Major Questions about International Agreements

48 Pages Posted: 2 Aug 2023 Last revised: 2 Feb 2024

See all articles by Kristen Eichensehr

Kristen Eichensehr

University of Virginia School of Law

Oona A. Hathaway

Yale University - Law School

Date Written: July 25, 2023

Abstract

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some justices have suggested that they want to go further and reinvigorate the non-delegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments.

The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional-executive agreements, executive agreements pursuant to treaties, sole executive agreements, and non-binding agreements, and it explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them.

Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or non-delegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as suffer harm to its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign relations-related issues in exceptional ways.

After arguing against using the major questions and non-delegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

Keywords: major questions doctrine, international law

JEL Classification: K33

Suggested Citation

Eichensehr, Kristen and Hathaway, Oona A., Major Questions about International Agreements (July 25, 2023). University of Pennsylvania Law Review, Vol. 172, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4528699

Kristen Eichensehr

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

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