Should the Senate Give Advice and Consent on Special Envoys?

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, International Law & Diplomacy, President & Executive Branch, PublicLeave a comment» on Should the Senate Give Advice and Consent on Special Envoys?

Potograph of an antique globe of the world showing the continents and nations circa the 1800s.Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.

Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers. Continue reading “Should the Senate Give Advice and Consent on Special Envoys?”

A Cuban Perspective on International Law

Posted on Categories International Law & Diplomacy, PublicTags , , Leave a comment» on A Cuban Perspective on International Law

As a member of the group of students and faculty who recently visited Cuba, I want to concur in all of the prior posts that expressed how fascinating it was to tour Havana, learn about some of the history, and in particular interact with the people. Prior to the trip, my only encounters with socialists had taken place in Berkeley, California and Eugene, Oregon, so I’d always associated the ideology with Left Coast stuff like patchouli and hemp shoulder bags. This was my first opportunity to meet and talk with genuine, born-and-raised socialists–people who think of Marx and Engels the way we might think of Locke or Smith. One of those people was Celeste Pino Canales, a professor of public international law at the University of Havana, who spoke with us about Cuban perspectives on international law and, afterward, allowed me to interview her on what it’s like to be a law professor in Cuba. A post about our conversation is available here.

 

Congratulations to the Jessup Moot Court Team

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A group of Marquette students just finished an extremely successful weekend at the Jessup International Law Moot Court Competition, which took place in Chicago and featured schools from across the midwest. The team of Matt Ackmann, Joel Chappelle, Solomon Gatton, and Colin Stephenson finished preliminary rounds ranked third out of twenty teams, advanced to quarterfinals, and received a trophy for writing the fourth-best briefs. In addition, out of eighty individual competitors, Colin and Joel received awards for being the fifth- and seventh-best speakers, respectively. Having watched a couple of their rounds, I can attest that they did a fantastic job.

Thanks to the efforts of these students, Megan O’Brien, and various alumni, Marquette has now placed teams in regional quarterfinals two years in a row. We look forward to extending this record of success in the coming years.

New Article on Federal Courts and Customary International Law

Posted on Categories Federal Civil Litigation, Federal Law & Legal System, International Law & Diplomacy, PublicTags , , Leave a comment» on New Article on Federal Courts and Customary International Law

I just posted a draft of a new article that studies citations in published judicial opinions to evaluate how federal courts go about ascertaining customary international law. For those interested, it’s forthcoming in the Iowa Law Review and available here.

Special thanks to Alex DeGuire and Ami Regele for excellent research assistance.

Legislative Diplomacy After Zivotofsky

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The Supreme Court’s decision in Zivotofsky v. Kerry held that Congress violated the separation of powers by enacting a statute that purported to compel the President to issue statements that contradict his policy of strict neutrality on the status of Jerusalem. In a recent post, I analyzed a disagreement between the majority and the dissent on the significance of foreign perceptions of U.S. law. I’ve now written a second post on the case, this time exploring Zivotofsky‘s implications for the constitutionality of diplomatic communications between Congress and foreign governments. It’s available over at Lawfare.

 

The Role of Foreign Perceptions in Zivotofsky v. Kerry

Posted on Categories Constitutional Law, International Law & Diplomacy, PublicTags , 1 Comment on The Role of Foreign Perceptions in Zivotofsky v. Kerry

On Monday the Supreme Court issued a long-awaited and important decision in Zivotofsky v. Kerry. This was a case about the nature of the President’s power to recognize foreign borders, and it required the Court to address the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2002, which entitled U.S. citizens born in Jerusalem to have “Jerusalem, Israel” listed on their passports as the place of birth. While the statutory entitlement may seem rather mundane, it conflicted with the Executive Branch’s longstanding policy of strict neutrality on Jerusalem’s status by suggesting that the city is located within Israeli borders. Because the Executive policy dictated that passports list only “Jerusalem,” Presidents Bush and Obama refused to implement the statute. Thus the question: Who gets to decide whether the United States will recognize Jerusalem as Israeli territory–Congress or the President?

The Court sided with the President and declared the statute unconstitutional. I wrote a post addressing one of the interesting issues in the case over at Lawfare; it’s available here.

