Presidential War Powers as a Two-Level Dynamic: International Law, Domestic Law, and Practice-Based Legal Change

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure of the international and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law at one level is informed by the legal context at the other level. Third, it documents these interactions over time for several important components of the law on the use of force and shows that this two-level dynamic has played a significant role in furthering the practice-based expansion of unilateral war powers. The Article concludes by arguing that both scholars and policy-makers seeking to shape the law on the use of force need to take better account of this dynamic

Contemporary Practice of the United States Relating to International Law (114:4 Am J Int\u27l L)

This article is reproduced with permission from the October 2020 issue of the American Journal of International Law © 2020 American Society of International Law. All rights reserved

Contemporary Practice of the United States Relating to International Law (113:4 Am J Int\u27l L)

This article is reproduced with permission from the October 2019 issue of the American Journal of International Law © 2019 American Society of International Law. All rights reserved

Congress\u27s Treaty-Implementing Power in Historical Practice

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement treaties. Notably, both supporters and opponents of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed here strongly supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even when no other Article I power underlies this legislation

From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law

Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich understanding of the various processes for making international commitments and of the circumstances under which a particular process will be used. This approach also has important implications for separation-of-powers concerns. From a constitutional law perspective, the rise of international commitments outside the Treaty Clause registers as an unvarnished increase in presidential power. Factoring in international law and administrative law reveals a far more nuanced reality. While direct congressional checks on presidential power have weakened, alternative checks have arisen from administrative agencies, the international legal structure, and even to some degree from U.S. states. This Article describes the reconfigured landscape of checks and balances, which are spread across the negotiation, domestic approval, and implementation of international commitments. It then offers a qualified normative defense of this system and proposes several structural and doctrinal improvements. The Article closes with a case study applying its approach to the 2015 Paris Agreement on climate

Deadlines as Behavior in Diplomacy and International Law

Like most other types of human activity, international legal practice relies heavily on deadlines. Yet deadlines have received very little attention in international legal scholarship. This is the case even though deadlines are heavily studied in other contexts, with research finding that people tend to set and respond to deadlines in ways consistent with bounded rather than perfect rationality. This book chapter takes up the topic of deadlines in international legal practice and makes four contributions. First, using the Chemical Weapons Convention as a case study, it explores various ways in which deadlines are used in international legal practice and highlights just how pervasive they can be. Second, it reviews some behavioral research on deadlines in other contexts and demonstrates that these findings have intriguing parallels with how the Convention’s deadlines have functioned in practice. Third, it assesses the evidence available for evaluating the relevance of domestic research to international affairs in relation to deadlines. The chapter argues that, even though this evidence is currently limited, legal actors would do well to factor this research into their decision-making about how to structure and respond to deadlines. Finally, the chapter considers the extent to which these issues are common to both diplomacy and international law

Ending Security Council Resolutions

The Security Council resolution implementing the Iran deal spells out the terms of its own destruction. It contains a provision that allows any one of seven countries to terminate its key components. This provision – which this Comment terms a trigger termination – is both unusual and important. It is unusual because, up to now, the Security Council has almost always either not specified the conditions under which resolutions terminate or used time-based sunset clauses. It is important not only for the Iran deal, but also as a precedent and a model for the use of trigger terminations in the future. The political and legal dimensions of trigger terminations are striking. As to political dimensions, this Comment shows that by providing for the termination of resolutions, trigger terminations can influence the bargaining surrounding the creation and implementation of resolutions. As to legal dimensions, this Comment analyzes trigger terminations in light of the broader literature on the Security Council’s power to delegate authority and defends their legality within wide boundaries. Overall, this Comment argues that trigger terminations hold considerable promise but also some peril for the future