Globalization and Structure

Abstract

Globalization creates pressure for increased international cooperation, and to reap the benefits of collective action, international cooperation is likely to take forms that resemble those of the American administrative state. An international regulatory regime generally will need to reach all activity, regardless of each individual nation’s internal hierarchy of authority. Although relatively new to the international scene, these forms and orders should sound familiar to students of the American administrative state. Just as new international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords, for example, had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm, as discussed in Wickard v. Filburn. The New Deal’s stretching of constitutional doctrine sparked a confrontation between President Franklin D. Roosevelt (FDR) and the Supreme Court, which initially espoused a narrower and less flexible vision of federal power and the role of administrative agencies. Without a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law. This article will offer the outlines of such a theory.