International Law and the Domestic Separation of Powers

62 Pages Posted: 22 Sep 2013  

Jean Galbraith

University of Pennsylvania Law School

Date Written: September 20, 2013

Abstract

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

Suggested Citation

Galbraith, Jean, International Law and the Domestic Separation of Powers (September 20, 2013). 99 Virginia Law Review 987 (2013). Available at SSRN: https://ssrn.com/abstract=2328795

Jean Galbraith (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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