Disregarding foreign relations law.

• Author: Jinks, Derek
• Position: Response to article by Eric A. Posner and Cass R. Sunstein in this issue, p. 1170

INTRODUCTION I. OUR VIEW: MAKING, BREAKING, AND INTERPRETING LAW IN THE "EXECUTIVE-CONSTRAINING ZONE" II. UNDERSTANDING THE STRENGTH (OR LACK THEREOF) OF DEFERENCE CLAIMS III. THE CASE AGAINST POSNER AND SUNSTEIN'S PROPOSAL TO PROVIDE DEFERENCE IN THE EXECUTIVE-CONSTRAINING ZONE A. Evaluating the Affirmative Case for Deference B. Boundary Problems C. Excessive Concentration of Power in the Executive D. The Withering of Congress's Role E. One Precondition to Deference: Bureaucratic Expertise CONCLUSION INTRODUCTION

What role should courts play in the interpretation and application of foreign relations law? One important aspect of this question is whether and when courts should second-guess the executive on matters that implicate foreign relations. This issue is as difficult as it is important. On the one hand, the executive has both unique institutional virtues and substantial constitutional authority when it comes to foreign affairs. On the other hand, this sphere of government activity is increasingly governed by law-law that both purports to regulate the actions of the executive and that is made at least in part outside the executive. The upshot is that although some deference is almost certainly often warranted, too much deference risks precluding effective regulation of executive action.

Eric Posner and Cass Sunstein call for a dramatic expansion in the deference that courts accord executive interpretations of law in the foreign affairs context. (1) They maintain that courts should defer to the executive in a broad class of cases, even if the executive interpretation is articulated only as a litigation position and even if the executive's interpretation is inconsistent with international law. (2 Of course, courts do, in fact, often defer to the executive in foreign affairs cases. (3) Nevertheless, Posner and Sunstein urge that even greater deference is required. (4) In their view, the proper scope of deference is limited only by a narrow range of underspecified nondelegation canons and a "reasonableness" inquiry analogous to that articulated in the line of administrative deference cases starting with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (5) Although Chevron-style deference formally preserves some role for the judiciary to review executive interpretations for their "reasonableness," courts conducting such review rarely invalidate agency action. (6) Despite this fact, Posner and Sunstein insist that

[r]eview of executive interpretations for reasonableness nonetheless should be expected to have a significant function. It would, for example, raise questions about apparently arbitrary differences across time or across nations, as in an executive judgment that the civil rights statutes apply in England and Germany but not in France and Italy; any such judgment would have to be explained. (7) These claims, though, are difficult to square with the very reasons why, in their view, Chevron deference is appropriate in foreign relations law in the first place. As we explain more fully below, Posner and Sunstein claim that robust deference is appropriate in the foreign relations realm precisely because the application of this law almost always turns on case-specific judgments of prediction and value-judgments that the flexible, energetic, and accountable executive is well suited to make. (8) The upshot is that Chevron-style deference of the sort they propose would radically expand the authority of the executive to interpret and, in effect, to break foreign relations law.

We disagree with their approach. We believe that it would have been a bad idea at the Founding and is an even worse idea today. We are motivated to respond to Posner and Sunstein not simply because of the increasing importance of this issue in the wake of the treacherous attacks of September 11, 2001, but also because we fear that the innovative proposal by these accomplished academics may lead courts down a path that would depart from longstanding precedent at a crucial moment in the development of international law, particularly international humanitarian law.

Posner and Sunstein are absolutely right to acknowledge that their theory has "radical implications." (9) If enacted into law, it would upend centuries of precedent and give the President a power that no court has ever given the executive. It would accelerate the trend of circumventing Congress in key decisions involving war powers and civil liberties and would be in tension with the separation of powers our Founders laced into the Constitution. While such a claim might be temporarily plausible in emergency situations in which Congress cannot act, and in others in which there are strong executive branch processes that have done the hard work of earning deference, they are not appropriate in all situations.

