Exiting Congressional-Executive Agreements

Commentators have argued that, even if the president has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the president lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This Article challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this Article contends, there is no persuasive reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice. For example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents cannot unilaterally terminate statutes, congressional-executive agreements are not mere statutes. They are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to those contained in Article II treaties, which presidents have long invoked unilaterally, and Congress has never indicated that presidents have less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally

The United States, Israel, and Unlawful Combatants

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered “unlawful combatants” and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach

Clear Statement Rules and Executive War Powers

This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism. The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative claims about the potential role of a clear statement requirement in the context of executive war powers. The author concludes that what this analysis ultimately suggests is that deciding issues of executive war powers requires contextual and pragmatic judgment rather than resort to abstract classifications, whether they are liberal or conservative in character, something that Justice Jackson recognized in his justifiably famous \u27Youngstown\u27 concurrence

AGORA: Reflections on Zivotofsky v. Kerry : Historical Gloss, the Recognition Power, and Judicial Review

The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”1 Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry(Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.2 The focus of this essay is on the Court’s methodology rather than its conclusion. In particular, the focus is on the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. Reliance on such practice—also known as “historical gloss”—is common in constitutional interpretation relating to the separation of powers. For a variety of rea-sons, however, there are unlikely to be many instances in which historical practice will clearly establish an exclusive presidential power. In Zivotofsky II, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It is probably fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky II the principal direction of influence was the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system

Emergency Power and Two-Tiered Legality

Commentators have long debated how to think about the relationship between law and presidential power during emergencies. Three distinct positions have emerged in that debate. First is the strict approach: that the president is subject to the normal constitutional and statutory laws even during emergencies. Second is the accommodation approach: that constitutional and statutory law should be interpreted to allow for more expansive presidential power during time of emergency. Third is the extralegal approach: that exercises of emergency authority should be understood as operating outside the law, potentially with some sort of after-the-fact evaluation of whether the exercise was functionally or morally justified1. Each of these approaches has potential drawbacks. The strict approach’s denial that the interpretation of constitutional and statutory authority changes during times of emergency seems naïve and threatens to make the law either too restrictive or too disconnected from actual practice. The accommodation approach, by allowing governmental authority to expand during time of perceived emergency, may allow the government to opportunistically ratchet up its power and may create precedent that could distort the law during more normal times. The extralegal approach, by placing exercises of emergency authority outside the law, may leave these actions unregulated and undermine the rule of law, and it may be unrealistic if it depends on an acknowledgment by public officials of illegality. In his thoughtful essay, Richard Fallon has added to this debate by suggesting an approach that attempts to keep emergency power within the domain of law while reducing the danger that exercises of this power will corrupt the rest of the law.2Analogizing from “threshold deontology” in moral theory, Fallon suggests a distinction between the rules of constitutional and statutory interpretation that apply during normal times and those that apply during emergencies. Citing Justice Holmes’s observation that “[g]reat cases . . . make bad law,” 3 Fallon’s chief concern is the “problem of normalization: powers created for emergencies spill over their originally intended banks and become the norm.”4 His approach, he suggests, addresses this concern while retaining the rule of law. It also “fits our historical and contemporary practices for gauging the scope of executive authority.”5 At first glance, Fallon’s approach may seem to be a restatement of the accommodation approach. After all, his claim that “[w]hen consequence-based imperatives possess sufficient urgency, it is right to conclude, as a matter of law, that the president can do some things that would be flatly illegal or unconstitutional under the ordinarily applicable rules,” 6 is precisely the claim made by accommodationists. But Fallon’s position is potentially distinguishable in two respects. First, Fallon hypothesizes a two-tiered model that involves both normal law, akin to what is envisioned by the strict approach, as well as a category of emergency law, with the latter limited to “highly exigent cases.”7 Second, Fallon suggests that presidential actions that can be legally justified only in the emergency category “should be regarded as lesser legal evils that are regrettably in breach of,” and not wholly reconcilable with, “ordinary legal and constitutional ideals that emergency does not eradicate.”8 By having the emergency category conceptualized as narrow and as tainted, the hope is that it will be sufficiently cabined to avoid corrupting the rest of the law. Fallon’s analogy to threshold deontology is useful in highlighting some of the dilemmas that emergency power can pose for the law. Nevertheless, I have doubts about the need for, or usefulness of, two-tiered legality. As an initial matter, it is not clear that the idea of a regrettable lesser evil has broad relevance to real-world issues of statutory and constitutional law relating to presidential power. In addition, I question whether Fallon’s central concern—that the accommodation approach will lead to the creation of precedent that will corrupt the rest of the law—is borne out by practice. Nevertheless, I understand Fallon’s anxiety about the danger that the executive branch might extend its authority by tendentiously relying on past practices. This anxiety, I would suggest, relates to the general role of historical practice in informing presidential authority rather than anything specific to the emergency power context, and I therefore question whether a two-tiered legality approach would do much to address it

The Supreme Court as a Filter Between International Law and American Constitutionalism

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this filtering role in four scenarios: the intersection of treaties and individual rights; the relationship between the treaty power and American federalism; delegations of authority to international institutions; and the domestic application of customary international law

Reconstructed grounded theory: beyond comparison?

This paper examines the modifications made to constructed grounded theory for application within an ethnographic study of group work processes in a virtual learning environment. The paper details how the complex professional relationship of educational practitioner research, and the associated ethical issues, together with the variety of data analysed influenced the approach taken. The paper explores how the adaptations to constructed grounded theory process were applied and how this approach can be construed as grounded in grounded theory. The paper is explicit about the application and adaptation of grounded theory to meet the needs of the research and the epistemology of the researcher. Many studies purporting to use grounded theory are less explicit, this paper is intended to contribute to the discussion and development of a flexible approach to grounded theory, fit for purpose within the restraints of a practitioner based virtual educational ethnographic study. The relationship of the practitioner researcher (an Associate Lecturer) and the participants (the students) created a dichotomy between the neutrality and social distance of the researcher and the ethical implications for the Associate Lecturer. Whilst the participants were not vulnerable adults, many of the participants were novice learners returning to study and therefore a duty of care was required. The paper explains how the adaptation of constructed grounded theory enhanced the analysis and provided richer data than ethnographic observation alone. Despite the divergence from constructed grounded theory methods, rigor was achieved through the comparison of the coding produced throughout the analysis of the data. This level of rigor led to the emergence of unanticipated themes which influenced the group work processes. It is my belief that these would not have appeared through generic inductive approaches as they would have been overlooked and ignored without the line by line analysis. The modification of the grounded theory process retained the influence of constructed grounded theory rather than claiming to be rooted in constructed grounded theory. But the techniques applied are not beyond comparison with grounded theory. The research into virtual group work is timely in light of recent UK Government reports and relevant as interest in network delivered learning continues to grow