Curtis A. Bradley

Executive Power Essentialism and Foreign Affairs

The so-called Vesting Clause of Article II of the Constitution, which provides that The executive Power shall be vested in a President of the United States of America, stands in apparent contrast with the Article I Vesting Clause, which provides that All legislative Powers herein granted shall be vested in a Congress of the United States. . . . . This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President an array of residual powers, especially foreign affairs powers, that are not specified in the remainder of Article II. This argument, which we call the Vesting Clause Thesis, was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washingtons 1793 Neutrality Proclamation. In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argument in support of the Bush Administrations authority to use military force against Iraq had Congress not expressly granted such authority. Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. Professor John Yoo has invoked the Thesis in a number of recent articles as support for a variety of alleged presidential foreign affairs powers. The Thesis also has received recent support from Professor Phillip Trimble, and its historical account of executive foreign affairs authority is similar to the account developed in a thoughtful recent book by Professor H. Jefferson Powell. This Article critiques the Vesting Clause Thesis on both textual and historical grounds. As for text, the difference in wording between the Article I and Article II Vesting Clauses can be explained on a number of other plausible grounds and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. As for history, the narrative that is offered by proponents of the Vesting Clause Thesis has two central features. First, it is a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrative relies on what could be called executive power essentialism - the proposition that the Founders had in mind, and intended the Constitution to reflect, a conception of what is naturally or essentially within executive power. We argue that this historical narrative is wrong on both counts. Among other things, the narrative fails to take account of complexity within eighteenth century political theory, the experience of state constitutionalism before 1787, and the self-conscious rejection by the Founders of the British model of government. The narrative also understates the degree to which the constitutional Founders were functionalists, willing to deviate from pure political theory and essentialist categories in order to design an effective government.

Custom's future : international law in a changing world

Introduction: customs future Curtis A. Bradley 1. Customs past Emily Kadens 2. Customary international law adjudication as common law adjudication Curtis A. Bradley 3. Customary international law as a dynamic process Brian D. Lepard 4. Custom, jus cogens, and human rights John Tasioulas 5. Customary international law: how do courts do it? Stephen J. Choi and Mitu Gulati 6. Customs method and process: lessons from humanitarian law Monica Hakimi 7. The growing obsolescence of customary international law Joel P. Trachtman 8. The strange vitality of custom in the international protection of contracts, property, and commerce C. L. Lim 9. The decline of customary international law as a source of international criminal law Larissa van den Herik 10. Customary international law and public goods Niels Petersen 11. Reinvigorating customary international law Andrew T. Guzman and Jerome Hsiang 12. The evolution of codification: a principal-agent theory of the international law commissions influence Laurence R. Helfer and Timothy Meyer 13. Custom and informal international lawmaking Jan Wouters and Linda Hamid 14. Customs bright future: the continuing importance of customary international law Omri Sender and Michael Wood.

Intent, Presumptions, and Non-Self-Executing Treaties

Ever since the Supreme Court’s 1829 decision in Foster v. Neilson, it has been settled that some treaties ratified by the United States are “non-self-executing” and thus are not enforceable in U.S. courts unless implemented by Congress. Despite its pedigree, both the theory behind the self-execution doctrine and its mechanics have long befuddled courts and commentators. There is significant uncertainty, for example, concerning the materials that are relevant to the self-execution analysis, whose intent should count in determining self-executing status, the proper presumption that should be applied with respect to self-execution, and the domestic legal status of a non-self-executing treaty.

Introduction to AGORA: Reflections on Zivotofsky v. Kerry

AJIL Unbound is pleased to publish an Agora on the Supreme Court’s recent decision in Zivotofsky v. Kerry (Zivotofsky II).1 This highly anticipated separation-of-powers decision addresses the validity of congressional action alleged to intrude upon the President’s exclusive power to recognize foreign sovereigns. The petitioner in Zivotofsky was born in Jerusalem and wished to have his birthplace designated on his passport as “Israel.” Because the Executive branch does not recognize any country’s sovereignty over Jerusalem, the birthplace of U.S. citizens born in Jerusalem has been designated on their passports as “Jerusalem.” In 2002, Congress passed a statute entitling persons born in Jerusalem to have “Israel” designated in their passports as their place of birth. At issue in the case was the validity of this statute. In an earlier decision, Zivotofksy v. Clinton (Zivotofsky I),2 the Court held that the question of the validity of the statute did not present a nonjusticiable political question. This symposium focuses on the merits decision, Zivotofsky II, decided on June 8, 2015. The majority, in an opinion by Justice Kennedy, held that the President’s power to recognize foreign sovereigns is exclusive and that Congress’ statute unconstitutionally interfered with that power. Chief Justice Roberts and Justice Scalia wrote dissents, which Justice Alito joined. Both dissents expressed skepticism about the majority’s conclusion that the President’s recognition power is exclusive, but, in the end, both dissents rested on the conclusion that the statute Congress had enacted did not unconstitutionally interfere with that power. (Justice Thomas largely concurred with the majority, albeit on other grounds.) The first set of essays in this Agora offer diverse insights into a variety of aspects of the opinions in the case. Our contributors from Philadelphia—Peter Spiro of Temple University Beasley School of Law and Jean Galbraith of the University of Pennsylvania School of Law—both note that the majority opinion departs from earlier decisions that had led some scholars to claim that the Roberts Court was “normalizing” Foreign Relations Law. Spiro frames this departure as a temporary retreat from normalization, while Galbraith sees value in the uncertainty produced by the departure. The contribution by Harlan Cohen of the University of Georgia School of Law examines the competing visions of foreign relations law reflected in the opinions of Justice Kennedy’s and Chief Justice Roberts—the first highly functionalist and the second highly formalist—and the role those visions may be playing across the Court’s foreign relations law jurisprudence. The contribution by Curtis Bradley of Duke Law School focuses on what the majority opinion in Zivotofsky tells us about the importance of historical practice in constitutional interpretation, particularly in the field of Foreign Relations Law, and also describes tensions between a custom-based approach to the separation of powers and the institution of judicial review. A second set of essays will follow shortly after.