The Study of International Law in Foreign Law Schools: A Brief History

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In my last post I provided a short history on international legal education in the United States. This time I offer the global equivalent: a (very) rough sense for the evolution of law school study requirements in a number of foreign countries, based on a combination of two UNESCO surveys from the mid-twentieth century and my recent research on contemporary practice.

Here are the results: Continue reading “The Study of International Law in Foreign Law Schools: A Brief History”

The Study of International Law in American Law Schools: A Brief History

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As I’ve discussed in other posts, international law has a fairly peripheral role in American legal education. Only eight schools require their students to complete a course on the subject, and the range of international electives tends to be quite limited. Wondering whether this is only a recent phenomenon or instead something with deeper roots, I did a little research into historical practice. It turns out that scholars have surveyed the state of international legal education in the United States multiple times over the course of the past century. By combining their work—including two particularly good pieces by Manley Hudson (1929) and William Bishop (1953)—with a recent survey of my own, we can gain at least a rough sense for how the curriculum has evolved over time. Here’s what I found:

First, international law had a role even in the Founding era. In 1779, for example, the law of nations was added to the instructional duties of the “moral professor” at William & Mary. In 1790, James Wilson devoted a “considerable part” of his lectures at the College of Philadelphia to the law of nations, while James Kent lectured on the subject at King’s College just a few years later. According to Hudson, “the law of nations had a recognized place in the pursuit of a legal education, and it formed a part of the learning of many of the better-educated lawyers” of the period. Continue reading “The Study of International Law in American Law Schools: A Brief History”

Residency Venue in Cases with Foreign Corporate Defendants

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A few years ago, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, in part to resolve, as the title suggests, uncertainties concerning the old venue statute. The effort succeeded in various regards, but Congress may have unwittingly created a new problem in the course of correcting others. Specifically, it’s not clear how to determine residency venue under 28 U.S.C. § 1391(b)(1) when at least one of the defendants is a foreign corporation.

The statute seems to provide two contradictory solutions: First, venue is appropriate in a district only if at least one defendant resides there and all defendants—including the foreign corporation—reside in the state in which the district is located. In this analysis, 1391(c)(2) decides residency questions for all corporate defendants such that a foreign corporation, like any other, is a resident of the given state only if it is subject to personal jurisdiction there. Continue reading “Residency Venue in Cases with Foreign Corporate Defendants”

More on Boehner’s Invitation to Netanyahu

Posted on Categories Constitutional Interpretation, International Law & Diplomacy, PublicTags , , , 1 Comment on More on Boehner’s Invitation to Netanyahu

As I mentioned in my previous post, House Speaker John Boehner recently invited Israeli Prime Minister Benjamin Netanyahu to address Congress on the subject of Iran’s nuclear program, and he did this without consulting the White House. Over the last few days, a number of commentators have argued that the invitation is unconstitutional because it interferes with the President’s authority over diplomatic relations. This morning I posted a response over at the blog Just Security; it’s available here.

Some Historical Perspective on Netanyahu’s Address to Congress

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Today there’s some interesting news from the realm of foreign relations law: Israeli Prime Minister Benjamin Netanyahu will give an address to Congress next month on the topic of Iran’s nuclear program, presumably to encourage legislators to support a hardline stance and perhaps to undermine the President’s ongoing efforts to achieve a diplomatic solution. To me, the noteworthy part is not so much the address itself, but rather the process by which it was arranged: the White House had no role. In fact, the Administration didn’t even know about it until today. John Boehner says that he invited Netanyahu without consulting officials from the executive branch because “Congress can make [such a] decision on its own.” The President’s Press Secretary responded that it was a breach of protocol for Netanyahu to plan a visit without first contacting the White House.

A couple of quick points. First, addresses of this type have a long historical pedigree. Consider these facts from the Office of the Historian of the House of Representatives, which has a fun website on the subject: Continue reading “Some Historical Perspective on Netanyahu’s Address to Congress”

Compelled Diplomacy in Zivotofsky v. Kerry

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To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President’s power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?

In a new essay in the NYU Journal of Law & Liberty, I discuss the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point. The essay is available here.