Congress's international legal discourse.

• Author: Cope, Kevin L.
• Position: Abstract through III. Toward a Theory of Congressional International Law Discourse, p. 1115-1143

Despite Congress's important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over bills whose enactment arguably triggers international law violations, members of Congress urge international law compliance relatively often, using rhetorical framing devices similar to those that members use for comparable constitutionally problematic bills. The arguments are overwhelmingly supportive of international law and often phrased in legalistic terms. The evidence suggests, moreover, that such international law invocation may be partially motivated by political self-interest. These findings, together with existing literature and qualitative evidence from former policymakers, imply that members of Congress may be incentivized to take public pro-international law positions by international law-minded executive officials. In this way, the executive may use the legislature to reinforce the national commitment to international law obligations. Through this interbranch bargaining, the president might use congressional international law discourse to boost the country's international credibility and strengthen her office's own hand in making and enforcing future commitments.

INTRODUCTION I. INTERNATIONAL LAW AS "HIGHER-ORDER" LAW AND AS ORDINARY FEDERAL LAW A. Foreign Relations, International Law, and Congress B. International Law as "Higher-Order" Law C. The Domestic Relationship Between Congress, the Courts, and International Law 1. Pertinent Doctrine Governing International Law in the U.S. Domestic System: Treaties, Customary Law, and the Charming Betsy Canon 2. Three "Easy" Cases of Congressional-International Law Interaction 3. The "Hard" Case: Elective Consideration of International Law D. Comparison to Constitutional Higher-Order Law II. WHAT CONGRESSIONAL DISCOURSE SAYS ABOUT CONGRESSIONAL NORMS III. TOWARD A THEORY OF CONGRESSIONAL INTERNATIONAL LAW DISCOURSE A. The Indifference Hypothesis: Congressional Indifference Toward, or Ignorance of, International Law B. The Constituent Audience Hypothesis: Meaningful International Law Discourse Motivated by Electoral Support for International Law C. The Foreign Audience Hypothesis: A Robust International Law Discourse Directed Abroad D. Empirical Predictions IV. EVIDENCE OF INTERNATIONAL LEGAL DISCOURSE IN CONGRESS A. Defining the Database and Data Collection B. Analytical Methods C. Results 1. Number and Depth 2. Higher Norm and Bill Attitude Typologies 3. Argument Form V. FURTHER QUESTIONS CONCLUSION INTRODUCTION

The role of international law in both international relations and state (1) domestic affairs has grown markedly over the past several decades. (2) In the United States, international conventions now cover numerous topics that were once the sole domain of federal or U.S. state law. (3) As of 2012, the United States was a party to at least 8,400 bilateral and multilateral treaties, covering issues from chemical weapons to racial discrimination. (4) Over roughly the same period, American jurists have gradually converged on a "modern view" of customary international law ("CIL"), which holds that CIL is a form of federal law enforceable in federal courts. (5) Together, these trends have increased the political and practical relevance of these two forms of international law in the U.S. domestic system. (6) Perhaps as a partial result, interest in topics at the nexus of international law and domestic decisionmaking has surged among legal scholars. (7)

That attention, however, has focused almost exclusively on the courts (8) and the president. (9) With the exception of Congress's role in approving and implementing international agreements, the impact of international law in congressional lawmaking has been mostly ignored by scholars. (10) This is true despite the fact that under the U.S. system of international law, federal statutes can uphold or breach international law on the domestic plane, meaning that Congress plays a key role in how the United States treats its ever-growing international commitments. (11)

The cause of this neglect is unclear. It could be a by-product of the legal academy's general "court-centric" focus. (12) Alternatively, it could stem from an assumption that studying international law in Congress would be mostly fruitless: that Congress is mostly indifferent to international law, and time spent searching for international law consideration by Congress would be time wasted. That notion, however, would appear to rest mainly on conjecture and anecdote. To date, no study has examined systematically to what extent international law norms are part of the congressional lawmaking process. (13)

This Article attempts to buck that trend. Because the nexus of international law and Congress is too broad for one study, this Article first sets forth a typology of ways in which Congress interacts with international law, and it examines one of those types, what I call elective consideration of international law, (14) in detail. The Article then takes up the question of how international law informs legislative decisionmaking and, specifically, how Congress purports to use international law in its public discourse about bills that violate it.

To do so, the Article develops three hypotheses. Each assumes that members of Congress are self-interested, utility-maximizing actors, but each is based on different sets of assumptions about attitudes toward international law, the specific political incentives facing members of Congress, and the relationships between states.

First, the apparent conventional wisdom is captured in an Indifference Hypothesis. It holds that because international law is poorly understood and less valued than domestic sources of law, electorally minded members of Congress will generally avoid or show indifference toward much of international law in their legislative statements.

The two alternative hypotheses challenge this view. The Constituent Audience Hypothesis relies on two assumptions: that the conventional wisdom about Americans' opinion of international law is exaggerated or wrong, and that members of Congress know this and respond accordingly out of political interest. In other words, members of Congress might take international law-supportive symbolic positions often and without compunction because, if done right, domestic constituents might actually reward it. Moreover, legislators will frame their international law arguments in either legalistic or pragmatic terms to broaden their appeal to constituents.

Third and finally, the Foreign Audience Hypothesis also posits that international law considerations have a vibrant role during the creation of domestic statutes, but it assumes an altogether different audience for this discourse. It proposes that when considering legislation lacking any obvious connection to international law, but which would potentially violate some international law norm, members of Congress routinely invoke international law. Such consistent legislative backing for adherence to international law is intended to yield long-term credibility dividends, which, in turn, strengthen the country's position in future foreign policy negotiations. Under this hypothesis, the relatively internationally oriented executive may be wholly or partly driving this form of discourse. Empirically, the hypothesis predicts that members of Congress will phrase their arguments in more legalistic terms, stressing the importance of international law compliance for the sake of compliance.

To test these hypotheses, I assemble an original dataset comprising 620 argument observations from the legislative histories of roughly two dozen selected statutes. I compare the deliberations leading to the international law statutes with those of a control group comprising comparable statutes containing constitutionally problematic elements. I code and analyze numerous aspects of each argument, including the speaker's attitude toward the international or constitutional law, the speaker's attitude toward the legislative proposal, and several characteristics of the legislative proposal and the speaker herself. I also code the speaker's rhetorical framing device, that is, whether the argument is styled as legalistic, pragmatic, or as concern for threat of formal sanction.

The data strongly refute the Indifference Hypothesis. They show that international law occupies a similar amount of Congress's attention as constitutional law does under comparable circumstances. Indeed, Congress elects to consider many types of international law norms in domestic lawmaking most of the time it is relevant, that is, whenever there is tension between international law and the proposed bill. In subjects including use of force, intellectual property, the status of enemy combatants, criminal law, and others, members of Congress consistently express concern about breaching the country's international law obligations, and they urge their colleagues to amend or defeat the bills to avoid doing so. They do so even though the bills raise no facial international law issues and although it would be lawful under U.S. law to ignore international law altogether. Notably, these international law arguments rely heavily on both legalistic and pragmatic arguments, much like the control set of constitutional arguments, which are also often framed in...