The problem is particularly stark when posed internationally. The D.C. Circuit has said that treaties implemented by American agencies, whose status as a matter of American law is not entirely clear, pose "serious constitutional questions in light of the nondelegation doctrine...," (94) As Julian G. Ku has argued, "Unlike delegations within the federal government, or to the states or private organizations, international delegations are made to international organizations largely independent of other mechanisms of federal control." (95) Curtis Bradley has agreed that "transfers of authority by the United States to international institutions could be said to raise 'delegation concerns.'" (96) The problem identified by both Ku and Bradley is rooted in the conception that international grants are different than domestic ones. While delegations to the states, or the executive, even if exceptionally broad, do not raise the specter of entirely undemocratic outcomes, delegations to foreign regulatory bodies remove the decision maker from the polity altogether.
The delegation concern most posed by the internationalization of policymaking is subdelegation by an agency to an outside body, rather than nondelegation. That doctrine is epitomized by the D.C. Circuit decision reversing an FCC order in which it subdelegated some of its rulemaking power under the Telecommunications Act of 1996 to state public utility commissions. (97) Specifically, the court concluded that a subdelegation of authority, when made to an actor outside of the federal government required "an affirmative showing of congressional authorization." (98) The court's "affirmative showing" requirement rested on a few basic principles of good governance:
When an agency delegates authority to its subordinate, responsibility--and thus accountability--clearly remain with the federal agency. But when an agency delegates power to outside parties, lines of accountability may blur, undermining an important democratic check on government decision-making. Also, delegation to outside entities increases the risk that these parties will not share the agency's "national vision and perspective," and thus may pursue goals inconsistent with those of the agency and the underlying statutory scheme. (99) This subdelegation doctrine is not only a domestic matter; it has already been deployed to slow precisely the sort of international regulation subject to the sovereignty mismatch problem. In Defenders of Wildlife v. Gutierrez, the D.C. Circuit warned the Coast Guard against a subdelegation of authority to the International Maritime Organization. (100) Specifically, it warned that "if the Coast Guard had delegated some or all of its decisionmaking authority under the Ports and Waterways Safety Act to an outside body not subordinate to it, such as the International Maritime Organization, the delegation would be unlawful absent affirmative evidence that Congress intended the delegation." (101) While the nondelegation doctrine is not vibrant, at least as a winning argument in litigation against the government, the subdelegation of agency power to other sovereigns outside the federal government has a stronger track record.
The Appointments Clause, at least as interpreted by the Supreme Court, forbids Congress, or anyone else, from interfering with the President's power to appoint senior federal officials--so-called "Officers of the United States," who must also be subject to Senate confirmation. (102) Appointments Clause problems have prevented the creation of a Federal Election Commission led by officials appointed by Congress, for example. (103) The legal test turns on a functional inquiry, concerning whether constraining the ability of the President to nominate the officers for a particular office would impinge too much on the executive's core powers (104)--a pretty imprecise balancing test to be sure. Because the Appointments Clause anticipates that some federal officers will not need to be appointed by the President (it allows for appointments by the "Heads of Departments" and courts), (105) this test has not been a particularly difficult one to meet.
Nonetheless, it works, in reality, to bolster some of the principles behind the nondelegation doctrine. Just as Congress cannot give away a massive quantity of its legislative powers, nor can it create institutions that would supplant the powers that used to belong to the executive branch. John Yoo has accordingly argued that the Appointments Clause might be violated if the United States joined a treaty creating a secretariat staffed with officials who could then oversee Americans. (106) Curtis Bradley, who was particularly worried about treaty-style delegations like Kyoto, has explained the Appointments Clause issue with international delegation as follows:
In addition to potentially falling within the formal terms of the Appointments Clause, international delegations may also implicate the functional policies of the clause. The requirements of the clause, the Supreme Court has explained, are designed both to prevent aggrandizement of power by one branch at the expense of another and to ensure public accountability in the appointments process. According to the Court, the clause "reflects [our] Framers' conclusion that widely distributed appointment power subverts democratic government." Thus, even when there is no interference with executive branch prerogatives, the clause "prevents Congress from dispensing power too freely; it limits the universe of eligible recipients of the power to appoint." (107) One can, of course, imagine that the functional policies of the Appointments Clause appear with even greater effect when the party vested with the power is not even subject to the laws of the United States.
And so the Appointments Clause issues look a bit like the delegation, both sub- and non-, issues. The decision by Congress or an agency to give policymaking authority to informal international regulatory efforts could, if the grant is large enough, take core executive functions away from the President, and therefore implicate the clause similar to the way it could create delegation problems. If implicated, the clause would require presidential appointment and Senate confirmation of the international official, hard though it is to imagine such a scenario.
The Appointments Clause is no dead letter, (108) but its applicability to the international context, where the executive branch has special foreign affairs authority, is more problematic. Indeed, there has never been a case successfully brought against institutions like NATO, where foreign generals frequently command Congressionally-appointed American ones. (109) It is hard to imagine that the Congressional voice provided by the Appointments Clause must be vindicated in building complex relationships with foreign states in many international contexts. Regulation, however, is a more interesting question, given the importance of the Congressional voice in setting international economic policy. Accordingly, for the ever increasing cooperation in issues like money laundering (where the UN Security Council has the putative power to direct American officials to freeze the assets of American citizens suspected of terrorism), (110) let alone for cooperation in more lowly matters of financial stability, it is a question to which government lawyers will need to provide an answer.
The Constitution's requirement that citizens, including corporations, not be deprived of their property without due process is also implicated by international rulemaking, which only occasionally offers such protections voluntarily. The problem is not hard to discern: as regulatory globalization involves policymaking affecting the property interests of American firms and citizens, those parties might expect to have a pre-deprivation notice of the scheme and "some sort of hearing" If their property turns out to be at risk. (111)
Determining the kind of process due in these cases usually requires a look at the oft-invoked three-factor test in Mathews v. Eldridge:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (112) Due process's reach in international matters depends, as we will see, on the matter at issue. In American administrative law jurisprudence, it is invoked to protect citizens faced with individualized determinations of their rights and duties--and much of the sovereignty mismatch problem involves rules affecting the many, rather than adjudications affecting the few.
But American rulemaking procedures are meant to meet due process requirements, and regulatory globalization does not feature those requirements. (113) Rather than conforming to some American variant of the process required for rulemaking, the international versions are, if anything, orthogonal to it--they certainly make no claim that regulatory globalization pays any attention to domestic due process concerns, even though they clearly act in ways that affect the property rights of American citizens, and do so casually and informally regulated industry--the sort of industry most affected by regulatory globalization--is afforded the protections of the Due Process Clause. (114) If a process that has been tasked to international policymakers affects that industry's rights, then due process protections apply.
Moreover, although due process is not a particularly easy claim to win in aggregation, it is, as the baseline constitutional guarantee that underlies much of domestic administrative procedure, a doctrine that could...