Globalization and structure.

Author:Ku, Julian G.


Sovereignty in the United States is uniquely intertwined with its founding document. An important part of the Constitution is the definition and protection of individual rights, which is a sign of the government's authority and responsibility for the nation's people. (1) A more important aspect of sovereignty, however, rests in the Constitution's creation of the national government, the definition of its powers, and the limits thereon. The Constitution channels the national government's sovereignty through two structures: the separation of powers, which organizes authority within the national government; (2) and federalism, which distributes power between the national government and the states. (3) One need not subscribe to Justice Sutherland's theory in United States v. Curtiss-Wright Export Corp.--that the federal government must possess all sovereign powers available to any nation-state (4)--to agree that the Constitution, at the very least, grants to the federal government many powers traditionally associated with national sovereignty. (5) These powers include the power to enact and enforce domestic laws, (6) make war, (7) reach international agreements, (8) and regulate international commerce. (9) The Constitution often addresses these powers through the structures of the separation of powers and federalism. Separation of powers dictates, for example, that the power to make war is divided between Congress and the President but that the power to make treaties is shared between the executive and the Senate. (10) As a matter of federalism, the Constitution prohibits the states from making war and treaties and from regulating international commerce. (11)

Globalization does not directly pressure these structures. A nation could respond to the growing interconnectedness of the international economy by doing nothing, and its constitutional structures would remain unaffected. But it is the natural, and perhaps inevitable, reflex of nations to try to regulate globalization's effects. It is this attempt by governments to expand their regulatory reach in response to globalization that creates distortions in the constitutional structure and, in turn, poses challenges to American sovereignty.

Increased cross-border human activity has led to more frequent international cooperation. (12) Take pollution, for example. Pollution crosses national boundaries, contaminates global commons such as the seas, and may even lead to a rise in world temperatures. A single nation cannot undertake unilateral action to successfully regulate pollution of this kind, and international cooperation would suffer from free riders: nations that benefit from the reduction in pollution but refuse to contribute resources or bear any costs to improve the environment. Similar problems are faced by efforts to combat international terrorist groups, control the international drug trade, or stop the spread of nuclear, chemical, or biological weapons technologies. (13)

To reap the benefits of collective action, international cooperation is likely to take forms that resemble those of the American administrative state. An international regulatory regime generally will need to reach all activity, regardless of each individual nation's internal hierarchy of authority. In order to regulate global warming successfully, for example, the Kyoto accords must be able to reach all forms of energy use that produce carbon emissions. (14) The Chemical Weapons Convention (CWC) formally regulates all chemicals, no matter their use, source, or location. (15) This sweeping reach usually combines with a permanent international organization that is empowered to settle disputes over the agreement between interested nations. (16) The organization will often aid implementation by issuing regulations that adapt the regime to new circumstances or delegate authority. (17) Under the United Nations Charter, the Security Council can call upon member states to use any necessary means, including the use of force, against a threat to international peace and security. (18) The World Trade Organization (WTO) agreement establishes a dispute settlement body that hears claims by one nation against another's alleged trade violations. (19) The International Criminal Court brings prosecutions for human rights violations that member states cannot or will not properly investigate on their own. (20) We do not exaggerate the extent of global governance currently in place. Nations still control the reality of world politics, but emerging forms of international cooperation are determining the future of international law and setting the outlines for expansion in international organizations. (21)

Although relatively new to the international scene, these forms and orders should sound familiar to students of the American administrative state. Just as new international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords, for example, had their counterpart in the federal government's efforts to control the production of every bushel of wheat on every American farm, as discussed in Wickard v. Filburn. (22) The new international courts and entities have their counterparts in the New Deal's commissions and independent bodies, which were created to remove politics from administration in favor of technical expertise. (23) To remain neutral, these international bodies must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. (24) The New Deal's stretching of constitutional doctrine sparked a confrontation between President Franklin D. Roosevelt (FDR) and the Supreme Court, which initially espoused a narrower and less flexible vision of federal power and the role of administrative agencies. (25) Without a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law.


    Developing such a theory requires a baseline for the regulation of normal domestic affairs. The Constitution relies on two main structures to regulate and limit the exercise of governmental power: federalism and the separation of powers. Federalism, in our view, encompasses two interlinked authoritative bodies: a national government that exercises limited, enumerated powers, and states that retain sovereignty over the great mass of everyday affairs. By contrast, the separation of powers allocates authority within the national government over the powers delegated to it by the Constitution.

    1. Federalism and the Separation of Powers

      Although the Constitution mentions neither federalism nor the separation of powers in its text, scholars and government officials have understood from the start that both principles lay at the very core of the American government. The Federalist Papers extensively described the various provisions of the Constitution that conform to both structures. (26) They pointed, for example, to Article I, Section 8 of the Constitution to show that the federal government's powers would be limited, though obviously broader in scope than those of the Articles of Confederation. (27) Opponents urged Americans against ratification because they argued, in part, that the Constitution did not contain even more forceful protections for federalism and the separation of powers. In defending the Constitution, James Madison argued that the government was "neither wholly national nor wholly federal," but a mixture. (28) "In its foundation, it is federal, not national"--in other words, the Constitution required the consent of the states. (29) "[I]n the sources from which the ordinary powers of the Government are drawn, it is partly federal and partly national"--that is, the House of Representatives represented the majority of the American people as a whole, but the Senate gave the states equal representation, while the Electoral College made the President a product of both. (30) "[I]n the operation of these powers, it is national, not federal"--indeed, the Constitution's powers directly regulated individuals, and not the states. (31) "[I]n the extent of them, again, it is federal, not national"--finally, supremacy over some subjects rested with the national government, and some with the states. (32)

      If federalism refers to a political system that allocates authority between governmental bodies that coexist within the same territory, then the question of federalism was one the British Empire and its colonies had struggled with for some time. (33) The American Revolution did not truly solve the challenge of distributing power between the national and state governments, and it was the delegates to the Philadelphia Convention who finally attempted to solve the problem. The proposed Constitution that resulted from the Convention, however, is notable not just for its enumeration of new national powers, but also for its rejection of efforts to reduce the role of the states in the national political system. (34)

      The Constitution vested Congress with numerous powers that it had lacked under the Articles of Confederation. The national government now could impose taxes and duties, borrow and spend money, regulate interstate and international commerce, conduct foreign relations, establish a military, control naturalization and bankruptcy, grant patents and copyrights, and create the lower...

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