International Delegations and the Values of Federalism

Abstract

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in their favor.

In this inquiry, I examine the effects of international delegations on the values of federalism, and I conclude that the relationship between an international delegation and federalism values depends upon what would happen in the absence of the international delegation. When the delegation replaces regulation by the federal government that would have displaced state choices anyway, then the delegation has no effect on state regulatory control but an uncertain net effect on federalism values. As I show, the impact turns on the relative inclinations of the federal government and the international body to decentralize.

When, however, there would be no federal regulation in the absence of an international delegation, so that the delegation reduces state autonomy, then the justifications for international delegations, whether constitutional or prudential, do not include the values commonly understood to be associated with federalism. In this situation, the submission that international delegations diffuse political power is unpersuasive: power is more diffused when fifty states maintain control than when one international body is delegated authority. When international delegations reduce state control, moreover, they compromise every other value that federalism is commonly thought to advance.