Historical Gloss, the Recognition Power, and Judicial Review

The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Both the Bush Administration and the Obama Administration declined to comply with this statutory directive. In Zivotofsky v. Kerry (Zivotofsky II), the Supreme Court sided with the executive branch, holding that Section 214(d) unconstitutionally interferes with the exclusive authority of the President to recognize foreign sovereigns.

The Supreme Court as a Filter between International Law and American Constitutionalism

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends a particular role for the Supreme Court in the area of foreign relations law, which is to act as a filter between international law and the American constitutional system. In such a role, the Court does not act as an impermeable barrier to international law but rather ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with the structure and values of the constitutional system. This filtering role is appropriate, the essay contends, because international law is generated through processes that often make it ill-suited for direct application in the U.S. legal system, and because international law is frequently designed to perform functions different from the ones demanded of domestic law. Using a number of the cases discussed in Justice Breyer’s book, the essay provides examples of the Supreme Court’s filtering role in four scenarios: First, the intersection of treaties and individual constitutional rights; second, the relationship between the treaty power and American federalism; third, delegations of authority to international institutions; and fourth, the domestic application of customary international law.

President Obama's War Powers Legacy

The five essays in this Agora, written by Jack Goldsmith and myself, Ashley Deeks, Ryan Goodman, Rebecca Ingber, and Michael Ramsey, consider the legal legacy of the Obama administration concerning the use of military force, with respect to both domestic law and international law. Prominent developments during the Obama administration relating to war powers include the administrations defense in habeas litigation of its authority to detain members of Al Qaeda and associated groups in military custody; its increased use of targeted killing outside of active combat areas, in part through frequent missile attacks carried out by drones; its use of military force in 2011 against the regime of Libyan leader Muammar Qaddafi, pursuant to a United Nations Security Council resolution; its deliberations in 2013 about the use of military force against Syria in response to the use of chemical weapons by the regime of Syrian President Bashar al-Assad; and its initiation of a long-term conflict against the Islamic State in 2014. This Agora touches on these and other developments and offers a range of perspectives.

After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.”

INTRODUCTION TO AGORA, PART II: REFLECTIONS ON ZIVOTOFSKY V. KERRY

AJIL Unbound is pleased to publish the second part of an Agora on the Supreme Court’s recent decision in Zivotofsky v. Kerry (Zivotofsky II).1 As we explained in our introduction to the first part of the Agora published in July, Zivotofsky II is a significant separation-of-powers decision concerning the exclusivity of the President’s authority to recognize foreign sovereigns and their territory.2 The essays in the first part of the Agora, by Curtis Bradley, Harlan Cohen, Jean Galbraith, and Peter Spiro, discussed the Supreme Court’s methodology in Zivotofsky II and considered the decision’s implications for the balance of authority between Congress and the executive branch and for the future direction of U.S. foreign relations law. The essays in the second part of the Agora consider Zivotofsky II from a number of additional perspectives. Julian Mortenson of the University of Michigan School of Law praises the decision for clarifying that a President can disregard a federal statute on the ground that it invades executive authority only if the President is exercising exclusive, and not merely inherent, authority.3 Catherine Powell of Fordham School of Law focuses on the signing statement accompanying President George W. Bush’s signature of the statute at issue in Zivotofsky II, and she discusses how such signing statements can promote a dialogic approach to resolving constitutional controversies.4 John Torpey of the Graduate Center of the City University of New York considers Zivotofsky II against the backdrop of domestic and international politics and describes more generally the political nature of passports.5 Finally, Campbell McLachlan of Victoria University of Wellington offers a non-U.S. perspective on the decision, explaining that, although the Supreme Court’s conclusion that the President has an exclusive recognition power is consistent with principles of English law, those principles do not support a more general executive authority in foreign affairs that is free from legal constraint.6