Chevronizing foreign relations law.

• Author: Posner, Eric A.

INTRODUCTION I. INTERNATIONAL RELATIONS DOCTRINES A. Comity Doctrines B. Anti-Comity Doctrines II. BEHIND THE DOCTRINES A. Entanglement B. Consequences and Reciprocity 1. Consequences in General 2. Rules and Standards C. Questions and Doubts III. EXECUTIVE POWER A. The Chevron Doctrine 1. Two Steps 2. Limits on Deference a. Delegated Power of Interpretation? b. Nondelegation Canons? c. Organic Statutes and Others B. The Executive and International Comity 1. Traditional Deference to the Executive in Foreign Relations 2. Conflicts Between Regulations and International Comity C. The Argument for Executive Power D. A Historical Evolution E. Objections and Responses 1. Nondelegation Canons? 2. Self-Dealing 3. Mead, Chevron, and Bureaucracy 4. Short Term, Long Term, and Stability 5. Eliminating Congress? 6. Miscellanea IV. HARD CASES: THE AUMF AND THE WAR ON TERROR A. The AUMF in General B. Hamdi C. Hamdan D. A Note on Congress CONCLUSION INTRODUCTION

Federal law contains a range of international comity doctrines, developed by judges to reduce tensions between the United States and other nations. These doctrines instruct courts to interpret American law in a way that avoids conflict with, or offense to, foreign sovereigns. The international comity doctrines are a subset of what we shall call international relations doctrines--doctrines that control how courts decide cases that influence foreign relations but that do not always require courts to defer to the interests of foreign sovereigns. Our modest goal here is to offer a sympathetic reconstruction of the underpinnings of these doctrines. Our more ambitious goal is to suggest that courts should generally draw on established principles of administrative law to permit executive interpretations of ambiguous statutory terms to overcome the international relations doctrines. This approach would greatly simplify current law; it would also allocate authority to the executive, which is in the best position to balance the competing interests.

To understand the operation of the international relations doctrines, consider the following problems:

(1) The Civil Rights Act of 1964 forbids discrimination on the basis of sex. (1) American businesses operating in Saudi Arabia discriminate against female workers, some of whom are also Americans. The workers bring suit, contending that the statute has been violated. Under the presumption against extraterritoriality, ambiguous statutes are not applied to conduct that occurs on foreign territory. (2) It follows that unless Congress has clearly said otherwise, the prohibition on sex discrimination applies only within the physical boundaries of the United States. (3) The usual rationale would be to prevent offense to Saudi Arabia. But does Saudi Arabia really care about sex discrimination by American businesses practiced against American employees? Even if it does, does it care enough that the discriminatory practice should be tolerated? The executive branch, which has the best information about relations with Saudi Arabia, says no. (4) Should courts defer to the executive?

(2) The Immigration and Nationality Act authorizes Immigration and Customs Enforcement (ICE) to detain dangerous aliens who cannot be repatriated because their home countries will not accept them. (5) ICE interprets this authorization as permitting it to hold an alien convicted of manslaughter for an indefinite period. The alien brings suit, arguing that ICE has violated the statute, which does not speak to this particular question. Under the Charming Betsy doctrine, (6) which requires courts to construe ambiguous statutes so as not to violate international law, the immigration statute should be interpreted to forbid "prolonged and arbitrary" detention in violation of non-self-executing treaties or customary international human rights law. (7) The executive branch, which has better information about the consequences of violating international law, argues against application of the Charming Betsy doctrine. If we suppose that Congress has not incorporated the relevant aspects of international law into domestic law, should courts defer to the executive?

(3) The Foreign Sovereign Immunities Act (FSIA) generally forbids lawsuits against foreign sovereigns in American courts, but it contains a number of exceptions, one of which permits suits when the sovereign has expropriated property in violation of international law. (8) A plaintiff sues Austria, arguing that it expropriated artworks that belonged to her family during and after World War II. Prior to enactment of the FSIA in 1976, the judge-made foreign sovereign immunity doctrine did not contain an exception for illegal expropriations. The executive branch argues that the FSIA should not apply retroactively, fearing that litigation would upset delicate international arrangements to provide compensation to victims of Nazi atrocities. Should the court accept the interpretation of the executive branch? (9)

Each of these examples raises two questions. The first involves the operation of the international relations doctrines. Why, exactly, should courts interpret statutes to avoid extraterritorial application (as in the first example) or the violation of international law (as in the second example)? The conventional explanation is that otherwise foreign sovereigns would be offended, but neither of our first two examples provides a strong case for such a view. (10) We argue that the international relations doctrines are best understood by an account that emphasizes the costs of deferring to foreign interests, which may be substantial, as well as the benefits. As we show, important American interests may justify giving offense to foreign sovereigns--including, for example, the interests in vindicating laws forbidding discrimination and protecting the environment. (11)

The second question involves the role of the executive. When the executive advances an interpretation of a statute that violates international comity doctrines (the first two examples) or otherwise places a strain on the ordinary meaning of a statute (the third example), should the executive's interpretation be entitled to respect? This question has not yet been answered squarely by the courts. Drawing an analogy to the administrative law doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (12) and arguing that Chevron often applies directly, we contend that courts should generally defer to the executive on the ground that resolving ambiguities requires judgments of policy and principle, and the foreign policy expertise of the executive places it in the best position to make those judgments. The exceptions here are the standard exceptions to Chevron itself: most importantly, those that require the national legislature to speak clearly if it seeks to raise serious constitutional doubts. The avoidance canon is the most prominent example of a limitation on implicit delegations of authority to the executive.

The importance of the international relations doctrines has been growing over time-a consequence of the increasing frequency of cross-border activity and the corresponding efforts of the U.S. government to regulate that activity. Of course, the war on terror is a factor here, but the change is far more general. Antitrust law can be used against foreign businesses to ensure that they do not engage in anticompetitive practices that injure Americans. (13) To say the least, American citizens have a strong interest in freedom from sex discrimination, but application of American law to actions in, say, Saudi Arabia might well cause international tensions. Americans also care about whether foreign sovereigns adequately investigate and prosecute international terrorists who plot on their soil but conduct operations in the United States. All of these activities are potentially governed by the international relations doctrines.

As we shall see, the doctrines have plausible justifications. Courts are alert to the risks of creating international tensions, and in many cases they seem to be making a presumptive judgment that deferring to the interests of foreign sovereigns produces benefits for Americans that outweigh the costs. For this reason, courts have concluded that Congress must explicitly authorize extraterritorial application of domestic law, or a violation of international law, or any other decision that threatens international comity. But there are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity, at least when the underlying statute is unclear. (14) The executive branch can claim a constitutional warrant for making the underlying judgments in the face of congressional silence or ambiguity, and it is in an exceedingly good position to balance the relevant interests.

This simple argument fits with the logic of some recent decisions, (15) but it also has radical implications, some of which are likely to be controversial. The most obvious is that courts should play a smaller role than they currently do in interpreting statutes that touch on foreign relations. Another is that the executive branch should be given greater power than it currently has to decide whether the United States will violate international law. Our argument also implies greater deference to the executive when it intervenes in private litigation. Under our approach, the expressed will of Congress would still control, and the international relations doctrines would continue to resolve cases in which the executive has not taken a position. In such cases, the default assumption would follow the established doctrines; an affirmative statement by the executive would be necessary to overcome that assumption. But if an affirmative statement by the executive were forthcoming and its position were reasonable, the courts would defer to the executive on whether to...