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12/16/2017

Kristen Eichensehr: Courts, Congress, and the Conduct of Foreign Relations
Michael Ramsey

Kristen Eichensehr (University of California, Los Angeles (UCLA) - School of Law) has posted Courts, Congress, and the Conduct of Foreign Relations (University of Chicago Law Review, Vol. 85, 2018 (forthcoming)) on SSRN.  Here is the abstract:

In the U.S. constitutional system, the President generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. “Non-executive conduct of foreign relations” occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the U.S. non-executive branch and a foreign executive branch. Non-executive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, non-executive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the U.S. government, hyperpartisanship in the United States, and what might be called the “Trump effect.” 

Building on Justice Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, this Article proposes a converse Youngstown framework for determining when non-executive conduct of foreign relations is constitutional. The converse Youngstown framework judges the constitutionality of the courts’ or Congress’s actions in light of executive authorization or condonation (Category 1), executive silence (Category 2), or executive opposition (Category 3). The converse Youngstown framework offers significant advantages over the current ad hoc approach to analyzing non-executive conduct of foreign relations, and it avoids some of the pitfalls that critics have identified with traditional Youngstown analysis. First, it more accurately reflects the fact that the President isn’t the only actor who exercises foreign relations initiative. Second, it avoids much of the indeterminacy that plagues the traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of non-executive conduct of foreign relations by explaining why easy cases are easy, allowing courts to engage in constitutional avoidance in some cases, and showing how Congress and the courts may sometimes trump the executive, even in Category 3.

Bonus: The Originalism Blog is cited in footnote 108.

(Thanks to Seth Barrett Tillman for the pointer).