In our view, Posner and Sunstein's proposal threatens to undermine the rule of law by radically increasing the executive branch's capacity to interpret and to break the law under its foreign relations power-even when the law's purpose is to restrict that very power. Our position is straightforward: we maintain that increased judicial deference to the executive in the foreign relations domain is inappropriate. Two broad claims structure our defense of this view and our critique of the Posner and Sunstein proposal. First, current deference doctrines, some peculiar to foreign relations law and some not, cover the vast majority of examples in which deference is warranted. The burden that Posner and Sunstein must carry is to demonstrate convincingly that their proposal prescribes judicial deference in circumstances not otherwise eligible for robust deference. The circumstances in which their proposal does so include, most prominently, executive interpretations of international law that operate in what we call the "executive-constraining zone." This zone refers to the domain of foreign relations law, particularly international law, that (1) has the status of supreme federal law, (2) is made at least in part outside the executive, and (3) conditions the exercise of executive power.

Our second claim, broadly conceived for the moment, is that substantial judicial deference to executive interpretations of international law is inappropriate, at a minimum, in the executive-constraining zone. International law operating in this zone includes self-executing treaties and statutes incorporating international law either explicitly, as in the case of the Uniform Code of Military Justice (UCMJ) provisions central to the Supreme Court's decision in Hamdan v. Rumsfeld, (10) or implicitly, as in the case of the 2001 Authorization for Use of Military Force (AUMF). (11) Substantial deference in this context cannot be squared with the doctrinal and institutional implications that necessarily follow from the status of these international instruments as "law." In our view, the courts must retain the institutional prerogative to interpret law in this zone any time cases or controversies turning on the interpretation of this law are otherwise properly presented and otherwise appropriate for judicial resolution. And this prerogative constitutes an important limit on the power of the President to interpret treaties in the course of performing or otherwise implementing U.S. treaty obligations.

Our argument unfolds as follows. In Parts I and II, we define the realm of foreign relations law in which we consider substantial deference plainly inappropriate--the executive-constraining zone. We identify several doctrinal and institutional complications that arise if substantial, case-specific deference is accorded in this zone. Our position is best understood as a broad defense of the existing robust interpretive authority of Congress and the courts in this zone of foreign relations law. In Part III, we identify several specific problems with the Posner and Sunstein proposal. We first argue that Posner and Sunstein offer no good reason to depart from the current longstanding tradition of requiring Congress to authorize explicitly any action in violation of international law that has the status of supreme federal law and conditions the exercise of executive power. We also note that their proposal rests on an unclear and inaccurate conception of foreign relations law--and that this conception generates a host of boundary problems. In addition, we explain that the Posner and Sunstein proposal would dramatically increase the power of the President in ways that would be contrary to the nation's interests. Furthermore, we suggest that their proposal would, ex ante, lead to far less congressional regulation of the executive. Every time Congress authorized force, for example, legislators would now have to fear that their authorization would be viewed as a mandate to pursue any number of other activities that violated international law. Finally, we point out that Posner and Sunstein's legal claims would encourage courts to defer to self-interested positions taken by the executive when those positions have not been established through ordinary processes and interagency vetting--both necessary to cultivate the kind of accountable bureaucratic expertise that is a prerequisite to the deference Posner and Sunstein envision. (12)

1. OUR VIEW: MAKING, BREAKING, AND INTERPRETING LAW IN THE "EXECUTIVE-CONSTRAINING ZONE"

   We question whether there is a need to increase the deference accorded to the executive in the foreign affairs context. We first note that the executive enjoys substantial discretion in this context--and that courts typically play only a modest role. The sharp edge of the Posner and Sunstein proposal is their recommendation of substantial deference in an even broader set of circumstances. We maintain that courts should, at a minimum, continue to scrutinize executive interpretations of international law when that international law has the status of supreme federal law; is made, at least in...