Symposium: Advancing International Law Under the Trump Administration–Some Cautionary Thoughts About Litigation

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

Among Harold Koh’s many academic achievements, perhaps his most influential has been to articulate a theory of transnational legal process that explains why nations obey international law. According to this theory, public and private transnational actors generate interactions that lead to interpretations of international law that in turn become internalized in domestic law. Once internalized, such interpretations become difficult to change.

In a recent lecture at Washburn University School of Law, Harold used the lens of transnational legal process to examine “The Trump Administration and International Law.” His tour d’horizon is a tour de force, examining the entrenchment of international law with respect to immigration and refugees, human rights, climate change, Iran, North Korea, Russian hacking and cybersecurity, Ukraine, al Qaeda and IS, and Syria. As he writes, “no single player in the transnational legal process—not even the most powerful one—can easily discard the rules that we have been following for some time.”

Harold’s purpose is not simply descriptive. He also sets forth a “counter-strategy” to resist Trump’s assault on international law and international institutions. This strategy includes an “inside strategy” that government officials can use to engage other states, translate international law norms, and leverage those norms as smart power to advance U.S. interests. And it includes an “outside strategy” that non-governmental actors can use “to generate interactions that force interpretations that promote internationalizations of international norms even by resisting governments.”

I want to focus on the “outside strategy,” and particularly its reliance on litigation. “Lawsuits are the paradigmatic example” of the outside strategy, Harold explains. “[I]f a government policy moves in a legally noncompliant direction, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm internationalization).” There is no doubt that litigation is a critical tool to promote compliance with international law. But litigation can also serve as a catalyst for interpretations that constrain international law.

In an insightful article that should be required reading for any lawyer entering government service, Professor Rebecca Ingber has examined how different interpretation catalysts shape executive branch interpretations in the area of national security. She writes: “Once the government is implicated in a lawsuit, particularly over a matter of national security, nearly all forces align to push the executive to advocate an expansive view of its own authority, to defend past action, and to request a judgment in favor of the government on the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change.

I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed no direct litigation risk to the United States or its officials and on which the United States had not previously taken a position, it was possible to reach consensus on a position that advanced international law (a position that became entrenched and that the Trump administration repeated in its amicus brief in Jesner v. Arab Bank). But with respect to questions of extraterritoriality, it proved difficult to move away from positions adopted by the Bush Administration in the shadow of the “War on Terror” and allegations of human rights violations by U.S. government actors.

In her article, Rebecca gives the example of the Bush Administration’s “War on Terror” policies. “The Bush years are often cast as a time of momentous Supreme Court pushback against administration policies in areas where presidents had previously been awarded great deference. That is one narrative, and there is truth in it.” But she explains that there is another narrative in which “repeated years of litigation . . . did not radically alter the legal architecture for the Bush Administration’s policies in its ‘War on Terror.’ Instead, this litigation entrenched it.” Despite the desire of the Obama Administration to move in a different direction, the existing executive interpretations made it “exceedingly difficult for the new Administration to change course and suddenly take new positions in litigation, above all those that might constrain government action or fail to defend past government policies.”

Litigation can be an important interaction in the transnational legal process framework. But it can produce narrow interpretations of international law by the executive, which are only sometimes overturned by broader interpretations in the courts. And narrow executive interpretations can become internalized, just as broader judicial interpretations can.

One may be more likely to get broader judicial interpretations when the courts do not trust a particular administration, at least not on a particular issue. That factor may have played some role in the Bush Administration’s losses at the Supreme Court in the “War on Terror” cases, and it could certainly be relevant in litigation challenging some of the Trump Administration’s policies. The probability of a good interpretation from the courts may offset the probability of a bad interpretation from the executive.

Whether litigation is the right counter-strategy also depends, of course, on the alternatives. As Rebecca rightly notes, “litigation may well be the only way to force the executive’s hand.” This may be particularly true for the Trump Administration, in which other potential catalysts (like reports to treaty bodies) are likely to have less impact and other potential interpreters of international law (like the State Department) have already been marginalized.

Finally, one must consider the impact of litigation not just on the executive branch and the courts but also on the broader public mind. A case in point is the litigation challenging the Trump Administration’s Travel Bans, in which the clinics at Yale Law School have played an important role. One by-product of the litigation was a devastating declaration of former national security officials, which later became an amicus brief, confirming that the Travel Ban would likely harm counterterrorism and law enforcement efforts. The litigation has also helped galvanize resistance from members of Congress and state and local governments. Even if this litigation generates narrow executive branch interpretations of international law, and even if courts uphold some of those interpretations, the political impacts of the litigation may yet prove worthwhile.

Transnational legal process provides an important framework for understanding why nations obey international law and how to frame strategies to ensure that the Trump Administration does as well. But it is wise to remember that executive branch interpretations tend to be most regressive when made in the context of defensive litigation, and that internalization can apply to bad interpretations as well as to good ones.