Checks and Balances from Abroad

24 Pages Posted: 31 Jul 2015 Last revised: 10 Nov 2017

See all articles by Ashley Deeks

Ashley Deeks

University of Virginia School of Law

Date Written: 2016

Abstract

Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on U.S. checks and balances. New national security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean far more information is available publicly about intelligence missions. And robust legal rules now bind the U.S. and other Western intelligence services.

These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the Executive or the allocation of power among the three branches of U.S. government. First, some of these foreign influences can trigger the traditional operation of checks and balances in the U.S. system. Second, these foreign actions simulate some of the effects produced by U.S. checks and balances, even if they do not stimulate the U.S. system to act endogenously. Whether one views these foreign constraints as positive or detrimental, understanding them is critical to an informed conversation about the extent to which the Executive truly is unfettered in the national security arena.

Keywords: checks and balances, surveillance, foreign affairs, presidential power

Suggested Citation

Deeks, Ashley, Checks and Balances from Abroad (2016). University of Chicago Law Review, Vol. 83, p. 65, 2016, Virginia Public Law and Legal Theory Research Paper No. 38, Available at SSRN: https://ssrn.com/abstract=2637617

Ashley Deeks (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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