Partisan Conflicts Over Presidential Authority

A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at the expense of the political branches. In this Essay, I sketch out the possibility that power holders may often seek to expand or contract the scope of presidential authority based on whether it advances partisan rather than institutional objectives. More specifically, when the constitutional allocation of presidential authority is unbundled along discrete issue dimensions, partisan power holders may have an incentive to stake out a vision of presidential authority that increases the chance of carrying out their favored issues and that makes it more difficult to carry out issues that favor the political opposition. And as the parties\u27 electoral bases and elites become more polarized in terms of ideology and presidential*390 voting patterns, such partisan divisions regarding the allocation of presidential authority are likely to become more pronounced. This Essay illustrates this dynamic by examining the conflicting positions on presidential power adopted by the administrations of President Barack Obama and his predecessors on issues like human rights, war powers, and executive branch oversight of the administrative state

Courting Genocide: The Unintended Effects of Humanitarian Intervention

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem is that when the international community intervenes in the civil wars or insurrections where most humanitarian atrocities take place, its decision is partially endogenous or interdependent with that of the combatants; humanitarian interventions both influence and are influenced by the decisions of the victims and perpetrators of atrocities. Herein lies the paradox: because humanitarian interventions tend to increase the chance that rebel or victim group leaders are going to achieve their preferred political objectives, such leaders might have an incentive to engage in the kinds of provocative actions that make atrocities against their followers more likely in the first place. More specifically, the prospect of humanitarian intervention often increases the level of uncertainty about the distribution of costs and resolve between the combatants. In turn, such uncertainty amplifies the possibility of divergent expectations between the dominant and rebel group regarding the outcome of a civil war. At bottom, the prospect of humanitarian intervention might sometimes increase the risks of genocidal violence. This Article turns to insights from the domestic framework of torts and criminal law to elaborate upon the theoretical framework that motivates this perverse dynamic, provides some contemporary illustrations from civil wars in Africa and the Balkans, and recommends improvements to the current regime to mitigate some of its unintended effects. This Article concludes that the optimal regime of humanitarian intervention would incorporate comparative fault principles that take into account the failure of victim (or rebel) leaders to take adequate precautions against the risks of humanitarian atrocities

The Breakdown of International Treaties

“[A] cause seldom triumphs unless somebody’s personal interest is bound up with it.” In the past few years, we have witnessed a rise in antiglobalization sentiment in which certain treaties have succumbed to domestic political backlash. But why are particular treaties susceptible to breakdown while others tend to be more resilient? Paradoxically, this Article argues that the fragility of treaties follows a peculiar logic: treaties are most vulnerable to breakdown or withdrawal if they were originally negotiated in the absence of social conflict among domestic groups. The reason is that, having been negotiated and ratified with hardly any political struggle, consensus treaties often lack the support of battle-hardened special interest groups who are willing and able to defend such treaties against downstream political threats. This Article uses the contemporary backlash against both bilateral investment treaties and the Rome Statute establishing the International Criminal Court to illustrate the vulnerability of consensus treaties. By contrast, treaties negotiated amid intense political disagreement, such as the WTO/GATT framework governing international trade, have exhibited remarkable resilience over time. On a more speculative note, both the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) were likely rendered politically fragile by the first generation of consensus investment treaties entered into by the United States. Finally, this Article concludes by recommending measures to counteract the tendency of consensus treaties to collapse by making them more politically sustainable

Contesting Adjudication: The Partisan Divide over Alien Tort Statute Litigation

Ever since the modern revival of Alien Tort Statue (ATS) litigation in 1980, Democratic administrations have favored adjudication under the statute while Republican administrations have been against it. But why would this be the case? After all, the received wisdom assumes that presidents (from either party) are empire builders who prefer to shape international law and foreign policy without any meddling from the courts. This Essay advances a partisan entrenchment logic to explain the variance in support of ATS adjudication across different administrations. Under this logic, presidents and judges are political actors whose partisan preferences regarding substantive international law will sometimes trump their institutional or interpretive empire-building objectives. Thus, presidents who are sympathetic to the ideological goals of a specific international law norm may be willing to relinquish interpretive authority to courts in order to entrench the norm in a way that binds their successors and other domestic political actors. Conversely, judges who are unsympathetic to the policy goals of an international law norm may be willing to relinquish interpretive authority to the President (or the political branches) in order to prevent legal entrenchment. These divergent approaches toward ATS adjudication have been shaped by the preferences of interest groups aligned with the Republican and Democratic parties. The Article concludes by examining the conflicting litigation positions of lawyers from the Obama and Bush Administrations over the scope of the ATS in the Supreme Court’s recent decision of Kiobel v. Royal Dutch Shell Petroleum