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Eric Posner’s Not Completely Wrong Critique of International Human Rights Law Clinics

by Julian Ku

[I posted this last week, or I thought I did, but somehow it ended up staying hidden in the bowels of OJ’s archives. So although it is a little late, I am posting this again today.  -Julian]

As is his wont, U. Chicago law professor Eric Posner has hit a nerve with his recent Chronicle of Higher Education essay criticizing the value of international human rights law clinics at many law schools.  As part of his larger critique of international human rights law in general, Posner argues that most international human rights law school clinics “engage in a bewildering array of programs and strategies that have little in common but a left-wing orientation.”   Many (maybe most) of these clinics, Posner argues, engage in wide-ranging left-wing political advocacy with no particular focus on training students with legal skills. Crucial to his argument is that, unlike regular domestic law clinics, international human rights law is such a fuzzy unsettled and undeveloped area of law that there are few concrete legal skills that are teachable in such clinics.

His essay has drawn a sharp reaction (of course) from those who are involved in these clinics.  Most prominently, Sital Kalantry, the founder of a new international human rights clinics at U. Chicago Law itself, argues that Posner doesn’t understand what such clinics do and, in any event, his attack on clinics rests entirely on his (misguided) attack on international human rights law itself.

As always, I am sympathetic to Posner’s views here and admire his willingness to take on yet another sacred cow.   But even I think his attack on international human rights clinics sweeps a bit too broadly.  Under his view of the role of clinics and legal education, narrowly focused clinics would satisfy his standard.  My law school (Hofstra) has a just such a clinic focused on asylum hearings in deportation proceedings within the US immigration law system. Students learn a great deal about how to handle real clients, draft legal papers, and make arguments, before mostly administrative law judges.  But since asylum claims almost always require invocation of international as well as domestic law standards in order to determine whether asylum should be granted, it is also sort of an international human rights law clinic.

I do agree with Posner that it is possible that some international human rights law clinics, like that at my alma mater Yale, have extremely broad mandates to pretty much do anything from filing briefs in domestic litigation and suing their former alums, to lobbying city councils to adopt human rights standards to issuing reports on international law. And these clinics are very close to pure political advocacy groups. But these more ambitious clinics are probably inspired by freestanding non-governmental organizations like Human Rights First or Human Rights Watch, whose lawyers also engage in  broad range of non-lawyering political advocacy.  And they also are within the orbit of the larger universe of UN-affiliated NGOs and UN human rights institutions.  Should law students really be training to do the same type of stuff? I think this depends on the particular situation of the law school and the goals of its students.  I think a narrower clinic is probably better in most cases, but I am not ready to say that it would never be appropriate to have a broad-based international human rights law clinic, and that there would never be any useful legal education occurring in that clinic.

But I think Posner’s critique reminds us that international human rights law clinics are outside the traditional box of law school clinics, and that they do risk becoming a platform for pure political advocacy (and training students in pure political advocacy).  That is something that I agree is undesirable, and I am glad that his critics don’t dispute that point.  Even international human rights law clinics deserve scrutiny and to be held to the same standards as other law school clinics.

Law schools need to make hard assessments about whether such clinics are worth it for their students, and perhaps demand such clinics ensure that a certain percentage of their work is indeed traditional legal skills training (like a political asylum clinic, etc.).  Posner asks the right questions, even if I think his final answer is not quite right.

Obama’s Immigration Action: (Probably) Constitutional

by Peter Spiro

I was quoted in the NY Times on Friday on Obama’s executive action on immigration to the effect that it is unprecedented in scale and formality. I’ll stick to that position, but that doesn’t mean that I think that the executive action is unconstitutional. Just a few thoughts to clear that up (especially since David Brooks used the quote on NPR to support his position against the action).

The action may be unprecedented, but not in a discontinuous way. The media is full of discussions of prior “deferred action” programs, most of them involving global hot spots. Immigration enforcement has always been severely underfunded, which has demanded systematic identification of enforcement priorities. Once a matter of internal administrative guidance, since John Lennon forced transparency in the early 1970s these priorities have been a matter of public record.

But there’s never been anything like this in terms of numbers. More important, no president has undertaken this kind of program in the face of this kind of opposition. No other president appears to have used executive action to break a legislative logjam.

