The Missing D in U.s. Foreign Relations Law

The Missing D in U.S. Foreign Relations Law

DAVID H. MOORE*

United States foreign relations law once subsisted on the outskirts of

constitutional and international law. Now a recognized f‌ield of scholar-

ship in its own right, foreign relations law addresses some of the most

important questions of our time, such as whether the President may uni-

laterally conduct strikes against Iran or withdraw from the Paris Climate

Agreement. For all its importance, however, U.S. foreign relations law

has developed with blinders on. U.S. foreign policy embraces at least

three Ds: defense, diplomacy, and development. Yet foreign relations law

scholarship has approached the critical questions of the f‌ield almost

exclusively through the lens of defense and diplomacy. This Article high-

lights the missing D in U.S. foreign relations law and, in so doing, makes

two primary contributions.

First, the Article expands the f‌ield of foreign relations law to embrace

development fully and demonstrates how that embrace qualif‌ies the con-

ventional wisdom on core issues, such as the scope of presidential power,

the relationship between the President and Congress, and the role of

U.S. states and cities in foreign affairs. Second, the Article introduces a

new research agenda for foreign relations law scholarship. If foreign

relations law could signif‌icantly neglect an established component of

U.S. foreign policy for so long, what else is missing? Drawing on the

characteristics of development aid, the Article identif‌ies avenues for

research that may uncover further areas of neglect.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140

I. THE THREE DS OF UNITED STATES FOREIGN POLICY . . . . . . . . . . . . . . . . . 1143

A. ORIGINS OF THE “THREE DS” PHRASE. . . . . . . . . . . . . . . . . . . . . . . . . . 1143

B. DEFINITIONS OF DEFENSE, DIPLOMACY, AND DEVELOPMENT . . . . . . . 1145

C. THE THIRD D IN UNITED STATES FOREIGN POLICY. . . . . . . . . . . . . . . . 1146

* Sterling and Eleanor Colton Endowed Chair in Law, J. Reuben Clark Law School, Brigham Young

University; former Acting Deputy Administrator and General Counsel of the U.S. Agency for

International Development. © 2021, David H. Moore. For their helpful comments, I thank Evan Criddle,

Kristina Daugirdas, Bill Dodge, George Foster, Jean Galbraith, Don Gressett, Monica Hakimi, Chime

´ne

Keitner, Andrew Kent, Susan Pascocello, Mike Ramsey, Ryan Scoville, and David Stewart. I also thank

Diana Flores, Haley Holloway, Rhett Hunt, Taylor Larsen, Alyssa Nielsen, Charles Sherrill, Jackson

Skinner, April Tansiongco, Kyra Waring, and Chery Yang for excellent research assistance and Shawn

Nevers for exceptional library support. This Article is dedicated to Natalie Anne Burton Moore.

1139

II. U.S. FOREIGN RELATIONS LAW’S FOCUS ON DEFENSE AND DIPLOMACY . 1148

III. FOREIGN RELATIONS LAW THROUGH THE LENS OF DEVELOPMENT . . . . . . 1151

A. THE PRESIDENT’S CONSTITUTIONAL POWERS IN FOREIGN AFFAIRS . . . 1151

1. Enumerated Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1152

2. Vesting Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1155

a. Philosophical Understanding of Executive Power. . . 1157

b. History of State Involvement in Development . . . . . . 1158

3. Take Care Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161

4. Historical Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1163

5. Functionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1164

B. RELATIONSHIP BETWEEN THE PRESIDENT AND CONGRESS . . . . . . . . . 1165

C. THE ROLE OF STATES AND CITIES IN FOREIGN AFFAIRS. . . . . . . . . . . . 1186

IV. A RESEARCH AGENDA FOR U.S. FOREIGN RELATIONS LAW . . . . . . . . . . . 1191

A. EXPANDING TO THE OPERATIONAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 1191

B. FOCUSING ON CONGRESSIONAL POWERS . . . . . . . . . . . . . . . . . . . . . . . 1193

C. UPDATING FOR RECENT COMPONENTS OF FOREIGN POLICY . . . . . . . . 1199

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1200

INTRODUCTION

Previously dwelling on the outskirts of constitutional and international law,

1

U.S. foreign relations law is now a f‌ield of study in its own right.

2

Its arrival

stems not only from the emergence of a cadre of dedicated scholars but also

from the growing importance of foreign affairs in an interconnected world.

1. See LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION, at viii (1972) (suggesting that, for

all but a few government attorneys, “the law of foreign affairs fell somewhere between the constitutional

lawyer and the international lawyer”).

2. See, e.g., Curtis A. Bradley, What Is Foreign Relations Law?, in THE OXFORD HANDBOOK OF

COMPARATIVE FOREIGN RELATIONS LAW 3, 8–13 (Curtis A. Bradley ed., 2019) (discussing the

emergence of U.S. foreign relations law as a f‌ield of study and concluding that it has existed since at

least the 1950s, though the f‌irst textbook did not appear until 1987). Indeed, U.S. foreign relations law

has recently given rise to comparative foreign relations law. See id. at 7 (introducing the book’s focus as

the “commonalities and variations in . . . foreign relations law across national jurisdictions”).

