Symposium: Law and “Stickiness” in the Times of the Great Unglued

[Frédéric G. Sourgens is a Professor of Law at Washburn University School of Law.]

The key virtue of transnational legal process is what Dean Harold Koh calls its “stickiness.” (pp. 416, 437) Transnational legal process is rooted in the deep authority structures underpinning world community: we, as members in world society, have internalized global norm commitments as our own and reflexively order our own lives accordingly. (p. 256) Once set in motion, compliance with transnational legal process is simply a matter of path dependence. In ordinary times, this makes it extraordinarily difficult to escape transnational legal process. By way of example, it would be strange to think of a Republican Secretary of State standing up for the Paris Agreement and perhaps even stranger to suppose that this Secretary of State was the former CEO of Exxon. And yet, Secretary Tillerson reportedly was an internal champion for the treaty.

The problem is: these are far from ordinary times. The Trump administration has been described as “unglued.” Perhaps it would be more adroitly described as an agent of a great “ungluing” of the fabric of global life. The administration is setting out to unglue the administrative state. It is poised to dismantle the vestiges of stickiness within the administrative state by failing to fill political appointments by the hundreds and driving civil servants from State Department and the EPA in record numbers. If stickiness depends upon the internalization in due course of transnational legal expectations in the administrative state – simply deny the administrative state the ready means of norm internalization in the first place.

More worryingly still, the Trump administration is a symptom rather than a cause of a great ungluing of existing world order(s). To complain that the world would come together to solve its problems but for the current occupant of the White House would be to suffer from willful blindness. The ungluing of which President Trump is such a potent symbol is a global phenomenon. What is more, it continues to spread and follows the logic of its own process: a transnational transference of lawlessness, or photonegative of Dean Koh’s transnational legal process. This counter-process is fueled by deeply felt, if not necessarily richly deserved, dissatisfaction with our globalized world order. It is therefore fair to surmise that it is not the “Will of Trump” that is set upon ungluing our world. Hell, it’s others. Hell, it’s us.

Where does this leave “stickiness?” Dean Koh is a perennial optimist. He bets – hopefully correctly – that the stickiness of transnational legal process is stronger than the force seeking to unglue it. If this proves so, the Trump administration and others like it would simply tire themselves out. What Dean Koh calls the “rope-a-dope” of a daily grind against the resistance of settled expectations in world society will eventually bring about norm compliance by the Trump administration just like it does for every other administration that campaigned on radical change. (p. 415)

Dean Koh provides a blueprint for how transnational legal process can constrain the Trump administration. Thus, he notes that “[t]hose opposing President Trump’s policy initiatives on legal grounds can use the various fora available to them to resist those initiatives, forcing Trump to punch himself out by expending energy and capital on initiatives that that do not advance his or his party’s chance at reelection” (p. 421). Dean Koh provides examples of how the “transnational legal process kicked in” by “swift and furious legal challenge[s].” (p. 425). The examples Dean Koh provides rest upon domestic legal actions such as immigration law in the context of the travel/ Muslim ban (p. 428) and environmental law in the context of the Paris Agreement (pp. 438-440). He cites the involvement of civil society actors around the world in support of these lawsuits as having an effect upon the Trump administration consistent with the demands of transnational legal process and stickiness.

Dean Koh is implicitly relying upon a connection between transnational legal process and domestic litigation. Problematically, in the face of current ungluing efforts, he does not theorize why this link should exist. As the pointed disagreement over the use of foreign legal materials in constitutional argument at U.S. Supreme Court showcased just too vividly, the great ungluing precisely seeks to impeach the reflex to coordinate domestic and transnational legal processes. The Trump administration and others dissatisfied with the current state of globalization are precisely leery of the hidden (if not invisible) hand of transnational processes guiding domestic judicial and administrative decision-making. It is therefore inadvisable to double down on implicit compliance. It is time to bring transnational legal process out of the closet and make its function explicit and express.

In the first instance, it is important to provide a further appraisal of stickiness on the international level. Take the Paris Agreement. As Dean Koh points out, the Paris Agreement did not on its face make greenhouse gas emission reduction pledges binding as a matter of the agreement itself. Nevertheless, it is fair to say that Dean Koh treats the Paris Agreement as one of the key examples of the transnational legal process at work in constraining the U.S. from changing course on climate change efforts during the Trump administration. (pp. 438-440). How did the Paris process create international legal commitments? While doctrinally tricky, this needle can be threaded and thus provide a further backstop showing why compliance is consistent with the transnational legal process not just a matter of prudential choice, but – fittingly given the name of this blog – grounded in a sense of legal obligation.

An international law answer is not enough however to satisfy the domestic side of our stickiness puzzle. To address the critics decrying the “Class of Davos,” transnational legal process in the times of Trump must answer why the international commitments incurred by the Obama administration continue to commit a successor administration. Only such an answer will give cover to career civil servants who intuitively follow the move towards compliance indicated by transnational legal process. Only this answer will answer the accusation of “deep state” with “rule of law.” What then is the role of the international commitment undertaking at Paris in barring efforts by the Trump administration to repeal and replace rules like the Clean Power Plan upon which the U.S. Paris commitment centrally relied? (p. 4). Again, the needle is tricky to thread. But not threading the needle is to give ammunition to those wishing to unglue our current world order and allows them to accuse proponents of the transnational legal process of corrupting American primacy.

Answering both questions is not a fool’s errand. Transnational legal process can provide answers in the context of the Paris Agreement. Hopefully it will push transnational legal process to provide a further layer of explanation for transnational legality. It allows us to ask not just why states comply with international law. It permits us to push further to understand how the process of complying (stickiness) is itself grounded in law. We would thus be one step further along in uncovering the central forces driving a lawfully constituted world society.

As it stands, Dean Koh’s The Trump Administration and International Law is a powerful call to action. It is an important confirmation of the virtue and value of transnational legal process. Its virtue and value is ultimately that we do not live in the President’s world, but in ours so long as we remain connected – sticky – and hold our world together. As Dean Koh notes by reference to one of the great fighters, Muhammad Ali, it is our choice to stand up for the fundamental principles inherent in the rule of law – stability, reciprocal engagement, and growth – and to be relentless in our resolve to take whatever blows an opponent might choose to inflict. But it is important to do more than stand up for these principles; one must speak up for them with an eloquence to rival one’s tenacity so that years later, it is the spirit of Muhammad Ali rather than the spirit of the U.S. boxing commissions which we all celebrate and remember. Stickiness must not only be just and lawful. It must be seen to be just and lawful.