Consider the “Family Fairness” program undertaken by the George H.W. Bush administration in February 1990 to protect spouses and children of those whose status was regularized under the landmark 1986 legislation, a precedent that got a lot of play last week. The action affected a large number (as many as 1.5 million). It also involved work authorization. But the action appears to have been utterly uncontroversial. The action was announced by the commissioner of the INS, not the White House. The NY Times item reporting the action (published on page 28) did not so much as mention George Bush much less any opposition to the move. Subsequent legislative validation was hardly reported at all (it was part of a package that increased annual legal immigration quotas). In short, the Bush administration move was uncontested. (UPDATE: The Washington Post debunks the 1.5 million figure here. It was probably under 100,000, which helps explain the absence of controversy.)

That makes it a pretty weak precedent. The Obama action, to say the least, is being vigorously contested. It doesn’t mean Obama’s action is unconstitutional. It means that the Obama action is provisional. It could be overcome.

The courts will stay away. It’s not clear who would have standing to challenge the action. Even if a court got to the merits, there is recent precedent (the 2012 decision in Arizona v. United States) clearly inscribing the president’s prosecutorial discretion over immigration enforcement.

Congress will have to carry its own water in overcoming the Obama move, with assists from other elites and the public at large. I’m not sure what it would take beyond an improbable defunding. We may see non-binding “sense of” resolutions decrying the action in constitutional terms. Those would count for something as formal institutional pronouncements.

The ultimate test may be whether Congress eventually comes on board and fully regularizes the status of beneficiaries of the executive action. No Republican president is going to reverse the action and start deporting these sympathetic people. But that doesn’t mean Congress will adopt Obama’s action as a matter of law. Listen for those (like David Brooks) who favor real immigration reform but oppose the Obama move. That’s the control group on the constitutional issue.

Meanwhile, immigrants covered by the executive action are definitely better off for it. But their status will still be second-class. The government will discriminate against them on benefits like health care, and of course they won’t have the vote. Their ultimate status may depend on whether Obama’s constitutional gambit is a successful one, and everybody falls into line with it.

Rob Howse Guest Blogging This Week

by Kristen Boon

It’s my pleasure to announce that Rob Howse will be guest blogging on Opinio Juris this week.  Rob is the Lloyd C. Nelson Professor of International Law at NYU, and a specialist in international trade and investment law.  He is also the author of a new book in political philosophy entitled Leo Strauss Man of Peace published by Cambridge.   A great interview with Rob on the book can be found here.

As his CV attests, Rob is both a prolific scholar and an active practitioner who has been involved in  a wide range of cutting edge legal disputes.  It is our pleasure to welcome Rob to Opinio Juris this week.

Guest Post: The ILC Project on the Identification of Customary International Law–Saving the Temple from Submergence

by Duncan French and Jean d'Aspremont

[Duncan French is the Head of Law School and a Professor of International Law at the University of Lincoln and Jean d’Aspremont is a Professor of International Law at the University of Manchester and a Professor of International Legal Theory at the University of Amsterdam.]

The two-day expert seminar on the identification of customary international law, co-organised by Lincoln Law School and the Manchester International Law Centre, took place on 13-14th November at the University of Lincoln. With the active participation of Sir Michael Wood, the Special Rapporteur of the International Law Commission (hereafter ILC) on the issue, the seminar witnessed the contribution of over 25 international lawyers from around the United Kingdom. Discussions focused on Sir Michael’s second report, the eight draft conclusions adopted by the ILC drafting committee and those issues yet to be considered in the preparation of the third report.

A blog for Opinio Juris in advance of the seminar entitled “Amidst the Academic Mania for the Identification of Customary International Law–The ILC and the Operative Value of Distinctions” had flagged many of the salient matters discussed during the seminar. As could be anticipated, interventions were made on the methodological aspects of the “two element” approach to the identification of customary international law, the role of international organizations in the determination of customary international law, inaction and acquiescence, and how customary international law has developed within particular areas of international law, notably in the economic and environmental spheres. There was also more wide-ranging discussion on, inter alia, the notion of opinio juris, the scope of the ILC conclusions, whether the development of human rights has impacted upon the identification of customary international law, international organizations, non-state actors, the role of the persistent objector, the relevance of specially affected states, the temporal inter-relationship between state practice and opinio juris, and the existence of special/local/regional custom, etc.

It is beyond the purpose of this blog to revisit the depth and richness of these exchanges. It will limit itself to formulating four sets of remarks.

