11 Apr Executive Federalism (a.k.a. Semi-Shameless Self Promotion)
11.04.06
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I’ve been coming to terms lately with the fact that I’m obsessed with treaties. Now, to some, this might be a strange subject for an obsession, but I really do like treaties – I like to read newly negotiated treaties; I like to debate who can make treaties, not to mention my interest in comparing how different states interpret and apply the Vienna Convention on the Law of Treaties.
Most recently, I’ve carried my treaty interest into the domestic sphere – examining the role of treaty-making within the U.S. legal system. My latest foray into this field is an article forthcoming in the Southern California Law Review, entitled Executive Federalism: Forging New Federalist Constraints on the Treaty Power. In it, I address the longstanding debate over whether federalism constrains the treaty power (i.e., do states’ rights preclude the United States from concluding treaties on certain subjects or limit what procedural obligations the United States can accept in its treaty commitments). I challenge the conventional wisdom that the courts will authoritatively resolve that debate, and argue that, in reality, the Executive (rather than the courts or the legislature) primarily controls when and how to accommodate federalism principles in U.S. treaty-making. I conclude that the Executive’s efforts to address federalism in its treaty-making (efforts I dub “Executive Federalism”) have significant implications for how we conceive of the nature of federalism, for the role of other government actors in U.S. treaty-making, and for U.S. foreign relations overall. I’ve now posted the article on SSRN (you can download it here) or continue reading after the jump for my full abstract.
Executive Federalism: Forging New Federalist Constraints on the Treaty Power
This article addresses the longstanding debate over whether federalism constrains the treaty power and challenges the view that courts may authoritatively resolve that debate. Until recently, scholars generally accepted that the treaty power operated free from federalism limits based on Justice Holmes’ opinion in
Missouri v. Holland. Lately, however, scholars have questioned whether
Missouri remains good law. Two camps have emerged. On one side lie “nationalists” who seek to defend
Missouri by invoking constitutional text, structure, history, doctrine and prudential claims. On the other side reside “new federalists” who suggest that the Court should overrule
Missouri in light of: (1) adjustments to Congress’ commerce power via
Lopez and its progeny; and (2) changes in the subjects and substantive obligations of U.S. treaties. Despite their disagreements, both sides focus on the same subject—the Supreme Court.
This article demonstrates, however, that this judicial focus is misplaced. An examination of the Court’s doctrine reveals little likelihood that it will revisit Missouri. More importantly, while the Court has chosen to disengage, the Executive has interpreted the treaty power’s scope and devised its own mechanisms for accommodating federalism in U.S. treaties. To date, however, scholars have largely ignored the Executive’s efforts to self-judge when and how federalism limits U.S. treaty-making–efforts that I label “Executive Federalism.” But Executive Federalism has significant domestic and international ramifications. First, it requires rethinking federalism’s nature by demonstrating that federalism need not function solely as a judicial or legislative safeguard for states’ rights. Second, while it serves as a vehicle for Executive self-restraint, Executive Federalism still has structural implications, weakening the authority of other actors (the courts, the legislature, and even future Presidents) to voice their views on federalism in the treaty context. Third, it provides us with valuable information about how the holder of the treaty power–the Executive–conceives of its scope. Finally, Executive Federalism can affect U.S. foreign relations, preventing some treaty-making altogether, constraining U.S. negotiating positions, imposing extra costs to achieve U.S. goals, and complicating questions of U.S. compliance. In sum, Executive Federalism presents the case for re-conceptualizing the treaty power debate to recognize the Executive as an essential subject in its own right. So, read it today.
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At this point I think we can leave out the ‘shameless self promotion’ stuff, as it seems an accepted social norm in the blogosphere and elsewhere to publicize one’s own work. And inasmuch as many authors introduce their publications invoking this apologistic trope, it no longer rings true anyway, so let’s just drop it. Or does anyone think otherwise?
That said, I look forward to reading a paper I suspect will receive lots of attention if only because of its clever and provocative title (although the ‘new federalists’ will probably go away a bit disappointed). And who knows, a future presidential administration may find your arguments as congenial as the the current one found the arguments of John C. Yoo! (Playing around here, please don’t take this too personally or seriously)
Dear Duncan,
I enjoyed your paper, although owing to my lack of expertise on this subject I doubt I can offer any intelligent comments that might be of help. As far as I can ascertain it was well argued.
