Constitutionalism and Internationalism: U.S. Participation in International Institutions
OXFORD HANDBOOK OF COMPARATIVE FOREIGN RELATIONS LAW 375 (Oxford University Press: New York, Curtis A. Bradley, editor 2019)
18 Pages Posted: 22 Jan 2020
Date Written: January 21, 2020
This chapter considers the larger patterns found in legal norms derived from U.S. engagement with international institutions during the modern period. It first outlines a conceptual framework for assessing engagement. It draws on the “two-level game” concept proposed by Robert Putnam as a means of understanding the connections between domestic legal questions, particularly separation-of-powers doctrines, and choices about the nature and extent of international engagement. Next, it reviews modern U.S. participation in international institutions, including joint military activities, economic regulation, trade and investment liberalization, and dispute settlement. It examines legal doctrine expressed in judicial decisions that has addressed, confirmed, and limited U.S. participation.
This chapter demonstrates that U.S. doctrine fits plausibly within the Putnam two-level framework. The executive faces structural limits on its power to make international commitments, including to international organizations. Some degree of legislative consent is required both as a means of joining such organizations and to enable the actions of those organizations to take effect in the domestic legal system. Courts enforce these limits, and do not themselves apply international actions in the absence of endorsement by a responsible domestic political actor. Whether the outcomes of particular cases are optimal is debatable, but the general mix of executive, legislative, and judicial authority can be seen as striking a plausibly desirable balance between international flexibility and domestic constitutional entrenchment.
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