Foreign Affairs Federalism and the Limits of Executive Power

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state\u27s use of the label Genocide intruded on the federal government\u27s conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism — the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to help referee a conflict between the executive and legislative branches of the federal government concerning how Jerusalem-born American citizens list their country of birth on their passports. The former case presented an issue of federalism and the latter an issue of separation of powers; yet both cases sought to delineate foreign affairs authority in the United States. This Essay addresses the relationship between the states and the federal executive in foreign affairs — a federalism question — in light of coming separation-of-powers decisions. Part I briefly outlines foreign affairs federalism: how far into foreign affairs may states reach without stepping into the federal government\u27s exclusive terrain? Part II looks at a particular permutation of this federalism debate, examining the conflict between the states and the national executive. Movsesian, the Armenian genocide case, highlights this state-executive clash. The panel and en banc opinions in Movsesian offered two different approaches to this federalism question, both of which present textual and practical difficulties. Having laid out the problems with these approaches, Part III looks for answers in an unlikely place: decisions about the separation of powers within the federal government. In Zivotofsky, the Supreme Court called for increased judicial participation in contests between Congress and the President in foreign affairs. This command will produce a body of law defining the sphere of exclusive executive authority vis-à-vis Congress. Synthesizing these decisions, Part IV argues that, for structural and pragmatic reasons, courts should bar states as well as Congress from this exclusive executive sphere. The Supreme Court has called upon the courts to articulate the boundaries of executive and legislative authority within the federal government, but in so doing, the courts indirectly will provide guidance about the division between the federal government and the states

Data Institutionalism: A Reply to Andrew Woods

In Against Data Exceptionalism, Andrew K. Woods explores “one of the greatest societal and technological shifts in recent years,” which manifests in the “same old” questions about government power. The global cloud is an important feature of modern technological life that has significant consequences for individual privacy, law enforcement, and governance. Yet, as Woods suggests, the legal challenges presented by the cloud have analogies in age-old puzzles of public and private international law. Identifying these connections is a conceptual advance, and this contribution should not be understated. But, to my mind, the most telling statement in Woods’s excellent article comes early on: “Showing that the jurisdictional challenges presented by the global cloud are not conceptually novel does not resolve those problems.” Data may not be exceptional, and the legal puzzles posed by data sound in existing notions of jurisdiction and conflict of laws. The problem, however, is that existing answers to these puzzles are unsatisfying. They are unsatisfying in that they do not provide clear answers, but instead pose even more challenging normative questions. And they are unsatisfying because some consensus answers sit on shaky normative footing. More satisfying answers, I contend, require attention to institutions, not just laws

Diagonal Public Enforcement

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.” Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more than a century. Foreign governments have used U.S. courts to enforce federal antitrust laws, state environmental laws, and civil rights statutes, among others. Recently, the U.S. Supreme Court heard a case in which the European Community sued U.S. tobacco companies in a federal court in New York under the Racketeer Influenced and Corrupt Organizations Act. Diagonal public enforcement occurs within the U.S. system as well. States routinely enforce federal laws in federal courts, and opportunities exist for states to enforce sister-state law, especially with respect to climate change and other cross-border issues. Despite these examples, some view diagonal public enforcement as a category error: Why would legislatures rely on foreign governments to enforce domestic law, and why would foreign executives take up the task? In light of these questions, this Article attempts to demystify diagonal public enforcement by exploring when it is consistent with the rational pursuit of legislative and executive interests. Legislatures are likely to authorize diagonal public enforcement in order to increase deterrence or influence global regulation. Executives are likely to forum shop for diagonal options in order to achieve better outcomes in foreign courts. These predictions explain existing patterns of enforcement and suggest a larger role for diagonal public enforcement in the coming years. Finally, this Article critically evaluates the costs and benefits of diagonal public enforcement at the interstate, intrastate, and individual levels. At first glance, diagonal public enforcement may seem to raise concerns about the diffusion of regulatory authority, the extraterritorial reach of domestic law, and the interference in relationships with foreign sovereigns. Upon closer scrutiny, however, diagonal public enforcement turns out to have the capacity to improve enforcement efficacy, promote the public interest, protect foreign and minority interests, and nudge gridlocked institutions. At least under certain conditions, therefore, these transgovernmental cases may be models for deeper cooperation and improved enforcement

Justiciability, Federalism, and the Administrative State

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible. This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, caseor- controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal-state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch

