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Boston University School of Law associate professor (and Lawfare contributor) Rebecca Ingber has a provocative new article posted to SSRN, “International Law Constraints as Executive Power.” (It will appear this year in the Harvard International Law Journal, volume 57.) The article takes up a deeply contentious issue in US foreign relations and constitutional law - the invocation of international law as a source of of expansive executive authority within the US domestic legal system. The invocation of international law, as she puts it, not in its more familiar role as a constraining force on government actors - constraining government actors by reason of the international human rights of individuals, for example - but instead as an “enabling force within the domestic system.” It's a timely article and a serious intervention in a debate over the interplay of international and US domestic law with respect to executive power that, if perhaps not strictly timeless, is not likely to go away soon. Highly recommended (as Larry Solum might say). Abstract:
The use of international law to understand domestic authority has a long pedigree. It is also the subject of heated debate, which focuses predominantly on the extent to which international law can or should serve as a limit on political actors, in particular the President, and the extent to which it can be invoked to expand our understanding of domestic individual rights. Yet there is another significant dynamic at work in this interplay between international and domestic law. This is the invocation of international law not as a constraining force on government actors, but as an enabling force within the domestic system. This Article explores the U.S. Executive’s invocation of international law to support expansive interpretations of statutory or constitutional grants of authority; to narrow domestic prohibitions on executive action and narrow protections for individuals; and to justify the displacement of the ordinary operation of domestic legal rules, at times exchanging the domestic legal architecture for a more permissive framework based in international law.
Despite these dramatic effects, this “empowerment phenomenon” often goes unnoticed. In and of itself, the existence of international law empowerment is not inherently problematic. The dangers lie in the lack of attention and understanding paid to how it operates. In its most aggressive form, the empowerment phenomenon can result in an executive branch released from traditional statutory and constitutional constraints, free to act up to the limits of international law norms that the Executive itself asserts the authority to interpret. The hazards in this phenomenon lie in multiple factors: the insufficiency of international law itself as a sole check in the domestic legal realm; the discretion the Executive exercises over international law through its interpretive power; and the frequent lack of expertise and engagement with international law by those charged with checking executive authority. This Article examines the mechanisms through which the empowerment phenomenon operates, and navigates the tension between granting the Executive sufficient flexibility on the international plane and reining in that authority when it threatens to undermine fundamental domestic constraints.