The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.
Globalization is transforming American society. As never before, the U.S. economy depends on international trade, the free flow of capital, and integration into the world financial system. International events affect domestic markets and institutions more than ever. Advances in communications, transportation, and the Internet have brought great benefits to the United States. But the September 11, 2001 attacks also revealed globalization’s dark side. Terrorism, refugee flows, pollution, drug smuggling, and crime depend on the same channels of globalization as the world economy.
These economic, technological, and social changes have occurred because of the acceleration of communication, transportation, and information systems across national borders. Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in goods and services; (3) the easy movement of capital and labor across national borders; (4) the rise of major transnational networks, such as international drug cartels, international crime-fighting regimes, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.
These profound changes present challenges to the American constitutional order because they give rise to international law and institutions that demand the transfer of sovereignty in response. To limit carbon emissions, proposed follow-ons to the Kyoto accords seek to regulate energy use throughout the world. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry. These multilateral treaty regimes seek to regulate private activity under the control of independent sovereign nations. They ask states to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies, such as the United Nations, the International Court of Justice, or the World Trade Organization, that operate along undemocratic lines and remain unaccountable to any nation.
These efforts at global governance create tension with American constitutional controls on state power. Recent examples abound. To what extent do international court judgments have force in American law, preempting valid judgments by domestic courts? Can the President and the Senate make an international treaty that binds the United States to either legalize or criminalize abortion, or are issues of family law reserved to the states? Should international and foreign laws be used to interpret the U.S. Constitution? May Congress and the President delegate federal authority to international organizations to regulate domestic conduct, for instance, over industrial production or carbon emissions? Must American courts enforce the decisions of international courts banning the death penalty or freeing international terrorists?
Many scholars of international law argue that globalization’s demands justify abnormal powers for the federal government. Treaties on global warming or the environment, for example, should have a reach beyond the Constitution’s normal limits on the powers of Congress. International institutions like the WTO or the ICJ should enjoy the power to issue direct orders in the U.S. legal system, overcoming contrary policies at the state or even federal levels. States should have no voice in responding to globalization. Courts, as the least democratic branch, should play a primary role in incorporating global governance at home without the intervention of the elected branches of government.
These efforts aim at nothing less than the erosion of American national sovereignty. Anne-Marie Slaughter, a former Princeton dean and Obama State Department Official, argues that networks of foreign and international officials and institutions will develop independent, common legal standards that will be imposed on nations. According to her, “where the defining features of the international system are connection rather than separation, interaction rather than isolation, and institutions rather than free space, sovereignty as autonomy makes no sense.” Or, as Harvard scholars Abram and Antonia Chayes have written a “new sovereignty” has emerged where the international order is governed not by independent nation-states but by a “tightly woven fabric of international agreements, organizations, and institutions that shape their relations with one another and penetrate deeply into their internal economics and politics.”
These responses to globalization pose the most direct challenges to the fundamental principle underlying the system of government in the United States: popular sovereignty. Unlike other nations, which locate ultimate power in a nation, in a monarch, or in a government, the U.S. Constitution locates sovereignty in the People of the United States. The various institutions of the U.S. government are merely agents of the People, whose powers are delegated exclusively through the U.S. Constitution. The American people hardwired two principles into the U.S. Constitution’s structure: the separation of powers and federalism.
Popular sovereignty reflects a basic American commitment to govern by exclusively constitutional mechanisms, such as federalism and separation of powers, both of which create the political institutions through which the people can exercise power. These constitutional structures may prove burdensome or inefficient, but they enhance accountability and transparency in government—important features of constitutional democracy. Globalization poses real challenges to American constitutional law, but the answer is not, as some would have it, abandoning the core principle of the American political system. Popular sovereignty is to be ignored at one’s peril.
Grasping the Constitution’s application to the issues raised by globalization depends more on the basic structures of government set out in the Constitution’s text, the traditions of American political practice, and even judicial precedents. The Framers’ most important decision was to maintain a distinctive structure for the exercise of governmental power at home: lawmaking through congressional bicameralism followed by presentment to the President. At the same time, the Framers believed that foreign affairs demanded a more flexible process that relied more on presidential leadership, given its functional advantages in acting with speed, decision, and dispatch. We believe that the best way to approach globalization is to tame it by subjecting its domestic effects to the same separation-of-powers and federalism rules that apply to any other law. But for conduct and events abroad, we believe that the Constitution largely frees the government from the straitjacket of the domestic rules of the game, and directs authority to the branch most functionally suited to such quick and momentous decisions: the executive.
