Congress's International Legal Discourse
Kevin L. Cope
Georgetown University Law Center
March 18, 2014
113 Michigan Law Review __ (2015, Forthcoming)
Numerous legal fields that were the exclusive domain of U.S. federal and state law just a few decades ago are now covered by international conventions. Under the U.S. Constitution, Congress has the power to uphold or violate international agreements by enacting ordinary legislation, making it a key player in how the United States treats its international law commitments. Given this critical role, it is puzzling that nearly all existing scholarly and popular literature has essentially ignored Congress, focusing instead on how the courts and executive interact with international law. Conventional wisdom holds that Congress’s consideration of international law is infrequent or non-existent, that international law usually takes a backseat to considerations with larger political yield.
Drawing on an original dataset comprising thirty years of legislative histories for approximately two-dozen federal statutes, this Article shows, counter-intuitively, that international law considerations actually have a vibrant role in the creation of domestic-oriented statutes. When considering legislation lacking any obvious connection to international law, but which would potentially violate some international law norm, members of Congress have consistently invoked treaty law during legislative deliberations. In doing so, they have argued that binding treaty law – including unincorporated treaties – counsel against the bill’s enactment. These discussions, moreover, rely heavily on arguments framed not just in pragmatic, but also in legalistic terms.
These findings cast doubt on the prevailing assumption that the relative lack of formal enforcement mechanisms for international law leads Congress to reject it reflexively, valuing domestic-oriented concerns over international norms whenever the two are in tension. This Article posits that international law’s surprisingly robust place in Congress can be explained by phenomena rooted in liberal institutionalist theories: first, that domestic politics encourages international law compliance by Congress, and second, that the “missing safety net” of judicial review, which – in contrast with the phenomenon driving congressional consideration of constitutional norms – has created an institutional culture in which members of Congress consider themselves bulwarks against international law violations. The Article concludes that the United States’ international law structure, by permitting statutes to trump treaties and customary law, has created a system in which Congress assumes significant responsibility for upholding international law obligations, making it a critical player in U.S. foreign relations in a way that is neither constitutionally explicit nor widely acknowledged. In doing so, it offers a novel dimension to liberal institutionalist approaches for determining when and why international law constrains democracies.
Accepted Paper Series
Date posted: March 20, 2014 ; Last revised: June 8, 2014
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