Testimony of Rebecca Ingber Before the United States Senate Committee on the Judiciary On the Nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court

Professor Rebecca Ingber testified before the U.S. Senate Judiciary Committee as it considered the nomination of Brett Kavanaugh for Associate Justice of the U.S. Supreme Court. Her testimony focused on Judge Kavanaugh\u27s national security and international law jurisprudence, in particular, the court\u27s role in considering international law constraints on the President\u27s war powers, and the potential effects of this judicial approach on executive power

Co-Belligerency

Executive branch officials rest the President’s authority in today’s war against ISIS, al Qaeda, and other terrorist groups on an expansive interpretation of a 15-year-old statute, the 2001 “Authorization for Use of Military Force” (AUMF), passed in the wake of the 9/11 attacks. They rely on that statute to justify force against groups neither referenced in – nor even in existence at the time of – the 2001 statute, by invoking a creative theory of international law they call “co-belligerency.” Under this theory, the President can read his AUMF authority flexibly, to justify force against not only those groups covered by the statute, but also new groups that “join the fight.”In relying on “co-belligerency,” executive branch officials maintain that the President’s authority is bound by a clearly constraining rule with an established legal pedigree, but the co-belligerency theory does not in fact deliver on either. Instead, the Executive’s position is fluid, evolving, internally contested, and – contrary to the assurance that it has a firm foundation in international law – rests on shaky doctrinal grounds. In fact, the record suggests that executive branch officials are not even unified themselves on what the concept means or where it comes from. And yet the existence of this contested idea nevertheless acts as some impediment if not a barrier to executive action. It is, in effect, a grey-ish legal space, dangerously close to what David Dyzenhaus has called a “legal grey hole,” a mere “façade” of legal constraint. This article presents a story of a creative idea that became entrenched law, but in the process lost much of its shape. The result has been neither a clear limit on Presidential power, nor an executive branch run completely amok, but rather an amorphously-defined pool of discretionary authority for the President that few if any fully understand

Interpretation Catalysts and Executive Branch Legal Decisionmaking

Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decisionmaking. This Article adds necessary texture to these debates by identifying and exploring the role of distinct triggers for legal interpretation-which this Article terms interpretation catalysts -in driving and shaping executive branch decisionmaking, particularly at the intersection of national security and international law. Interpretation catalysts impel the executive to consider, crystallize and potentially assert a legal interpretation of its obligations under domestic or international law on a particular matter, and they can both impede and facilitate change within the executive. Examples of interpretation catalysts include such diverse triggering events as decisions regarding whether to use force against an armed group; lawsuits filed against the US. government; obligatory reports to human rights treaty bodies; and even the act of speechmaking. Each of these unique catalysts triggers a distinct process for legal decisionmaking within the executive, and is instrumental in framing the task at hand, shaping the process engaged to arrive at the substantive decision, establishing the relative influence of the actors who will decide the matter, and informing the contextual pressures and interests that may bear on the decision-thus shaping the ultimate substantive position itself These distinct mechanisms for decisionmaking each carry their own individual pressures and biases. By laying bare the interpretation catalyst phenomenon, this Article demonstrates potential avenues for actors within and external to the executive branch to predict, to explain, and to affect executive decisionmaking. This Article will explore the effect of interpretation catalysts on executive legal interpretation, and address some of the implications of this phenomenon for scholars, private actors, courts, and executive branch officials

Bureaucratic Resistance and the National Security State

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive. This account hails the bureaucracy as the modern incarnation of the separation of powers, an alternative to the traditional checks on the President of the courts and Congress, which are faulted with falling down on the job. These “deep state” and “benevolent constraints” approaches to bureaucratic behavior track debates in the scholarship over the legitimacy of the administrative state more broadly, and are used as rhetorical devices to challenge or defend current allocations of power. These accounts lead, respectively, to fear of or over-reliance on bureaucratic resistance—which I define here broadly as action or inaction within the executive branch that hinders executive movement—as a means of checking Presidential power. Fear of bureaucratic resistance results in an erosion of valuable internal checks on the President. Alternatively, over-reliance on these internal checks may result in complacency, and an abdication of responsibility by the traditional external checks, namely members of Congress and the courts. Both approaches result in an insufficiently constrained President, which should concern most advocates and opponents of the administrative state. This Article seeks to navigate the tension between these approaches in order to craft a more realistic account of bureaucratic resistance, divorced from substantive views about the policies or President at hand. This account suggests that critics of the bureaucracy underestimate the extent to which bureaucrats wield formal authority well-tethered to politically accountable sources. And both critics and champions of bureaucratic resistance overestimate the extent to which bureaucrats exercise functional power free from practical constraint. Ultimately, the bureaucracy is neither all-powerful nor unaccountable. While it plays an essential—and endangered—role in the modern separation of powers, it is neither the threat that some fear, nor the holistic cure to a President who is

Congressional Administration of Foreign Affairs

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President’s powers is drawn, it is well established that as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. In fact, questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decisionmaking, the weight accorded the position of any given decisionmaker, the context in which the decision is made—together these shape the ultimate position the President takes.This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors, and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings. There are risks to deploying such “process controls,” as I term them, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power

Untangling Belligerency from Neutrality in the Conflict with Al-Qaeda

The legal architecture for the conflict with al-Qaeda and the Taliban has been the subject of extensive scrutiny through two presidential administrations, a decade of litigation, and multiple acts of Congress. All three branches of the federal government have to date defined the framework as one of armed conflict, and have looked to the laws of war as support for expansive authorities concerning the use of force, including detention. Yet the laws of war do not merely contemplate broad state authority; they also provide critical and non-derogable constraints on that authority. Nevertheless considerable debate rages on with respect to whether and to what extent the international laws of war inform and constrain the U.S. government’s conduct in this conflict.This Article provides a survey of the legal architecture currently governing the conflict with al-Qaeda and the Taliban, and — considering that operating framework — presents a defense of critical law of war constraints on state action. It responds to Karl Chang’s Article, “Enemy Status and Military Detention in the War Against Al-Qaeda,” which proposes a broad legal theory of detention based on the law of neutrality and divorced from core protective law of war constraints. In responding to this and other calls for broad authority, this Article supports the complex though crucial practice of applying jus in bello principles, such as the principle of distinction between belligerents and civilians, to modern armed conflicts such as that with al-Qaeda and the Taliban. To the extent the U.S. government and other states rely on an armed conflict paradigm to support broad authorities, they must likewise constrain themselves in accordance with the international legal regimes governing such conflicts

Interpretation Catalysts in Cyberspace

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making body to take a position on its interpretation of a legal rule, shaping all aspects of the decision-making process, ultimately influencing the legal position that body takes, and often the resulting law itself. In this piece, I explore the role that the interpretation catalyst triggering the Tallinn process – the cyberattacks on Estonia in 2007 – have played in the development of the international law governing cyberspace going forward

The Obama War Powers Legacy and the Internal Forces that Entrench Executive Power

In exploring the Obama war powers legacy, this essay examines the systemic forces inside the executive branch that influence modern presidential decision-making and, barring a total reimagining of the executive branch, will operate on administrations to come. These mechanisms and norms fall broadly within two categories: (1) features that favor continuity and hinder presidents from effecting change, including both novel assertions of executive power and attempts to dial back that power; and (2) features that incrementally aggrandize such power claims. Together, these two sets of forces operate as a one-way ratchet, slowly expanding and ultimately entrenching executive branch power

Bureaucratic Resistance and the National Security State

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. These “deep state” and “benevolent constraints” approaches to bureaucratic behavior lead, respectively, to fear of or over-reliance on bureaucratic resistance, which I define here broadly as action or inaction within the executive branch that hinders executive movement. Fear of bureaucratic resistance results in an over-erosion of internal checks on the President. Alternatively, over-reliance on these internal checks may result in complacency, and an abdication of responsibility from the traditional external checks of Congress and the courts. Both approaches result in an insufficiently constrained President.This Article seeks to navigate the tension between these approaches in order to craft a more realistic account of bureaucratic resistance, divorced from substantive views about the policies or President at hand. This account suggests that critics of the bureaucracy under-estimate the extent to which bureaucrats wield formal authority well-tethered to politically accountable sources. But both critics and champions of bureaucratic resistance over-estimate the extent to which bureaucrats exercise functional power free from practical constraint. Ultimately, the bureaucracy is neither all-powerful nor unaccountable. While it plays an essential – and endangered – role in the modern separation of powers, it is neither the threat that some fear, nor the holistic cure to a President who is