Disregarding Foreign Relations Law

Abstract

What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Professors Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference courts accord executive interpretations of law in the foreign-affairs context. They maintain that courts should presumptively give Chevron-syle deference to executive interpretations of foreign relations law - even if the executive interpretation is articulated only as a litigation position and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference in their proposal - namely, foreign relations law that operates in what we call the executive constraining zone. Courts have scrutinized, and should continue to scrutinize, executive interpretation of international law that has the status of supreme federal law, is made at least in part outside the executive, and conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the president in ways that would: subvert the nation's interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard; and law-interpreting authority at some point effectively constitutes law-breaking authority.