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05/22/2018

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

Recently published in the University of Chicago Law Review, Kristen E. Eichensehr (UCLA): Courts, Congress, and the Conduct of Foreign Relations (85 U. Chi. L. Rev. 609 (2018)).  Here is the abstract:

In the US 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. Nonexecutive 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 US nonexecutive branch and a foreign executive branch. Nonexecutive 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, nonexecutive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the US government, hyperpartisanship in the United States, and what might be called the “Trump effect.”

Building on Justice Robert Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co v Sawyer, this Article proposes a converse Youngstown framework for determining when nonexecutive 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 nonexecutive 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 traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of nonexecutive 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.

Though I'm not a fan of tripartate analyses not connected to Constitution's text, I agree at least to this extent: (1) textually, Congress has some powers it can exercise in conjunction with or in support of the President but cannot exercise in opposition to the President.  These are powers it holds from the grant of power "To make all Laws which shall be necessary and proper for carrying into Execution ... all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (2) I think it clear that "Congress ... may sometimes trump the executive, even in Category 3 [i.e., where the President disapproves]" -- that would be the case where Congress has its own textually granted foreign affairs powers (which is actually quite often).

Bonus: The Originalism Blog is cited in notes 108 and 110.  Thanks!

(Thanks to Seth Barrett Tillman for the pointer.)