First, there was general agreement among the participants that the scope of the ILC codification exercise is rightly restricted to the identification of customary international law. This was perceived as a pragmatic, and reasonable, delimitation. Nevertheless, it was acknowledged that one could not always easily distinguish between the formation, the identification and the evidence of customary international law. In that sense, it was highlighted that the current title was too narrow, and that, in the French text, the word (‘détermination’) captured more accurately the more nuanced and various complexities of the question. And this was not the only issue arising in the respective translations. The importance – both conceptually and practically – in the assessment of evidence in identifying customary international law [draft conclusion 3] takes on a subtly alternative understanding when interpreted as ‘áppreciation des moyens’.
Secondly, as indicated in the earlier blog, the practice and opinio juris of international organizations in the identification of customary international law – as distinct from the acts of States within and through such organizations – proved particularly contentious and triggered a lot of debate. The contribution of international organizations primarily raises the question as to whether the practice and opinio juris of international organizations should contribute generally to any customary rule, or only when it concerns the development of rules that will also bind international organizations. The Special Rapporteur and several participants indicated that, in their view, an organization can only contribute to the formation of a rule of customary law which it can potentially be bound by. This has to do with the self-commitment at the heart of the doctrine of customary international aw. It is also perhaps as a matter of equity between participants in the international legal system.

Equally, there was discussion as to which international organizations can contribute to the formation of customary international law. Legal personality is a seemingly determinate variable. Yet, a question remains as to whether there is a significant difference between organizations with a high degree of autonomy, those with more independent-minded secretariats and those international organizations that are member-state driven. It seems axiomatic that the greater the autonomy, the greater the extent to which the practice and the opinio juris of an international organization itself (in contrast to the acts of its members within the context of the organization) should contribute to customary international law.

The point was also made (more…)

Kuwait Bulk-Orders Comoros Citizenship for Stateless Bidoon

by Peter Spiro

Citizenship for sale schemes have become an increasingly common phenomenon as the rich from non-Western states look to upgrade their travel privileges. The likes of Malta, Cyprus, and St. Kitts have had some success selling citizenship to plutocrats from Russia, China and other non-visa waiver countries. The revenues supply a nice fiscal bump at low marginal cost to these small states. The price is fairly steep (more than a million Euros in the case of Schengen-advantaged Malta) but the number of buyers has been relatively small.

That’s cash-for-passports on a retail basis. We now have reports of the first wholesale purchase. Kuwait has long been criticized for its refusal to extend Kuwaiti citizenship to native-born tribal Bidoon, who as a result have been left stateless. (See this report from Human Rights Watch, for example.) Kuwait continues to deny the Bidoon Kuwaiti citizenship. But it is now moving to procure them citizenship in the Comoros. Kuwait purports to solve the statelessness problem. The Comoros (not a rich country) gets a couple of hundred million dollars for the favor.

Full report here from Atossa Abrahamian in Aljazeera America. Those Bidoon who accept Comoros citizenship will no longer be stateless, which will better their lot in place in Kuwait for things like health care. But human rights groups aren’t buying. The Comoros scheme will continue to deny the Bidoon access to citizenship in their place of habitual residence. That’s problematic as a matter of international human rights, which is beginning to assimilate an “access to citizenship” norm beyond the long-established regime against statelessness.

The transaction itself is probably consistent with international law. States have near-complete discretion with respect to the extension of citizenship. If the Comoros wants to sell nationality on a bulk basis to a group of people that have no ties to the Comoros, that’s its business, at least to the extent that the Comoros doesn’t try to assert the nominal nationality against other states (which would bring the ICJ’s Nottebohm threshold of “genuine links” into play). That’s highly unlikely, since the Comoros won’t have much interest in expending diplomatic resources on behalf of citizens with whom it has no organic social connection.

So the deal is likely to stick. It might even serve as a template for other states that host large stateless populations. Hard to argue that this doesn’t supply further evidence of citizenship’s degradation, but there’s not much to do about it.

 

New ICJ Judges Elected

by Kristen Boon

Congratulations to two new members of the bench of the International Court of Justice: James Crawford and Kirill Gevorgian.  Also, congratulations to Joan Donoghue and Mohammed Bennouna on their reelection.  The esteemed judges will commence 9 year terms starting in February 2016.

The voting process and requirements for election under the ICJ statute are described here.

Voting also took place for a fifth position on the bench, however one candidate received a majority in the Security Council and the other candidate received a majority in the General Assembly.   As a result, another round of voting is required to finalize the selection for the final position.  This is expected to take place later this month.

