Medellin and the future of international delegation.

• Author: McGinnis, John O.

FEATURE CONTENTS I. A COMPARISON OF DOMESTIC AND INTERNATIONAL DELEGATIONS A. The Policy Concerns with Delegation B. The Analogy to Article I Courts II. SOLVING THE PUZZLES OF MEDELLIN A. Medellin's First Puzzle B. Medellin's Second Puzzle III. THE FUTURE OF INTERNATIONAL DELEGATION A. The Administrative Law Model B. Categorical Constraints and Categorical Permissions C. The Treaty Clause as a Policing Mechanism 1. The Original Meaning of the Treaty Clause and International Delegations 2. The Interchangeability Objection 3. Implementing a Treaty's Delegation 4. The Higher Threshold of Treaties 5. Policy Advantages of the Treaty Requirement for International Delegation 6. The Effects of the Treaty Regime on International Delegations CONCLUSION INTRODUCTION

Due to increasing technological acceleration and social complexity, modern government is administrative government. Globalization and the spillovers--actual and perceived--that it creates among nations increase the demand for international governance. The combination of these forces moves the world inexorably toward new forms of international administration. For instance, if nations establish a multilateral treaty to address global warming, it is likely that they will wish to delegate to international agents some responsibility for the complex regulation and enforcement of the treaty to make the scheme work.

Yet legal authority still springs from national sovereignty. Over the long history of the West, constraints have been developed to require domestic agents to deploy sovereign power for the public good. While in the United States these constitutional structures have been adapted to facilitate administrative government by delegating rulemaking and adjudicatory power to domestic agents, they have not seriously confronted the issue of delegating binding domestic power to international agents. Nor have international structures, for the most part, incorporated separation of powers or other constitutive mechanisms to require international agents to act for the public good.

International delegation of domestic power thus presents a dilemma for the separation of powers in an age of globalization. Delegation of legislative and executive power to international agents, including international courts, is likely necessary to address international coordination issues such as resolving problems of the global commons, like pollution. Yet such delegations raise dramatic problems of agency costs, because international agents' work is less transparent and less subject to control than domestic agents' work. Moreover, delegations create a substantial democratic deficit: the American democratic process by itself cannot control the international agent's exercise of authority, and nondemocratic states may exercise influence on the agent's appointment and decisions.

The question posed by such international delegations is much the same as that posed by the New Deal: how to permit effective governance while preserving the democratic accountability and constraints on interest groups provided by the U.S. Constitution. (1) In a world where the judiciary cannot itself easily evaluate the need for international delegations but has reason to suspect that legislators will not internalize the costs to constitutional values, one way to achieve this objective is to raise the costs of enacting international delegations. Such rules would help assure that international delegations will be used only after substantial deliberation and only in circumstances in which they are likely to have substantial benefits. (2)

The recent decision in Medellin v. Texas (3) reflects the U.S. Supreme Court's initial attempt to address the emerging problem of international delegation through a rule that imposes greater enactment costs on a provision that delegates binding domestic power to an international agent than on a provision that does not provide such a delegation. On its surface, Medellin creates two doctrinal puzzles. The Medellin majority required the equivalent of a clear statement before it would find that the treaties at issue gave domestic effect to the judgment of the International Court of Justice (ICJ). Yet the Medellin dissent correctly observes that such a requirement is more stringent than the rule the Court has traditionally applied in determining whether treaties are self-executing. The Court also rejected the argument that the President can give the ICJ's decision domestic effect with priority over state law. Yet, other recent cases have permitted executive foreign policy decisions to override state laws.

The salient difference from other cases that explains the result in Medellin is that the question at issue under the treaty was whether it delegated binding domestic authority to international agents--in this case, the ICJ. Because international delegations raise problems of democratic accountability and potential interest group exaction, the heightened standard for self-execution in the international delegation context helps to assure that legislative consent to the delegation is actual, deliberative, and transparent, thereby raising its costs of enactment. In contrast, permitting the President to bless delegations by himself would permit delegations that reflect lower enactment costs than ordinary legislation because executive authorization does not surmount either the treaty ratification process or bicameralism. Thus, if such delegations are to be effectively constrained, the President does not deserve the same latitude of deference as he does for a policy for which he alone is accountable. Understanding Medellin as the first jurisprudential foray into regulating consent to the domestic force of international delegation helps to dissolve its doctrinal perplexities.

The clear statement requirement of Medellin sets the stage for further debate about policing international delegations of domestic authority. While the Justices in Medellin all appeared to assume that a legislative process was available to delegate adjudicatory authority with binding domestic effect to the ICJ on this matter, other scholars have disputed the ability of Congress to delegate any binding authority to international agents. (4) This view would categorically prohibit international delegations. Others argue that such delegations raise no serious constitutional questions and can be enacted through either treaty or congressional-executive agreement. (5)

In this Essay, I propose a third model that argues that such delegations are constitutional but only if expressly made through the treaty power. There is a good argument that the Constitution, as originally understood, requires the use of the treaty power to authorize an international tribunal or international agent to make decisions that can change the rights and obligations of U.S. citizens without the approval of our own political branches. If advice and consent under the Treaty Clause were required, international delegations would always require two-thirds of the Senate for consent. This supermajority rule also has attractions as a policy matter, because the higher hurdle of a supermajority rule may reduce the problem of democratic deficit and impede delegations that have high agency costs.

The relation between domestic law and international law is famously a "two-level game." (6) U.S. rules constraining international delegation domestically will influence in turn the development of international mechanisms to constrain international delegation. Because the United States remains the most important nation in the world, these latter rules will be shaped by the interest the international community has in obtaining her consent to international delegations with domestic effect. Thus, the rules imposing additional costs on consenting to binding international delegations may provide incentives for nations to improve these delegations' quality by building into them internal checks and balances.

Part I of this Essay describes the necessity and dangers of international delegation and shows why delegations to international courts are not different in kind from those to international agencies in terms of the problems of democratic deficit and agency cost exaction that they may cause. Part II analyzes Medellin from the perspective of international delegations and demonstrates that this analysis clarifies its otherwise odd doctrinal departures from previous law. Part III discusses various models through which the judiciary might reconcile international delegation of binding domestic power with constitutional principles. Specifically, it considers four models: (1) a model in which delegations would be permitted under congressional-executive agreements or treaties so long as the agreement or treaty contained a clear statement providing for the delegation, (2) a categorical prohibition model, (3) a categorical permissive model, and (4) a model permitting international delegations only through treaties. The administrative law model's requirement of a clear statement would be compatible with the treaty model, as Medellin itself shows.

In an Essay of this length, it is impossible to prove which model is superior, but Part III attempts to outline the pragmatic and positive considerations at stake in each model. It then considers how these models would in turn generate international constraints on the discretion of international agents who are to exercise binding domestic power. It ends by suggesting that the treaty model, a model that previously has not been defended, has the best grounding in the original understanding as well as a coherent and plausible policy case in its favor.

1. A COMPARISON OF DOMESTIC AND INTERNATIONAL DELEGATIONS

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