Three constitutional doctrines can avoid globalization’s problems while still permitting the United States to accrue the benefits of international cooperation. First, treaties should be presumed to be non-self-executing: in other words, treaties do not take effect as enforceable domestic law without an intervening Act of Congress. Second, the President must possess the primary authority power to terminate international obligations and to interpret international law. Third, states must assume a leading role in the implementation of international law and agreements, especially in areas (such as family and property law) that have remained traditionally in their control. All of these mechanisms shift basic decisions between the pressures of globalization and the goals of a democratic constitutional government to the executive and legislative branches of the federal and state governments.
These doctrines rest on both “functional” and “formal” grounds. Such solutions are supported not only by the text and history of the Constitution and Supreme Court precedent, but also by their functional consequences. While all three doctrines have strong historical and precedential foundations in the U.S. constitutional tradition, one can reasonably disagree about them. Rather than try to establish these doctrines as constitutional requirements, these doctrines should be adopted because they are prudent. To require the political branches of government to fulfill the mandates of international law simply makes sense as a matter of consequences. They prevent international treaties and organizations from creating a loophole in the American constitutional system that would grow only bigger as globalization advances apace.
From a normative perspective, the legislative and executive branches of the federal and state governments are the institutions best positioned to reconcile the pressures of globalization with the U.S. legal system. These institutions are able to release the pressures of globalization on the American constitutional system because they enjoy the greatest political accountability and functional expertise in the conduct of international relations (in the case of the executive branch) or local public policy (in the case of the state governments). Conversely, we do not think that the American judiciary should play the kind of autonomous role that many legal academics and policy analysts wish for. Although we believe courts should maintain an independent place, we also believe courts should maintain their traditional deference to the executive and the legislative branches in affairs of state, in political questions, in foreign relations, and in war.
While relatively young, the new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative 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 had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of 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.
Like nationalization, globalization will inevitably call on us to reconsider the same fundamental questions: the proper scope of the federal government’s regulatory power; the balance of authority between the President and Congress; and the appropriate role of the courts. We may only belatedly realize the consequences of economic and social transformation on constitutional doctrine. The inability of international organizations to provide legitimacy commensurate with the scope of their delegated authority—when combined with the serious strains that their delegations place on the federal government’s own legitimacy—weigh strongly in favor of enforcing the Constitution’s formal processes for exercising public power. A formalist approach would confer the greatest possible level of political and popular acceptance because any consent to international law and institutions would then occur with the full extent of the Constitution’s legitimating force. Such an approach might require rejecting some delegations, but it would at least ensure the full measure of domestic political legitimacy to support those that survive.
Any fundamental change in the Constitution’s structures to accommodate globalization would be a terrible mistake. Putting aside their historical pedigrees, we think that federalism and the separation of powers today guarantee a number of normative benefits for the United States. Federalism, for example, creates policy competition among states; citizens can maximize their preferences by choosing to live in states with policies that they prefer. Federalism encourages innovation in government policy—states serve as fifty “laboratories of democracy” which conduct experiments at solving social problems—that will lead to more effective national solutions. Federalism allows for the more effective provision of public goods—or certain benefits, such as schools, roads, regional transportation systems, parks, and law enforcement—that affect smaller geographic units rather than the nation as a whole. Federalism has significant advantages above and beyond its historical presence in the Constitution.
The separation of powers also provides significant benefits beyond the happy accident of its inclusion in the Constitution. Dividing legislative power between two houses of Congress and the President demands that a high level of consensus exist before the government exercises its powers. As the level of consensus increases, the law is more likely to express the will of the majority and to represent the better judgment on the right trade-offs for society. Multiple hurdles for the legislative process reduce the chances that special interest groups will use domestic regulation to capture benefits for themselves at the public’s expense. The separation of powers encourages the vigorous exercise of national powers at the right moment. The President can lead the nation into war, protect the national security, or conduct foreign affairs with “decision, activity, secrecy, and dispatch,” in the words of Alexander Hamilton in Federalist No. 70. By openly allocating power to the branch best suited for its exercise, the separation of powers encourages accountability to the electorate. The separation of powers provides a safeguard for liberty by making it difficult for any one party or group to take over the controls of government altogether, and by giving each of the branches the means to frustrate the plans of the others.
America’s decentralized government, both between the national and state governments and between the executive, legislative, and judicial branches, discourages a rush into radical reforms or sweeping alterations of the basic rules of the political system. The American Constitution may allow grievous injustices—such as slavery and segregation—to persist for long periods of time, but it also creates a risk-averse political system that prevents the United States from swinging wildly in one direction or another. Altering federalism and the separation of powers to allow for greater international cooperation may seem desirable now, but the long-term benefits may not exceed the costs, if those costs are likely to weaken the Constitution’s governing principles in domestic affairs. The American system can accommodate the demands of globalization within existing doctrines of the separation of powers and federalism, but with some difficulty. That is worth the price to preserve the constitutional principles that have served the nation so well, for so long.