Update:  I’ve just seen that Dapo has a great post on the voting over at EJIL talk.   Highly recommended for a more detailed analysis.

Events and Announcements: November 9, 2014

by An Hertogen

Call for Papers

  • TDM will be publishing a Special Issue on the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA) and is hereby inviting contributions dealing with the Agreement and the issues raised by any of its chapters. Of particular interest in the investment chapter are clarifications brought to key substantive provisions such as fair and equitable treatment; the definition of investment, which refers to “income generating assets” in the sense used by economists; the fair and equitable standard, including manifest arbitrariness, targeted discrimination on manifestly wrongful grounds and abusive treatment of investors, and its interpretation by the contracting Parties; the definition of acts de jure imperii, and CETA’s detailed language on what constitutes indirect expropriation. Proposals or papers should be submitted directly to the co-editors – Herfried Wöss, Fabien Gélinas, Andrea Bjorklund, and John Gaffney – by January 15, 2015 – contact details on the TDM website.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Haiti Cholera Transcript

by Kristen Boon

For those following the developments in the Haiti Cholera Case, the transcript of the October 23, 2014 Oral Argument is now available.   It can be accessed here:  Oral Argument_Cholera Case 10.23. For my takeaway on this important hearing, please see my recent blog here.

Perhaps not surprisingly, the hearing garnered significant coverage in the main stream press.  At least one article suggested that Judge Oetken “wavered” on UN immunity.  In my opinion, this isn’t a correct depiction of his interventions.  He gave the plaintiffs a day in court, while giving no indication as to how he will rule.  Judge Oetken was clear that the plaintiffs have a steep hill to climb.  Nonetheless, he managed a politically sensitive case adeptly, by carefully examining the scope of the UN’s immunity under the Convention and Privileges and Immunities of the UN, and its obligation to provide appropriate modes of settlement under Article 29 of the same convention.   A decision is not expected before the new year.

Obama to Seek Congressional Authorization for ISIS Campaign

by Jens David Ohlin

Huge news coming from the White House last night and today: the President will ask Congress for specific authorization for military action against ISIS.

This is a welcome development. The White House had previously argued that military action against ISIS was already authorized under the 9/11 AUMF, the Iraq AUMF, or some combination of both. None of these arguments was particularly convincing. The 9/11 AUMF is inapplicable because ISIS was excommunicated from al-Qaeda long ago and is now a competitor to it. The Iraq AUMF is temporally and geographically problematic. The temporal problem stems from the fact that the Iraq war is over and the original authorization died with it. The geographical problem is that it is unclear why a congressional authorization to invade Iraq should give the White House authorization to fight a war in Syria. As a final matter, I’m not sure how mixing and matching the two authorizations helps matters in any meaningful way.

The White House says that Obama still believes that he has authority to engage ISIS even without a new authorization, which complicates how this incident should be viewed as precedent. If the request for authorization is indeed supererogatory, then Obama has at least preserved, for the time being, his broad interpretation of the prior statutory authorizations. Until they are repealed, this is still a relevant issue. However, his decision to go to Congress must carry some weight regardless of what he says about it being discretionary or not.

Will Congress pass an authorization? You bet. Everyone knows that ISIS is a regional threat and a growing threat to the homeland. Furthermore, I find Obama’s timing here somewhat curious. Apparently he was waiting until after the mid-term elections to announce that he was seeking congressional approval. I have no idea why (as a matter of politics). If he had sought authorization before the election and received it, this would have strengthened his image as a foreign policy president dealing with the most pressing and emerging threats. Furthermore, thinking of this as a “new” war helps his image. If it is viewed as an “old” war, he is open to criticism that the situation was caused by his failure to deal with the Iraq War appropriately. On the other hand, if Congress had denied him the authorization, he could have used that denial as a sword against the Republicans going into the mid-term elections.

The Defense Department Goes Clandestine

by Jens David Ohlin

Recent news reports indicate that the Defense Department is negotiating with members of Congress over plans to augment its Defense Intelligence Agency with a Defense Clandestine Service with about 500 undercover officers. The previous proposal had called for about 1000 officers in the clandestine service, but that proposal was met with substantial criticism.

This is a major development. There are multiple concerns. The first is money — running clandestine operations is not cheap. The second issue is reduplication. The Clandestine Service would be in addition to — and external to — the operations already provided by the CIA and Joint Special Operations Command, though obviously the hope is that there would be some meaningful cooperation between the services.

