International Delegations, the Structural Constitution, and Non-Self-Execution

Abstract

This Article considers the constitutional implications of U.S. delegations of authority to international institutions. Since World War II, there has been a vast growth in the number and importance of international institutions. Although some of these institutions are merely forums for discussion and negotiation, many of them exercise judicial, legislative, regulatory, investigative, or prosecutorial authority. Despite its isolationist reputation, and despite recently announcing that it would not become a party to the International Criminal Court, the United States has committed itself to many of these institutions. By virtue of these commitments, the United States has consented to have international institutions make certain decisions, and take certain actions, that can affect the United States' rights and duties under international law and, in some instances, the enforceability of U.S. domestic law. Although the number and extent of future U.S. commitments will likely vary depending on the presidential administration, the general trend internationally - as illustrated most dramatically by developments the European Union - is towards vesting ever-increasing authority in international institutions. Without prejudging their validity, transfers of authority by the United States to international institutions could be said to raise "delegation concerns." These concerns relate to democratic accountability, shifts in the balance of power between the federal branches, and erosion of the U.S. system of federalism. By transferring legal authority from U.S. actors to international actors - actors that are physically and culturally more distant from, and not directly responsible to, the U.S. electorate - these delegations may entail a dilution of domestic political accountability. This accountability concern may be heightened by the lack of transparency associated with some international decisionmaking, which in turn may increase monitoring costs and, relatedly, the potential for what economists call "rent-seeking." In addition, transfers of authority to international institutions may enhance the power of one branch of the federal government relative to the others. Specifically, these transfers may enhance the relative power of the Executive Branch, both because they often delegate the powers of other branches, and because the United States is represented in these institutions by Executive Branch agents. Finally, delegations of authority to international institutions - as with the expansion of international law more generally - have the potential to erode U.S. federalism by enhancing the power of the entire federal government vis-a-vis the states. Even if these effects seem relatively modest with respect to particular delegations, the cumulative effect may be more problematic. Although these delegation concerns are not entirely new, they have become much more pronounced in recent years. In the domestic context, similar concerns about accountability and aggrandizement of power are addressed by a variety of separation of powers and federalism doctrines. I will argue in this Article that, whether viewed from a formal or functional perspective, these structural constitutional doctrines are relevant to international delegations. I will also argue that at least some of the constitutional concerns associated with these delegations can be addressed by treating the decisions and actions of international institutions as "non-self-executing" - that is, as not creating enforceable federal law within the United States. As I will explain, this has in fact been the approach intuitively followed by U.S. courts in recent years when confronted with delegation concerns, and it also is an approach increasingly mandated by the U.S. treatymakers and Congress.