International delegations, the structural Constitution, and non-self-execution.

Author:Bradley, Curtis A.
Position::Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. LIMITS ON DELEGATION A. Nondelegation Doctrine B. Procedural Requirements for Making Law C. Appointments Clause D. Article III Limitations E. Anticommandeering Limitations II. INTERNATIONAL DELEGATIONS A. U.N. Security Council B. International Court of Justice C. World Trade Organization E. Chemical Weapons Convention F. International Criminal G. Customary International Law III. FOREIGN AFFAIRS EXCEPTIONALISM IV. NON-SELF-EXECUTION CONCLUSION INTRODUCTION

In this Article, I consider some of the constitutional implications of U.S. delegations of authority to international institutions. (1) Since World War II, there has been a vast growth in the number and importance of international institutions. Although some of these institutions are merely forums for discussion and negotiation, many of them exercise judicial, legislative, regulatory, investigative, or prosecutorial authority. Despite its isolationist reputation, and despite recently announcing that it would not become a party to the International Criminal Court, the United States has committed itself to many of these international institutions. By virtue of these commitments, the United States has consented to have international institutions make certain decisions, and take certain actions, that can affect the United States's rights and duties under international law and, in some instances, the enforceability of U.S. domestic law. Although the number and extent of future U.S. commitments will likely vary depending on the presidential administration, the general trend internationally--as illustrated most dramatically by developments in Europe--is towards vesting ever-increasing authority in international institutions.

Without prejudging their validity, transfers of authority by the United States to international institutions could be said to raise "delegation concerns." (2) These concerns relate to democratic accountability, shifts in the balance of power between the federal branches, and erosion of the U.S. system of federalism. By transferring legal authority from U.S. actors to international actors--actors that are physically and culturally more distant from, and not directly responsible to, the U.S. electorate--these delegations may entail a dilution of domestic political accountability. This accountability concern may be heightened by the lack of transparency associated with some international decisionmaking, which in turn may increase monitoring costs and the potential for what economists call "rent-seeking." (3) In addition, transfers of authority to international institutions may increase the power of one branch of the federal government relative to the others. Most typically, these transfers may increase the relative power of the executive branch, both because they often delegate the powers of other branches, and because the United States is represented in these institutions by executive branch agents. (4) Finally, delegations of authority to international institutions--as with the expansion of international law more generally--have the potential to erode U.S. federalism by enhancing the power of the entire federal government vis-a-vis the states. (5) Even if these effects seem relatively modest with respect to particular delegations, the cumulative effect may be more problematic. (6)

Although these delegation concerns are not entirely new, (7) they have become much more pronounced in recent years. In the domestic context, similar concerns about accountability and aggrandizement of power are addressed by a variety of separation of powers and federalism doctrines. I will argue in this Article that, whether viewed from a formal or functional perspective, these structural constitutional doctrines are relevant to international delegations. (8) I will also argue that at least some of the constitutional concerns associated with these delegations can be addressed by presuming that the decisions and actions of international institutions are "non-self-executing"--that is, that they do not create enforceable federal law within the United States unless and until they are implemented by Congress. As I will explain, this has in fact been the approach intuitively followed by U.S. courts in recent years when confronted with delegation concerns, and it also is an approach increasingly mandated by the U.S. treatymakers and Congress.

This Article proceeds in four Parts. Part I provides a brief overview of some of the constitutional doctrines that may be relevant to international delegations. Part II describes a variety of actual and potential delegations of authority by the United States to international institutions and explains how these delegations may raise constitutional concerns. Part III argues that these constitutional concerns are not eliminated simply because international delegations involve foreign rather than domestic affairs. Part IV explains how a non-self-execution approach to international delegations will reduce at least some of these constitutional concerns.


    In this Part, I briefly describe some of the limitations that the Constitution imposes on delegations of authority. Although the decisions applying these limitations have generally involved domestic delegations, both the formal terms of these limitations and their functional underpinnings appear to be relevant to international delegations.

    1. Nondelegation Doctrine

      In thinking about constitutional limits on delegation, a natural starting point is the so-called "nondelegation doctrine." The Supreme Court has stated that "Congress generally cannot delegate its legislative power to another Branch." (9) The "fundamental precept" of this nondelegation doctrine, the Court has said, is that "the lawmaking function belongs to Congress ... and may not be conveyed to another branch or entity." (10) In other words, the Court has construed the Constitution's grant of legislative powers to Congress as implicitly precluding the transfer of these powers to other actors. At least in theory, the nondelegation doctrine "forces a politically accountable Congress to make the policy choices, rather than leave this to unelected administrative officials." (11) Under this doctrine, when Congress delegates power, it must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] ... is directed to conform." (12)

      Although the policy concerns underlying the nondelegation doctrine (such as the concern about accountability) might seem relevant to international delegations, the doctrine, as currently applied by the Supreme Court, may be too weak to impose any meaningful restraint on such delegations. Despite professing its commitment to the doctrine, the Court has allowed Congress to delegate substantial interpretive and regulatory authority to both the executive branch and the judiciary, and it has not found a violation of the intelligible principle requirement since the mid-1930s. (13) The Court has explained that its nondelegation doctrine "has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." (14) Although some Supreme Court Justices and academic commentators have called for reinvigorating the nondelegation doctrine, the Court has not yet shown an inclination to do so. (15)

      This assessment turns out to be incomplete, however, for two reasons. First, as other scholars have noted, nondelegation concerns have often influenced the Court's construction of statutes. (16) Thus, the Court has sought to promote the policies underlying the doctrine indirectly through interpretation, rather than directly through constitutional invalidation. As discussed below, there may be arguments for similarly addressing constitutional concerns with respect to international delegations by means of interpretation rather than by direct constitutional review.

      Second, there are a number of other separation of powers doctrines that impose limits on delegations of authority and which, unlike the nondelegation doctrine, are directly enforced by the Supreme Court. As discussed below, at least some of these doctrines appear to be relevant to international delegations.

    2. Procedural Requirements for Making Law

      The Constitution's procedural requirements for making law have been construed to limit delegations of authority. Thus, for example, the Supreme Court has disallowed delegations that appear to bypass the Constitution's bicameralism and presentment requirements for federal legislation. (17) In doing so, the Court has made clear that "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution." (18) The Court has enforced these bicameralism and presentment requirements not only with respect to horizontal delegations of authority between the federal branches, but also with respect to a vertical delegation of authority to an entity created under state law. (19) As the Court explained in Metropolitan Washington Airports Authority, "[a]ny other conclusion would permit Congress to evade the 'carefully crafted' constraints of the Constitution ... simply by delegating primary responsibility for execution of national policy to the States." (20) As with federal legislation, there are procedural requirements specified in the Constitution for making treaties--most notably the requirements of senatorial consent and presidential ratification--and these requirements may similarly impose limits on delegation.

    3. Appointments Clause

      The Article II Appointments Clause also has been read to limit delegations. This clause gives the President the power to appoint, with the advice and consent of the Senate, ambassadors, other public ministers and consuls, Supreme...

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