From the Third to the Fourth Restatement of Foreign Relations: The Rise and Potential Fall of Foreign Relations Exceptionalism
In Sarah H. Cleveland and Paul B. Stephen, eds., The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (Oxford University Press, 2020), Forthcoming
Posted: 16 Oct 2019
Date Written: October 15, 2019
This essay, written for a volume commemorating the American Law Institute’s publication of the Fourth Restatement of the Foreign Relations Law of the United States, traces the evolution of twentieth- and twenty-first century foreign relations jurisprudence that first culminated in the Third Restatement of Foreign Relations Law and has subsequently affected the emphasis of the Fourth Restatement. The essay argues that between the 1920s and the late 1960s, when cases such as Missouri v. Holland, United States v. Curtiss-Wright Export Corp., United States v. Belmont, United States v. Pink, Banco National de Cuba v. Sabbatino, and Zschernig v. Miller were decided, American constitutional foreign relations jurisprudence moved progressively toward emphasizing a posture of “foreign relations exceptionalism” that posited a sharp distinction between decisionmaking in the domestic and foreign relations realms; emphasized the extraconstitutional origins of executive power to make decisions affecting foreign relations; minimized federalism and separation-of-powers limitations on executive discretion in the realm of foreign affairs; and advanced a doctrine of “dormant foreign affairs preemption,” in which the policies of states having a potential impact on the relationship of the United States to foreign nations or residents of those nations were invalidated if they were perceived as interfering with that relationship, even where the United States had not expressed any views on the policies in question. Foreign relations exceptionalism found its fullest and most influential statement in the Third Restatement.
The essay next identifies a series of developments, in the interval between the last publication of the Third Restatement in 1987 and the appearance of the Fourth Restatement in 2018, that have cumulatively served, if not to altogether undermine the hegemony of foreign affairs exceptionalism, to call some of its core propositions seriously into question. The essay advances explanations for those developments and concludes that as international contacts involving private American actors increase, the judicial oversight of state policies affecting foreign relations, once a dominant feature of U.S. constitutional foreign relations jurisprudence, may well recede.
Keywords: Third Restatement of U.S. Foreign Relations Law; Fourth Restatement of Foreign Relations Law; Twentieth-Century Constitutional Foreign Relations Jurisprudence; Foreign Relations Exceptionalism
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