International Law and the Domestic Separation of Powers
62 Pages Posted: 22 Sep 2013
Date Written: September 20, 2013
This Article uncovers the forgotten role that international law has played in shaping the separation of foreign affairs powers between Congress and the President. Although the use of international law in constitutional interpretation is viewed today with deep skepticism, historically international law shaped how constitutional actors, especially ones outside the courts, understood the allocation of foreign affairs powers between the political branches. Importantly, international law did not play a neutral role in the power struggle between the branches. Rather, it bolstered the President’s expansive foreign relations powers vis-à-vis Congress in ways that continue to affect the distribution of powers today. This history holds lessons for contemporary constitutional interpretation, including the extent to which international law should constrain the President.
Keywords: international law, separation of powers, recognition, war powers, sole executive agreements
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