Correct me if I’m mistaken, but the heart of your argument is the claim that the answer to the question of ‘whether federalism limits U.S. treaty-making today’ is to be found in ‘Executive actions rather [rather] than in the scholarly readings of judicial tea-leaves.’ I trust you’re saying that this is a normative answer derived from your reading of the empirical evidence (from what is the case to what the case ought to be). The ‘Nationalists’ and the ‘New Federalists,’ on the other hand, look to the Supreme Court because they believe the argument is in the first instance Constitutional and thus normative, mining the historical record to buttress their constitutionally normative arguments (‘turn to history’ to ‘support their structural and textual conclusions,’ i.e., what ought to be the case is illustrated historically by what in fact has been the case) and hence to the Supreme Court for a confirmation or legitimation of that normative constitutional argument. I wonder whether individuals from either group will therefore be persuaded by your argument. For their argument does not depend or turn in the first place on empirical and historical questions as much as ‘structural’ and ‘textual’ Constitutional questions, which is one reason why they can and do draw different conclusions from the same evidence or text. And of course this is the primary reason they hope their interpretations will curry favor in this or that Supreme Court argument. They are explicit in their normative Consitutional commitments while your position buries or covers your Constitutional position (or establishes it by default) in an essentially descriptive and empirical claim: ‘how the executive branch regards the treaty power.’ The empirical/historical fact that, as you say, ‘the Executive–not the Court–has limited treaties from expanding federal law-making beyond Congress’ legislative powers or interfering with activities traditionally regulated by the states,’ is not the kind of argument either case will find compelling insofar as it assumes a particular take on Constitutional questions but does not directly address their normative legitimacy. Even you resort to Missouri: ‘But even though that case might authorize the Executive to conclude treaties on the matters of ‘sharpest national exigency” irrespective of reserved state powers, the decision did not say the Executive had to do so.’ That, I would argue, is the heart of your argument and what both Nationalists and New Federalists will focus on, for it’s that, a judicial interpretation (or premise) that effectively supports your your claim that the ‘Executive retains the prerogative to decide whether to negotiate and on what topic it assumes obligations.’ In other words, it seems that you yourself are resorting to Missouri to legitimate Executive prerogative and discretion, to endorse its historically ‘ad hoc’ approach to the treaty power question. And even if my understanding is muddled or dim-witted here, I think you can concede you might find judicial and constitutional warrant for your picture of Executive Federalism. The rhetorical strategy of your argument means it appeals neither to the Nationalists nor New Federalists, by-passing both, for neither group, it seems, could countenance the normative power of a claim that ‘Executive Federalism offers evidence of treaty power limits from the power holder’s perspective,’ for one meaning of judicial review would seem to be a constitutionally correct delineation of the nature and scope of treaty power limits not necessarily beholden to any power holder’s perspective. You write that the aforementioned limits are those ‘to which the Court is likely to defer.’ But the question is whether or not the Court should defer to such power, the answer to which you attempt to evade altogether. Your argument is not against the Nationalists and the New Federalists because neither group is proferring a descriptive account–‘a complete and accurate depiction’–‘of how federalism operates in the treaty context.’ They are offering, instead, a normative argument as to how it should operate in a treaty context, hence their need to resort to judicial reasons. Again, at the risk of belaboring the point, it is in one very important sense irrelevant that ‘the Executive has taken the matter into its own hands,’ because this empirical fact cannnot license a normative conclusion, at least constitutionally or judicially speaking. Am I wrong, or do you not conceive of Executive Federalism on the order of ‘customary law:’ de facto exercise over time assumes (deserves) de jure recognition.
Again, all of this may be well off base, but I’ll leave that judgment to you and others to make.
Oh yes, one more item: note 25 on p. 5 was very helpful, although I think your work bears more than ‘an analogy to other scholarship challenging the centrality of judicial decision-making to constitutional interpretation’ (i.e. and e.g., the work of Kramer, Tushnet, Balkin and Levinson). It rather has a strong family likeness to such work.
And thanks for making this paper available.
Please pardon the ‘rather’ redundancy.
It should read ‘is not the kind of argument either side will find compelling’
This was rather hastily composed as I wanted to finish before dinner was on the table!