Territoriality, Technology, and National Security

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years

National Injunctions and Preclusion

Critics of national injunctions are lining up. Attorney General Jeff Sessions labeled these injunctions “absurd” and “simply unsustainable.” Justice Clarence Thomas called them “legally and historically dubious,” while Justice Neil Gorsuch mockingly referred to them as “cosmic injunctions.” Scholars in leading law reviews have called for their demise. Critics argue that national injunctions encourage forum shopping, unfairly burden the federal government, and depart from the history of equity. They also claim that national injunctions contradict the Supreme Court’s decision in United States v. Mendoza to exempt the federal government from offensive nonmutual issue preclusion—a doctrine that permits nonparties to benefit from a prior finding against a party from an earlier case. Critics are right to identify the connection between national injunctions and nonmutual preclusion. Both of these doctrines describe when judgments can benefit nonparties. But critics are wrong to see Mendoza as an argument against national injunctions. For one thing, the rise of nonmutual preclusion that prompted Mendoza undercuts crucial arguments against national injunctions by offering an alternative explanation for the absence of analogous injunctions in the history of equity. For another, Mendoza was not preordained; instead, it was a highly policy-driven decision. And Mendoza’s policy arguments were dubious when it was decided and even more dubious today. Scrutinizing these arguments should make us less comfortable in extending Mendoza to a new context—as the Supreme Court may be poised to do. Indeed, this Article goes one step further. The Supreme Court or Congress should take advantage of the attention on nonparty relief to reconsider, and overrule, Mendoza. Federal-government litigants do not deserve special treatment with respect to preclusion in every case, and the existing rules of preclusion adequately protect the interests purportedly at stake in Mendoza. Moreover, rejecting Mendoza has feedback effects for the national-injunctions debate. Overruling Mendoza would not only reduce the need for national injunctions (because preclusion could do some of the work) but also provide a framework for limiting national injunctions without eliminating them completely. This is especially important given recent decisions that make relying on class actions a tenuous response. More generally, overruling Mendoza would create a system that is fairer to governmental and nongovernmental litigants alike while reaffirming each branch’s role in the making of national policy

Judging Foreign States

Famed foreign relations law principles, including the act of state doctrine, the public law taboo, and Zschernig’s foreign affairs preemption, rely on the notion that U.S. courts should not sit in judgment on foreign states. Judges in these cases, as well as scholars writing in the area, frequently suggest that U.S. courts should sit out of important disputes due to considerations of sovereign equality and international comity. Yet, in less attention-grabbing cases, U.S. courts routinely sit in judgment on foreign judgments, laws, legal systems, and interests, sometimes concluding that they do meet U.S. standards. The first goal of this project, therefore, is to identify and catalog those circumstances in which U.S. courts sit in judgment on foreign states. This extensive catalog should cast doubt on unsystematic objections to sitting in judgment: Were we to accept that sitting in judgment was per se impermissible, all sorts of current doctrines would need to be revisited. Such a categorical rule is not only radical, but also unjustified. The doctrines in which courts sit in judgment are routine and unremarkable; they protect important institutional and individual concerns; and they have not sparked international incident. Nor is there a coherent distinction between the doctrines that call for courts to sit in judgment and those that do not. Identifying these issues does not determine a better approach, and recent scholarship on these and related cases have proposed changes to U.S. law that turn on external considerations such as foreign interests or international comity. But this literature, in my view, risks focusing too much on the transnational aspects of these cases to the exclusion of domestic institutional concerns. As a potential corrective, this Article imagines sitting-in-judgment doctrine that is responsive to those structural factors that govern institutional arrangements within the U.S. system. Applying the tools of comparative institutional analysis, cases could be divided into those bilateral, legal, and constrained adjudications for which the common-law courts were designed, versus those polycentric, systemic, political inquiries best left to the political branches. Federalism, with implications for both authority and capacity, would suggest further division of responsibilities among relevant institutions. And individual rights considerations would offer guidance to courts about how to sit in judgment when called upon to do so. This analysis demonstrates not only that there is no per se reason that U.S. institutions should avoid sitting in judgment on foreign state acts, but also that current law may not be allocating responsibility for sitting in judgment consistent with domestic institutional considerations

Judging Foreign States

Famed foreign relations law principles, including the act of state doctrine, the public law taboo, and Zschernig’s foreign affairs preemption, rely on the notion that U.S. courts should not sit in judgment on foreign states. Judges in these cases, as well as scholars writing in the area, frequently suggest that U.S. courts should sit out of important disputes due to considerations of sovereign equality and international comity. Yet, in less attention-grabbing cases, U.S. courts routinely sit in judgment on foreign judgments, laws, legal systems, and interests, sometimes concluding that they do meet U.S. standards. The first goal of this project, therefore, is to identify and catalog those circumstances in which U.S. courts sit in judgment on foreign states. This extensive catalog should cast doubt on unsystematic objections to sitting in judgment: Were we to accept that sitting in judgment was per se impermissible, all sorts of current doctrines would need to be revisited. Such a categorical rule is not only radical, but also unjustified. The doctrines in which courts sit in judgment are routine and unremarkable; they protect important institutional and individual concerns; and they have not sparked international incident. Nor is there a coherent distinction between the doctrines that call for courts to sit in judgment and those that do not. Identifying these issues does not determine a better approach, and recent scholarship on these and related cases have proposed changes to U.S. law that turn on external considerations such as foreign interests or international comity. But this literature, in my view, risks focusing too much on the transnational aspects of these cases to the exclusion of domestic institutional concerns. As a potential corrective, this Article imagines sitting-in-judgment doctrine that is responsive to those structural factors that govern institutional arrangements within the U.S. system. Applying the tools of comparative institutional analysis, cases could be divided into those bilateral, legal, and constrained adjudications for which the common-law courts were designed, versus those polycentric, systemic, political inquiries best left to the political branches. Federalism, with implications for both authority and capacity, would suggest further division of responsibilities among relevant institutions. And individual-rights considerations would offer guidance to courts about how to sit in judgment when called upon to do so. This analysis demonstrates not only that there is no per se reason that U.S. institutions should avoid sitting in judgment on foreign state acts, but also that current law may not be allocating responsibility for sitting in judgment consistent with domestic institutional consideration

Justiciability, Federalism, and the Administrative State

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible. This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, caseor- controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal-state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch

Territoriality, Technology, and National Security

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years