Trump vs. International Law: Reflections on the “Scorecard,” Transnational Legal Process and the Paris Agreement

[Jean Galbraith is a Professor of Law at the University of Pennsylvania Law School.]

What is the Trump Administration doing to U.S. foreign policy and more generally to the world? In his new book, The Trump Administration and International Law, Harold Hongju Koh tackles this question in a way that manages to be both deep and accessible, a scholarly accounting and an activist horn call. His answer is grim but not devoid of hope. President Trump’s impulsive behavior, strongman instincts, and emphasis on disengagement have taken a considerable toll on both U.S. foreign policy and the world, but the underlying global superstructure remains mostly in place. The Trump Administration is malevolence tempered not so much by incompetence (although there is that too) as by the centrality of the international legal order to U.S. foreign policy and by a many-pronged resistance that is defending this order.

For purposes of this review, I want to focus on three aspects of the book. One is Professor Koh’s discussion of the Trump Administration’s actions to date and the responses to these actions. This is the core of the book and a powerful contribution. The second is Professor Koh’s use of his theory of transnational legal process, and the third is Professor Koh’s legal reasoning with respect to President Trump’s authority to withdraw the United States from the Paris Agreement. I am more skeptical about these contributions, for reasons that I give below.

The Scorecard

This is not a book about why and how the United States came to elect Donald Trump in the first place. Aside for a few pages on anti-globalist trends and the rise of demagogues, Professor Koh’s focus is on the Trump Administration’s foreign policy practice. Here is his scorecard as of this summer, worth quoting at length:

“More than sixty executive orders with little real impact. Over thirty senior officials resigned and many others fired. A Travel Ban narrowly upheld by the Supreme Court, but returning for further litigation to the lower courts, where it has already been thrice blocked. Torture order: never issued and the torture ban reaffirmed by senior officials. Climate: a claimed withdrawal that will not go into effect until after the next presidential election. Trade agreements: still intact, with the United States sidelined from or seeking re-entry to the most recent arrangements. Iran nuclear deal: America withdrawn, but the battered deal still in place. North Korea: rhetorical saber-rattling, hasty summitry, and the value of that diplomacy still to be proven. Russian hacking: continued turmoil, many active investigations, indictments issued, and more coming. Ukraine: mobilizing transnational legal process on its own. Al Qaeda: Trump relaxing the Obama framework, with no visible strategy to close Guantanamo or end the Forever War. Islamic State and Syria: borrowing from Hillary Clinton’s playbook, but still lacking the smart-power plan that might achieve durable diplomatic outcomes. Not to mention many strained alliances with foreign governments, international organizations, Trump’s Republican allies, Congress, the law enforcement and intelligence communities, and the national and global media. Little progress on Trump’s core agenda. And all this less than halfway into a four-year term.”

Much of the rest of the book elaborates on this scorecard, describing the Trump administration’s actions, the applicable legal framework, and the domestic and international responses (typically pushback). This is not an ultimate reckoning, for all the obvious reasons of timing. There is also more defense of Obama administration actions than we might get from someone who didn’t serve in that administration and, as Professor Koh notes, there are points at which readers will disagree about the overarching law (as with the issue of humanitarian intervention) or the conclusions drawn on issues of policy. But as a mid-stream analysis, it is incisive, wide-reaching, and beautifully written.

The Separation of Foreign Affairs Powers and Transnational Legal Process

One way to understand the law and practice of U.S. foreign policy is to think in terms of the separation of powers, broadly defined: not just the courts and Congress, but also other countries, international organizations, aspects of the bureaucracy, states, localities, and other institutions on which our society is built. The resistance to President Trump relies on individuals channeling opposition through one or usually more of these institutions, which have legal or political power to prevent presidential actions or soften their effects. These institutions are often interconnected, and the same is true of the law that governs how they operate.

