Article II Vests Executive Power, Not the Royal Prerogative

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it is also demonstrably wrong. Based on an exhaustive review of the eighteenth-century bookshelf, this Article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing

Law Matters, Even to the Executive

In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really “law”? Or is rule compliance in such circumstances just an expression of “interests”? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at its highest, the centralization of modern government at its most pronounced, delegations of authority to the executive at their broadest, and contempt for idealism at its most self-satisfied. Two recent books on executive power prompt this return to such well-trodden ground. In The Executive Unbound: After the Madisonian Republic, Eric Posner and Adrian Vermeule claim that the constitutional rule-of-law apparatus is basically worthless. In Power and Constraint: The Accountable Presidency After 9/11, Jack Goldsmith says just about the opposite. This Review argues that Goldsmith is right and supplements his account by identifying a key mechanism in the political economy he describes. The Review begins by separating the various threads of argument advanced by Posner and Vermeule to expose how implausible their conceptual claims will seem to most lawyers. It then explores how their (largely unsupported) descriptive claims are contradicted by Goldsmith’s empirical account as well as by other evidence adduced here. The Review closes by suggesting that one of the most plausible causal mechanisms for the efficacy of law — the deep vein of respect for legality that characterizes our culture — is itself a primary target of Posner and Vermeule’s project

International Investment Law

Since the middle of the twentieth century, the field of international investment protection has gone through a period of more or less continuous expansion. From a single bilateral investment treaty (‘BIT’) signed between Germany and Pakistan in November 1959, international investment law has seen the proliferation of some 3,200 investment treaties governing the treatment of foreign investors by the host States where they do business. As a historical matter, the substantive elements of modern investment law emerged from a loose network of customary international law protections that pre-existed the treaties now dominating the regime. Customary international law had long required host States to extend certain guarantees of decent treatment to foreign citizens within their jurisdiction. The systematic codification of these customary norms into a far-flung network of treaties began in earnest with the late nineteenth century emergence of so-called ‘friendship, commerce, and navigation’ treaties, which incorporated existing customary rules and adopted various new substantive requirements. The treaty network took its next step when BITs proper emerged in the mid-twentieth century, characterised principally by the extension of dispute resolution options to individual investors. As customary investment law was gradually codified at the retail level, the law of treaties began to loom much larger in meta-regulation of the regime. This chapter will explore some of the ways that the modern law of treaties interacts with the modern law of international investment protection. It will focus in particular on a handful of areas where the formal categories of treaty law map awkwardly onto the reality of modern investment law and adjudication

The Executive Power Clause

Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security. This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives—including records of drafting, legislative, and ratification debates, committee files, private and official correspondence, diaries, newspapers, pamphlets, poetry, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent. The Founding generation understood “executive power” to mean something both simple and specific: the power to execute law. This authority was constitutionally indispensable, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some prior exercise of legislative authority. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing

Contemporary Practice of the United States Relating to International Law

In this section: • United States Condemns Russia’s Use of Force in Ukraine and Attempted Annexation of Crimea • In Wake of Espionage Revelations, United States Declines to Reach Comprehensive Intelligence Agreement with Germany • United States Defends United Nations’ Immunity in Haitian Cholera Case • French Bank Pleads Guilty to Criminal Violations of U.S. Sanctions Laws • D.C. Circuit Strikes down Administrative Order Requiring Divestment by Foreign-Owned Corporation • United States Adopts New Land Mine Policy • United States Claims That Russia Has Violated the INF Treat

Contemporary Practice of the United States Relating to International Law

In this section: • United States Abstains on Security Council Resolution Criticizing Israeli Settlements • United States Sanctions Russian Individuals and Entities After Accusing Russian Government of Using Hacking to Interfere with U.S. Election Process; Congressional Committees and Intelligence and Law Enforcement Agencies Continue to Investigate President Trump’s Connections to Russian Officials • Second Circuit Overturns $655 Million Jury Verdict Against Palestine Liberation Organization and Palestinian Authority • New Legislation Seeks to Confirm Immunity of Artwork and Facilitate Cultural Exchange • United States Confronts China over Seizure of Unmanned Drone in the South China Sea • International Criminal Court Prosecutor Recommends Investigation of Potential War Crimes in Afghanistan, Including Actions by U.S. Military and Central Intelligence Agency • United States Strikes Houthi-Controlled Facilities in Yemen, Reaffirms Limited Support for Saudi-Led Coalition Notwithstanding Growing Concerns About Civilian Casualties • United States Expands Military Operations in North Africa and Classifies al-Shabaab as a Force “Associated” with Al Qaed

Contemporary Practice of the United States Relating to International Law.

In this section: • Agreement on Iran Nuclear Program Goes into Effect • United States and China Reach Agreement Regarding Economic Espionage and International Cybersecurity Norms • United States Ratifies the International Convention for the Suppression of Acts of Nuclear Terrorism • United States Reaches Agreement with Turkey on Use of Incirlik Air Base for Strikes on ISIL; “Safe Zone” Not Part of the Dea

Contemporary Practice of the United States Relating to International Law

In this section: • United States Achieves Progress in Iran Relations with Nuclear Agreement Implementation, Prisoner Swap, and Hague Claims Tribunal Resolutions • European Union and United States Conclude Agreement to Regulate Transatlantic Personal Data Transfers • After Lengthy Delay, Congress Approves IMF Governance Reforms that Empower Emerging Market and Developing Countries • United States Joins Consensus on Paris Climate Agreement • United States and Eleven Other Nations Conclude Trans-Pacific Partnershi

Delegation at the Founding

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless of the institution from which it issued. Indeed, administrative rulemaking was so routine throughout the Anglo-American world that it would have been shocking if the Constitution had transformed the workaday business of administrative governance. Practice in the new regime quickly showed that the Founders had done no such thing. The early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era, with little if any guidance to direct them. Yet the people who drafted and debated the Constitution virtually never raised even policy objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning