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: • 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

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: • Trump Administration Takes Steps to Implement Bilateral Agreement with Australia Regarding Refugees • Trump Administration Criticizes NATO Members for Failing to Meet Defense Spending Guideline; United States Joins Other NATO Members in Supporting Montenegro’s Membership in the Organization • President Trump Issues Executive Orders Suspending Refugee Program and Barring Entry by Individuals from Specified Countries • Trump Administration Maintains Nuclear Deal with Iran, Despite Persistent Skepticism • United States Strikes Syrian Government Airbase in Response to Chemical Weapons Attacks by Syrian Forces; Two Additional Strikes on Syrian Government Forces Justified by Defense of Troops Rationale • United States Alleges Russia Continues to Violate INF Treat