Bradley Book Symposium: Kristina Daugirdas on Delegations to International Institutions

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law]

I’m delighted to have the opportunity to comment on Professor Curt Bradley’s excellent new book. Before getting to the question of how the decisions and orders of international institutions are integrated into U.S. law—Professor Bradley’s main focus in this chapter—it’s worth pausing to consider why states bother to create international institutions at all. States could have drafted a series of treaties that simply codified substantive obligations relating to various issue areas. Instead, they created institutions and delegated authority to them to do things like monitor how diligently states are implementing their international obligations, resolve disputes about the scope of those obligations, and revise those obligations in response to new technological developments or growing scientific knowledge. These delegations can make the regimes more effective by spurring compliance and ensuring that states’ international obligations remain current.

It’s exactly the features that make international institutions so useful that raise constitutional questions for the United States. For example, the Chemical Weapons Convention (CWC) establishes a Technical Secretariat whose tasks include monitoring states’ compliance with their obligations. This inspection regime makes the CWC more effective by increasing the likelihood that noncompliance will be exposed. But some scholars have argued that these provisions are incompatible with the Appointments Clause (because the inspections are undertaken by international officials) as well as the Fourth Amendment’s protections against unreasonable searches and seizures.

Professor Bradley canvasses the entire range of constitutional problems that may be triggered by delegations of authority from the United States to international institutions, and finds that the constitutional problems usually fade away when international delegations are considered in their full context including relevant legislation, judicial decisions, and historical practice. Congress’s actions play a particularly important role in mitigating constitutional concerns. Take the CWC. Congress took pains to address potential constitutional difficulties by requiring, among other things, that all nonconsensual private inspections be undertaken pursuant to warrants issued by U.S. judicial officials. Problem solved.

Professor Bradley closes by emphasizing the important role that non-self-execution plays in mitigating constitutional concerns associated with international delegations. When the orders or decisions of international institutions are not self-executing, courts won’t enforce them unless and until Congress adopts implementing legislation. This is desirable, he writes, because it ensures that international decisions and orders are subject to “the filter of the U.S. democratic process.” (p. 134) Professor Bradley reports that some commentators—himself included—have therefore endorsed a presumption that the orders and decisions of international institutions are not self-executing.

When the decisions and orders of international institutions are not self-executing, Congress’s participation becomes essential if the United States is to comply with its international obligations. But can we count on Congress to fulfill this role? This is a key question that Professor Bradley’s proposal raises—and one that he doesn’t address. Consider a few different kinds of statutes that Congress might draft: (1) legislation that implements a specific decision by an international institution; (2) legislation that precommits the United States to implementing all decisions of that same institution; or (3) legislation that authorizes but does not require the executive branch to implement those decisions.

Relying exclusively on the first type of statute would require a steady stream of new legislation. The United States participates in manifold international institutions, and many of these institutions regularly adopt decisions that revise the United States’ international obligations. Professor Bradley acknowledges that, as a baseline matter, it’s not easy for Congress to legislate. “Political and resource constraints, and institutional inertia more generally, often make it difficult for Congress to override the status quo.” (p. 101) Whenever an international obligation is not self-executing, Congress would have to overcome these obstacles. If it fails to legislate, Congress puts the United States in breach of its international obligations, and undermines the precise features of international institutions that make them valuable and effective.

The second option—legislation that precommits to complying with decisions by an international institution—would solve some of the problems associated with the first. Congress’s workload would be more manageable: it would only need to pass one piece of implementing legislation per international institution. Some scholars have argued, however, that this kind of implementing legislation recreates the problem of unconstitutional international delegations instead of solving it. The D.C. Circuit has embraced this position. In Natural Resources Defense Council v. Environmental Protection Agency, it rejected an argument that legislation implementing the Montreal Protocol on Substances that Deplete the Ozone Layer required the EPA to implement future revisions to the United States’ obligations. According to the court, interpreting the statute that way would raise significant constitutional problems. It would mean that “Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification, in violation of Article II of the Constitution.” I’ve argued elsewhere that this position is wrong; if this position carries the day, however, then the second option isn’t available.

The third option, where Congress authorizes but does not require the executive branch to implement revised or new international obligations, addresses the concern that congressional legislation would replicate constitutional problems instead of curing them. Under this option, the executive branch would continue to “filter” new and revised international obligations; they wouldn’t automatically become a part of U.S. law. And, like the second option, this option would place more manageable demands on Congress. But the third option may well exacerbate a separate, more general concern that Professor Bradley and others have identified with respect to U.S. participation in international institutions—that they enhance the power of the executive branch at the expense of Congress. Once it passes this type of implementing legislation, Congress may find itself sidelined, with little opportunity to influence U.S. participation in the relevant international institution. (In fact, this prospect may dissuade Congress from adopting such legislation in the first place.)

The options described here are, of course, oversimplified. And Congress has tools besides implementing legislation available to it to influence international organizations. (In a forthcoming article, I argue that Congress has deployed these tools quite effectively with respect to the World Bank.) Professor Bradley acknowledges that non-self-execution is no panacea, but the consequences of a presumption against self-execution may be more troubling that he acknowledges. Especially if option two-style precommitment legislation is off the table, there’s a serious risk that a presumption against self-execution would set the United States up for failure in meeting its international obligations.