-52 (1997).
207. One argument against a supermajority rule in the Senate comes from the greater representation of states with small populations. This is a theoretical problem but as the ideological tracking of the median members of the Senate and House suggests, see supra note 158, it may be more theoretical than real. When support for a measure in the Senate is not correlated with the population of a state, the supermajority rule in the Senate would operate much like a supermajority rule in the House.
208. See McGinnis & Rappaport, supra note 136, at 748;
209. see also John O. McGinnis & Michael B. Rappaport, The Desirable Constitution and the Case for Originalism, 98 GEO. L.J. (forthcoming 2010) (manuscript at 45, on file with author) (arguing that while small states and large states differ systematically on issues, like agriculture, there is no reason to believe there are currently strong ideological differences).
210. See Hathaway, supra note 42, at 1314-1315
211. Oona Hathaway recently has suggested that policymakers might pursue a strategy of using congressional-executive agreements as the sole vehicle for ratifying international agreements, leading to desuetude of the treaty option. See id. at 1352. It is unclear to me how this is a realistic possibility. If the President and the Senate believe that an agreement they would prefer is easier to ratify by treaty than congressional-executive agreement, they will make use of that route. It seems unlikely that a Supreme Court, however activist, would negate an express constitutional provision, if the President and Senate decided to make use of it.
212. T. Alexander Aleinikoff suggests that these weaker ex post checks on delegation are likely to produce stronger constraints ex ante. See Aleinikoff, supra note 37, at 2002. My argument here is that these ex ante constraints must be constitutionally based, because members of Congress may have an interest in delegation that is not public-regarding.
213. See supra note 26 and accompanying text.
214. For an argument that this process is likely a sufficient discipline in the domestic context, see Merrill, supra note 21, at 2158-2159
215. Cf Dorf, supra note 38, at 122-124 (suggesting that international delegations and dynamic incorporation of international rules raise similar kinds of problems as constitutional entrenchment).
216. See supra Section I.A.
217. On antiforeign bias among voters, see BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER: WHY DEMOCRACIES CHOOSE BAD POLICIES 36-39 (2007).
218. Cf Dorf, supra note 38, at 113 ("[A]s a practical matter, an act originally intended only as a delegation may become a cession of sovereignty over time, as arguably occurred in the United States between the ratification of the Constitution and the conclusion of the Civil War.").
219. See John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. REV. 89, 95-97 (2004) (discussing why the decline in attachments to states makes citizens inattentive to federal structure).
220. See Hathaway, supra note 42, at 1308-1338
221. I also do not believe that policy arguments, however strong, are sufficient to erase the Treaty Clause from the Constitution. See supra Subsection III.C.1.
222. Hathaway, supra note 42, at 1308.
223. See McGinnis & Rappaport, supra note 136, at 710-724
224. Id. at 781-790
225. Id. at 770-774
226. See id. at 775-780 (showing how various supermajority rules are likely more efficient).
227. Hathaway, supra note 42, at 1316-1338
228. Id. at 1317-1323
229. See Setear, supra note 156, at S16-S17.
230. Hathaway, supra note 42, at 1323-1331
231. Hathaway at one point claims that "it is far from clear that a majority vote in the Senate and House requires any less of a consensus" than treaty ratification. Id. at 1337. I already have offered reasons to disagree with this assessment. See supra Subsection III.C.4. But this assertion seems in substantial tension with Hathaway's own recognition that it "is clear that an extraordinary level of consensus is required to conclude an Article II treaty."
232. Hathaway, supra note 42, at 1312.
233. See Dorf, supra note 38, at 158-168 (suggesting representative courts as a partial solution to the delegation problem).
234. There is a wide range of ways to constrain international agents. See Eyal Benvenisti & Ariel Porat, Implementing the Law by Impartial Agents: An Exercise in Tort Law and International Law, 6 THEORETICAL INQUIRIES L. 1, 2 (2005) ("These mechanisms include rules setting the agents' composition and decision-making procedures (procedural rules) and rules prescribing the outcomes the agents should reach or how they should conduct themselves prior to making their decisions (substantive rules).").
235. See McGinnis & Somin, supra note 22, at 1241-1243 (discussing the reasons why the United States is likely the best provider of many global public goods).
236. See Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1452 (1987) ("The New Deal's change in attitude toward the commerce clause thus depended upon a radical reorientation of judicial views toward the role of government that in the end overwhelmed the relatively clean lines of the commerce clause.").
237. See John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. &MARYL. REV. 365, 438 (1999).