Three Grotian Theories of Humanitarian Intervention

This Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights

Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking

Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for the will of the people in the administrative state. According to this view, placing federal rulemaking power firmly within the President\u27s managerial control would advance popular preferences throughout the federal system. This conventional wisdom is misguided. As political scientists have long recognized, the electorate\u27s relative disengagement from the federal regulatory process prevents voters from developing coherent preferences about most questions of regulatory policy. Moreover, even if discrete preferences could be attributed to the people as a whole, the American presidency does not in practice serve as a reliable proxy for majoritarian preferences in the administrative state. As an alternative to presidential proxy representation, this Article argues that federal administrative law should seek to promote popular representation in agency rulemaking through \u27fiduciary representation. Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude reasonableness, and transparency. Rather than focus on a representative\u27s obedience to the ephemeral public will, fiduciary representation emphasizes agencies\u27 responsibilities to act deliberatively and reasonably in promoting the public welfare. On this account, presidential administration is one plausible strategy for reconciling administrative lawmaking with popular sovereignty, but it is not necessarily the most promising strategy. Congress may counterintuitively promote popular representation in the administrative state by vesting final rulemaking authority in unelected agency administrators rather than the popularly elected Presiden

The Case Against Prosecuting Refugees

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken. This Article shows that Congress has not authorized courts to punish refugees for illegal entry or reentry. While largely taken for granted today, the idea that refugees may be prosecuted for such acts is in tension with the full text, context, and purpose of the Immigration and Nationality Act. It is also inconsistent with traditional canons of statutory interpretation, such as the Charming Betsy canon, the canon on constitutional avoidance, and the rule of lenity. Therefore, federal prosecutors should abandon refugee prosecution, and federal courts should hold that the criminal prohibitions on illegal entry and reentry do not apply to refugees

Fiduciary Foundations of Administrative Law

An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative law, like private fiduciary law, increasingly relies upon a tripartite framework of entrustment, residual control, and fiduciary duty to demarcate a domain of bounded agency discretion. To minimize the risk that agencies will abuse their entrusted discretion through opportunism or carelessness, administrative law empowers the political branches to exert limited residual control over agencies and subjects agencies to nonderogable duties of care and loyalty. As an interpretivist theory, this fiduciary model helps to explain controversial features of administrative law such as the contemporary nondelegation doctrine, Chevron deference, and the limits of presidential control over agency action. By clarifying administrative law\u27s internal dynamics and implicit ambitions, the fiduciary model also provides a blueprint for reform in critical areas such as the standing doctrine and the due process restraints on agency discretion

When Delegation Begets Domination: Due Process of Administrative Lawmaking

In federal administrative law, the nondelegationdoctrine purports to forbid Congress from entrusting itsessential legislative powers to administrative agencies.The Supreme Court developed this doctrine during thenineteenth century to safeguard republican valuesembedded in the Constitution. Over time, however, theCourt has loosened the doctrine\u27s grip, permitting federalagencies to wield broad lawmaking powers subject tominimalist intelligible principles established byCongress. The Court has defended this approach onpragmatic grounds, arguing that Congress cannot performits essential legislative function without entrustinglawmaking authority to administrative agencies. Whatthe Court has never adequately addressed, however, is theextent . to which congressional delegation potentiallyundermines liberty by instituting domination-thecapacity for arbitrary state action. Although the Courtcontinues to invoke the nondelegation doctrine\u27srepublican ideals, it has yet to articulate a coherent legaltheory to explain how its anemic review of congressionaldelegations can be squared with the Constitution\u27s liberty-promoting checks and balances.This Article contends that courts can reconcileadministrative lawmaking with the Constitution\u27srepublican design, but only if they abandon thenondelegation doctrine\u27s antiquated separation of powers rationale. In its place, courts should focus upon dueprocess as the primary constitutional constraint oncongressional delegation. Although the link betweendelegation and due process has received only sparseattention in legal scholarship, the Supreme Court hasemployed due process analysis in a variety of casesinvolving both state and federal delegations. Threegeneral principles inform these cases: to ensure thatcongressional delegation does not beget domination,agency lawmaking must be (1) constrained by a basicsubstantive standard, (2) channeled through fair anddeliberative administrative procedures, and (3) subject topolitical accountability and judicial review. Thissubterranean due process model challenges theconventional wisdom that due process is inapplicable toagency rulemaking. It also has a variety of important-and potentially controversial-implications for other areasof federal administrative law, including the scope ofChevron deference, the Administrative Procedure Act\u27sapplicability to presidential lawmaking, and theconstitutional status of federal delegations to states, tribes,private entities, and international organizations

Humanitarian Financial Intervention

Over the past several decades, states have used international asset freezes with increasing frequency as a mechanism for promoting human rights abroad. Yet the international law governing this mechanism, which I refer to as ‘humanitarian financial intervention’, remains fragmented. This article offers the first systematic legal analysis of humanitarian financial intervention. It identifies six humanitarian purposes that states may pursue through asset freezes: preserving foreign assets from misappropriation, incapacitating foreign states or foreign nationals, coercing foreign states or foreign nationals to forsake abusive practices, compensating victims, ameliorating humanitarian crises through humanitarian aid or postconflict reconstruction, and punishing human rights violators. Whether intervening states may pursue these objectives in any given context depends upon the interplay between several international legal regimes, including international investment law, collective-security agreements such as the UN Charter, the customary law of countermeasures, the law of armed conflict, and customary law governing the enforcement of judicial decisions. By disentangling the various international legal regimes that govern humanitarian financial intervention, this article furnishes a preliminary road map for evaluating the legality of past, present, and future financial interventions – including asset freezes directed against the Qaddafi regime during the 2011 Libyan Revolution