Throughout his book, Professor Koh considers how the separation of powers enables resistance, but he does so by using his theory of transnational legal process as an overarching frame. For me, this is a less successful aspect of the book. The theory is doing so much work that it is hard to get a handle on it. For one thing, while Professor Koh’s core discussion of this theory focuses on how international law gets internalized into domestic law, he acknowledges using it in practice to cover a much wider swath. As he notes, his case studies “might … [be read] as too loosely mixing international law and domestic law, and law, policy, and politics.” For another thing, Koh offers this theory as both a descriptive account and a normative vision. There are times when these two are in tension, leading to the obscuring of some descriptive features of U.S. law today, such as the difficulty of using international legal arguments directly in U.S. courts. To give one example, the normative idea of transnational legal process would suggest that the travel ban should have been litigated as an international human rights issue. In practice, however, the litigation had to be rooted in the Establishment Clause and administrative law arguments to prevail in the lower courts (and even these arguments, dismayingly, did not win a majority of the Supreme Court). Professor Koh gives a good description of this litigation, but he does not address the tension between his transnational legal process frame and the lines on which the litigation has had to proceed.

The Paris Agreement

The starkest example of the tension between the normative and the descriptive in Professor Koh’s discussion of transnational legal process occurs with respect to the Paris Agreement. Professor Koh states that, if President Trump does eventually give notice of U.S. withdrawal from the Paris Agreement, then “new litigation will almost certainly ensue to invalidate that notice, arguing that the president lacks constitutional power to withdraw from the Agreement without congressional participation.”

I am dismayed at President Trump’s announced plan of withdrawing from the Paris Agreement in the future. But I think that litigation along the lines that Professor Koh describes would be highly unlikely to succeed and undesirable. President Obama joined the United States to the Paris Agreement without getting specific approval to do so from Congress or the Senate.  I’ve written elsewhere in praise of this decision (and with respect for the brilliant lawyering that went into it). Given that neither Congress nor the Senate explicitly approved this decision, however, it seems utterly implausible that the courts would block President Trump from withdrawing from the Paris Agreement in accordance with its withdrawal clause.

In advancing his position, Professor Koh argues that Goldwater v. Carter is not much of a precedent and that we shouldn’t have a world in which President Trump can withdraw the United States “not just from the Paris Agreement but from the United Nations, the International Monetary Fund, the World Bank, the World Trade Organization, and NATO.” This sentence elides the distinction between the Paris Agreement – which was done without any specific approval from Congress and the Senate – and all the other agreements, which received such approval. Even assuming the courts would be willing to require congressional assent to withdrawal from agreements specifically approved by the Senate or Congress, it is a steep climb to get from there to such a requirement for the Paris Agreement. To make that step, the courts would not only have to push back on Goldwater and a lot of historical practice, but also embrace the power of one president to unilaterally lock her successor into an international commitment that international law itself authorizes that successor to escape. I think it is very unlikely that a district court would do this (and even more unlikely, should a stay issue, that the relevant federal appeals court or eventually the Supreme Court would let such a stay stand). Moreover, losing such a lawsuit might not be costless, as there is a risk that it could be seen by those not focused on the legal ins-and-outs as validating the withdrawal.

Not only do I think that such a case would fail, but I also think there are reasons that it should fail, even setting aside precedent and practice. If the presidents could unilaterally join the United States to multilateral agreements but needed Congress to withdraw from these agreements, this might very well make it harder for presidents to enter into commitments like the Paris Agreement in the future. The higher the substantive barriers to exit, the more reluctant the executive branch may be to enter into commitments, especially deep ones, in the first place (and the more emphatic Congress may be in efforts to block such commitments). I have suggested elsewhere that a better balance could be struck by stronger “internal procedural rules with respect to decision-making around exit.”

There is a crucial place for litigation with respect to climate. Professor Koh gives an excellent description of environmental litigation challenging the attempts of the Trump-era EPA to roll back earlier rules promulgated during the Obama administration. This litigation is formally grounded in U.S. administrative and statutory law rather than in the Paris Agreement or in the UNFCCC. This is the litigation that, if successful, will reduce how much irreparable damage the Trump administration does to our climate.

“As Donald Trump’s Presidency Careens into its Second Autumn …”

At the end of his 1922 treatise on The Control of American Foreign Relations, Quincy Wright concluded gravely that “The people and parties must insist on men of experience and tried capacity as candidates.” There’s sexism in this statement, and there’s truth in the rest of it.

We are living with a terrifying President, who lacks experience and capacity – and honesty, decency, judgment, compassion, and respect for the rule of law. Professor Koh aptly describes this presidency as “careen[ing] into its second autumn”. If the ship of state stays upright, it will be with no thanks to President Trump. I don’t agree with everything in Professor Koh’s book and have focused on some points of disagreement here. But these lines of disagreement are small compared to my appreciation of the overall project – and of Professor Koh’s tireless work to advance human rights and the international legal order.