In the past, there has been much consternation of a blurring between Title 10 and Title 50 activities. Title 10 authorizes military operations conducted by the Defense Department, while Title 50 actions are covert and controlled by the CIA (though could make use of Defense Department assets, as was the case during the Osama Bin Laden raid). The usual occasion for this hand wringing is the increased role of the CIA in paramilitary (or even traditional military) activities. The criticism often heard is that the CIA has strayed far from its original mission as an intelligence agency and is now deploying force in areas of the world where the U.S. is unwilling or unable to publicly acknowledge its use of force.

The current proposal for a Defense Clandestine Service involves the exact opposite. Instead of the CIA getting involved in military activities, this time it is the Defense Department getting involved in intelligence activities. And while it has always been the case that the Defense Department has some intelligence capabilities (which is inherent in the process of target selection), the creation of an entire clandestine service indicates that the Defense Department wants to increase its capabilities in this area. Is this needed or is it a case of rival bureaucracies between the Pentagon and Langley?

One important note. The proposed Service would be clandestine in nature, but presumably not covert. That is an important distinction here. Its operatives would remain acknowledged as agents of the United States, and would presumably remain in uniform as military personnel (although the exact details are not clear). If the operatives were covert and not in uniform, this would pose a substantial threat to the culture and ethos of the uniformed military services — thankfully this is not part of the proposal as I understand it.  However, their operations will still be clandestine (secret) because their true missions would not be publicly disclosed. Although this mitigates some potential anxiety, it does not resolve all of it. Even an increased DoD presence in clandestine operations suggests that the federal government does not have a clear sense of the right dividing line between CIA and military responsibilities.

 

Zivotofsky and the Disaggregated State

by Peter Spiro

Transcript of today’s argument here. Scalia, Roberts, and Alito are siding with petitioner (and Congress), Kagan and Sotomoyor are with the Government. Breyer, Ginsburg, and Kennedy didn’t tip their hands clearly one way or the other.

A lot of speech-related framings. Zivotofsky’s lawyer argued that allowing “Israel” as a choice for those born in Jerusalem is a matter of self-identification. Kagan had the best one-liner of the day in response, noting that it is “a very selective vanity plate law” insofar as it doesn’t give Palestinians the same choice. On the other side there was some characterization of the law as imposing “compelled speech” on the Government. Justice Kennedy took care of that with prospective disclaimers that the executive branch could issue, even on the passport itself.

Along those lines, there was this interesting response from Justice Alito to SG Verrelli’s assertion that the statute poses a “very serious risk” of harming US credibility on the sensitive issue of Jerusalem’s status:

Justice Alito: Why would that be so? No matter how this Court decides, everyone will know what the position of the President is. Everyone will know what Congress thought when they passed this legislation. Whatever we do, that’s not going to be changed, and our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.

So why will there be any effect on foreign policy except by people who will misunderstand the situation, either ­­ — either because they really don’t understand it or they will exploit it in some way?

He has a point. One might add that everyone will know that Congress has no idea what it’s doing on foreign policy or anything else, and that “everyone” includes most of the world. Certainly sophisticated foreign government elites — they know that on everything from climate change to the International Criminal Court to human rights, Congress is way, way behind the curve.

That would take care of many contexts but perhaps not this one. There will be some people out there (not sophisticated government elites) who could take the passport policy the wrong way, not knowing that Congress is out to lunch and that US policy has not changed. That’s where the risk comes in. It’s what makes this case less than ideal for adapting the Constitution to the new global dynamic. The Middle East is a throwback to the old world. Arguments like Noah Feldman’s here still make a lot of sense when it comes to Israel-Palestine, even if they don’t make so much sense anywhere else.

But the risk may be small enough that the Court is willing to take it. As Wells Bennett notes, some of the Justices seemed not really to believe the Government’s predictions of dire foreign policy consequences. (On this score it may help them that there doesn’t seem to be a whole lot of back-up evidence.) If the Court rebuffs the executive branch and all hell doesn’t break loose when Zivotofsky and others get their passports, it will undermine all such claims in future cases, and we can expect the Government to get a dwindling bump from the increasingly putative foreign relations power.

