In the current issue of the Harvard Law Review, Ganesh Sitaraman (Vanderbilt) & Ingrid Wuerth (Vanderbilt) have the article The Normalization of Foreign Relations Law (128 Harv. L. Rev. 1897 (2015). Here is the abstract:
The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — was not always the prevailing view. In the early twentieth century, a revolution took place in foreign relations law. Under the intellectual leadership of Justice Sutherland, the Supreme Court adopted the idea that foreign affairs are an exceptional sphere of policymaking, separate from domestic law and best suited to exclusively federal, and primarily executive, control. The exceptionalist approach has dominated foreign relations law since that time, but it has always had questionable foundations.
Since the end of the Cold War, there has been a second revolution in foreign relations law, one whose scope and significance rival the Sutherland revolution, but one that has gone largely unrecognized. Over the last twenty-five years, the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This “normalization” of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance — the very heart of exceptionalism.
This Article documents the normalization of foreign relations law over the last twenty-five years. It demonstrates how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the proper interpretation of Youngstown to the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes. Ultimately, this Article argues that courts and scholars should embrace normalization as the new paradigm for foreign relations law.
Plus responses at the Harvard Law Review Forum from Carlos Vazquez (Georgetown), Curtis Bradley (Duke) and Stephen Vladeck (Texas).
This is likely the most important article on foreign affairs law this year. Although it's about the modern Court, it's also of textualist/originalist interest. In particular, the authors are (in my reading) a bit vague as to what they mean by "normalization," beyond some general sense that questions of foreign affairs law are treated more like ordinary legal questions (whatever that means). When I look at their description of the shifts in modern foreign affairs law, what I see (in part, at least) is increasing attention by the Court to text and original meaning, in both constitutional and statutory law.
To pick a couple of examples highlighted in the article: In Zivotovsky v. Clinton the Court disregarded an expansive, highly discretionary version of the political question doctrine based on the old Warren Court precedent Baker v. Carr; in its place, the Court described a narrower version of the doctrine based on the roles the Constitution assigns to the judiciary and to other branches. In Medellin v. Texas, the Court rejected the executive branch's claim to be able to displace state laws that inconvenienced executive foreign policy; the Court, relying on foundational principles of separation of powers it traced to James Madison, insisted that only Article VI lawmaking, not presidential policy, could preempt state law. (The Court was in my view somewhat less successful in that case in creating a text-based foundation for treaty non-self-execution, although I think it tried). In Republic of Argentina v. NML Capital, a statutory case, the Court read the Foreign Sovereign Immunities Act as it is written, to allow intrusive discovery orders against a sovereign government by a U.S. court; the Court dismissed arguments by Argentina and the U.S. executive branch warning of grave foreign policy consequences, saying they should be addressed to Congress.
The common thread in these cases, and others like them, is that the Court is worrying less about foreign policy consequences and instead is simply deciding cases according to the controlling legal texts. One could call this "normalization" depending on what one thinks the Court "normally" does; I would call it deciding more in accordance with the rule of law.
Posted at 6:43 AM