Medellin and the Future of International Delegation
John O. McGinnis
Northwestern University - School of Law
April 8, 2009
118 Yale Law Journal 1712 (2009)
Northwestern Public Law Research Paper No. 09-11
Given the rise of globalization and the need for international governance of problems of the commons, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This essay considers the extent to which U.S. law imposes constraints on such delegations and the extent to which those constraints will influence the structure of the international delegations. International delegations of domestic authority raise even more profound problems of agency costs and democratic deficit than purely domestic delegations. The Supreme Court's recent decision in Medellín v. Texas reflects these concerns. By requiring a clear statement in United States law before giving domestic effect to the decision of an international agent (in this case, the International Court of Justice), the Supreme Court raised the enactment costs of domestic delegations. Because the Court did not find such a clear statement in the treaties at issue in Medellín, it left unaddressed the question of any other constitutional constraints on international exercises of domestic authority. The Essay considers the implications of four models - the administrative law model, the categorical constraint model, the categorical permission model, and the treaty model - for the policing of international delegations domestically and the improvement of such delegations internationally. It suggests that the treaty model - one by which the President and the Senate must authorize such delegations by treaty - may best reflect the original meaning of the Constitution. The Treaty Clause's requirement that such delegations be approved by a supermajority ex ante may also help address their ex post agency costs and democratic deficit.
Number of Pages in PDF File: 50
Keywords: delegation, treaties, congressional-executive agreement, supermajority rule, agency costs
JEL Classification: K33, K10Accepted Paper Series
Date posted: April 9, 2009 ; Last revised: March 29, 2012
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