Three Reasons Why Jerusalem Passport Statute Survives Zivotofsky

by Peter Spiro

Everyone is ramping up for Monday’s Supreme Court argument in Zivotofsky v. Kerry, with notable entries from Jack Goldsmith on Lawfare, Marty Lederman on Just Security, and Eugene Kontorovich on Volokh. They have been debating a narrow doctrinal basis (suggested by the SG and pressed by Jack) for striking down the law as a kind of passport regulation beyond Congress’ power under Article I.

A little more on that below, but in the meantime, here are three atmospheric factors that point to sustaining the statute, none of which will be mentioned in the decision.

1. Passports would say “Israel,” not “Jerusalem, Israel”. Along the way, Zivotofsky modified his demand from the latter to the former. If he wins, his passport will list his place of birth simply as “Israel”. This makes a huge difference in the optics, literally. There are already an estimated 100,000 US passports that list “Israel” as place of birth; upholding the passport measure will only increase the number. None will say “Jerusalem, Israel.”

The visual out on the web of the passport with the Stars and Stripes and other official US Government ornamentation as background on the personal information page would have easily been mistranslated as US Government recognition of Israeli sovereignty. Without the graphic, there’s too much explaining to do — you have to connect the document with a person (and that person’s birth information) to cause the offense. The attenuation should mitigate the risk of damage on the ground.

2. The government lacks the amicus support one has come to expect in a case like this. Where is the brief from former U.S. diplomats? In Medellin, Madeleine Albright et al. argued that the failure to find the VCCR self-executing would do serious damage to US foreign relations. There’s no equivalent in Zivotofsky, in circumstances in which the risk of damage would seem an order of magnitude higher (in the end, US-Mexico relations survived Medellin’s execution, and there have been no reported cases of other countries violating US citizen rights under the VCCR). The silence from other quarters might make the justices feel a little more confident that upholding the statute is not going to spark riots in the Arab world.

The government garnered only three amici in support. Perhaps everyone is scared away from taking a stance that looks anti-Israel. The American-Arab Anti-Discrimination League makes a non-delegation argument (as in, the statute unconstitutionally delegates decisionmaking to private individuals, namely, those who choose “Israel” over “Jerusalem”). The “True Torah Jews” argue that Zivotofsky lacks standing. And one David Boyle makes a grab-bag of arguments, including a Logan Act claim. Can anyone with a bar admission file green briefs these days? On the petitioner’s side, check out Louis Fisher’s anti-Curtiss-Wright diatribe (okay, did the Government have to cite Curtiss-Wright more than a dozen times in its brief?).

3. Why would the Court have taken the case, except to reverse? If the Court were inclined to strike the statute down, letting the D.C. Circuit’s creditable ruling stand would have accomplished that objective in a low-profile, low-cost way.

The doctrinal math for sustaining the statute is straightforward. The Secretary’s action is readily framed as Youngstown category 3 (much more so than the presidential memo in Medellin). From there, it’s a simple matter of finding Congress to have authority over the issuance of passports.

Assuming it doesn’t ignite the Arab Street, the decision won’t be of immediate consequence. Recognition decisions are much less important than they once were, and the probability of serious splits between Congress and the White House slighter still (hence the relative paucity of recent historical precedent for the issue). Ditto for passport authority parameters. This just isn’t something that gets fought over very often. Because the result looks unthreatening in these ways, I don’t see the Court going through Article I gymnastics to carve out this particular aspect of passport issuance from what is otherwise clearly within congressional authority (that is, some general authority over the issuance of passports under the foreign commerce and naturalization clauses). The Article I argument sounds more like a hairsplitty Breyer dissent than a broadly reasoned Roberts majority.

Upholding the statute would fit nicely into the Court’s project of normalizing foreign relations law. Zivotofsky I was a key step in that agenda, playing the Marbury card against the conventionally deployed political question doctrine in this kind of foreign relations dispute. Medellin was another. Upholding the statute would be normalizing. Exclusive presidential powers are exceptional; they seem less amenable to judicial supervision, especially when they are located in an amorphous and historically uncabined foreign relations power.

Update: Eugene Kontorovich notes here that there aren’t any amicus briefs from foreign governments, either. One wouldn’t think that unusual, but (as Eugene points out) such foreign government amicus participation has become pretty routine. (One other case in which foreign governments went missing: last year’s treaty power case, Bond v. United States.) Eugene is right to remind us that we shouldn’t read too much into amicus non-participation. But the silence might make the Court more confident in rebuffing the Government and its argument that enforcing the statute will upsets the apple cart of Middle East peace.