1140 THE GEORGETOWN LAW JOURNAL [Vol. 109:1139

Foreign relations law explores the legal boundaries within which the United

States conducts foreign relations.

3

The constitutional questions presented are

some of the most pressing of our time: may the President withdraw from the Paris

Climate Agreement?

4

The Iran Nuclear Deal?

5

Must Congress authorize the

President to conduct strikes against Iran or commit troops to Syria?

6

May interna-

tional human rights claims be heard in U.S. courts?

7

May individual states, such

as California, pursue international climate standards that the federal government

has not?

8

These sorts of questions—collectively addressing the distribution of

foreign affairs powers between the President, Congress, and the courts; the rela-

tive foreign relations roles of state and federal governments; and the domestic

legal status of international law—are the focus of U.S. foreign relations law.

9

They have reached the Supreme Court with increasing frequency in recent

years.

10

3. See, e.g., CURTIS A. BRADLEY, ASHLEY S. DEEKS & JACK L. GOLDSMITH, FOREIGN RELATIONS

LAW: CASES AND MATERIALS, at xix (7th ed. 2020) (explaining that U.S. foreign relations law

“examines the constitutional and statutory law that regulates the conduct of U.S. foreign relations”);

Bradley, supra note 2, at 3 (def‌ining foreign relations law as “the domestic law of each nation that

governs how that nation interacts with the rest of the world”).

4. See, e.g., Lisa Friedman, Trump Serves Notice to Quit Paris Climate Agreement, N.Y. TIMES (Feb.

21, 2021), https://www.nytimes.com/2019/11/04/climate/trump-paris-agreement-climate.html.

5. See, e.g., Mark Landler, Trump Abandons Iran Nuclear Deal He Long Scorned, N.Y. TIMES (May

8, 2018), https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.html.

6. See, e.g., Charlie Savage, Iran and Presidential War Powers, Explained, N.Y. TIMES (Jan. 9,

2020), https://www.nytimes.com/2020/01/06/us/politics/war-powers-resolution-iran.html.

7. See, e.g., Curtis A. Bradley, The Costs of International Human Rights Litigation, 2 CHI. J. INT’L L.

457, 458, 473 (2001) (suggesting that Congress should decide the scope of international human rights

litigation in U.S. courts given the costs of that litigation).

8. See, e.g., Hiroko Tabuchi & Coral Davenport, Justice Dept. Investigates California Emissions

Pact That Embarrassed Trump, N.Y. TIMES (Sept. 6, 2019), https://www.nytimes.com/2019/09/06/

climate/automakers-california-emissions-antitrust.html (reporting that the federal government invoked

antitrust law to scrutinize a recent deal between California and four signif‌icant automakers to lower auto

emissions).

9. See BRADLEY, DEEKS & GOLDSMITH, supra note 3, at xix; see also Bradley, supra note 2, at 4

(highlighting the distribution-of-authority questions on which foreign relations law focuses).

10. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (dissolving a preliminary injunction

against President Trump’s revised travel ban); Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403, 1407

(2018) (concluding that foreign corporations cannot be sued for international human rights violations

under the Alien Tort Statute); Zivotofsky v. Kerry, 135 S. Ct. 2076, 2094, 2096 (2015) (holding that the

President alone has the authority to recognize foreign states); Bond v. United States, 572 U.S. 844, 859–

60 (2014) (applying a federalism canon of statutory construction to limit the reach of a federal statute

implementing treaty obligations); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 117 (2013)

(limiting international human rights litigation under the Alien Tort Statute by applying the presumption

against extraterritoriality); Arizona v. United States, 567 U.S. 387, 410, 416 (2012) (restricting state

involvement in immigration enforcement); Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 265 (2010)

(constraining the extraterritorial application of U.S. securities law); Samantar v. Yousuf, 560 U.S. 305,

314–15 (2010) (concluding that the Foreign Sovereign Immunity Act does not govern foreign off‌icial

immunity); Boumediene v. Bush, 553 U.S. 723, 795 (2008) (f‌inding that the constitutional right to

habeas extends to foreign nationals detained at Guanta

´namo Bay); Medellı

´n v. Texas, 552 U.S. 491,

506–14 (2008) (addressing whether treaty obligations are self-executing); Hamdan v. Rumsfeld, 548 U.

S. 557, 594–95, 635 (2006) (limiting the Executive’s ability to try foreign nationals by military

commission); Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33, 738 (2004) (permitting, with constraints,

the creation of federal common law causes of action based on the customary international law of human

2021] THE MISSING D IN U.S. FOREIGN RELATIONS LAW 1141