Structuralism and Constitutional Limits on the Extraterritorial Exercise of Power

by Roger Alford

Raustiala’s book is about the scope of constitutional protections applied abroad. I did not find much in the book addressing whether the Constitution imposes limits on the extraterritorial exercise of federal power. Why is that?

We have a robust and well-developed Interstate Commerce Clause jurisprudence, but we have precious little guidance as to the scope or even theory of the Foreign Commerce Clause. Can we say that there are constitutional limitations on the exercise of legislative authority outside of our borders based on the Foreign Commerce Clause? I would think that just as the Interstate Commerce Clause has limitations based on the traditional powers of the several states, that the Foreign Commerce Clause imposes limitations on the power of the federal government to act abroad out of respect for the traditional powers of other nations to regulate conduct within their borders.

The same goes for executive power. If one of the core theories of executive power–as articulated in Curtiss-Wright–is that executive power inheres in fundamental notions of national sovereignty, then wouldn’t that theory also incorporate an understanding of limitations on executive power exercised abroad based on the relationship of our sovereignty and the sovereignty of other nations?

Put simply, why are questions of constitutional structuralism always treated as vertical questions vis-à-vis the several states, or as horizontal questions vis-à-vis the federal branches, but rarely if ever as horizontal questions vis-à-vis other nations? I don’t have a theory as to how this would play out, I’m just surprised that it is never really discussed.

http://opiniojuris.org/2009/07/29/structuralism-and-constitutional-limits-on-the-extraterritorial-exercise-of-power/

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