Taming Globalization: International Law, the U.S. Constitution, and the New World Order.

Author:Daugirdas, Kristina
Position:Book review
 
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Taming Globalization: International Law, the U.S. Constitution, and the New World Order. By Julian Ku and John Yoo. Oxford, New York: Oxford University Press, 2012. Pp. viii, 272. Index. $35.

According to Julian Ku of Hofstra University School of Law and John Yoo of the University of California, Berkeley, School of Law, globalization poses a significant threat to the U.S. constitutional system of governance. In their recent book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, they seek to reassure readers that this threat can be deflected. If their prescriptions are followed, Ku and Yoo argue, the United States can avoid constitutional problems while continuing to reap the benefits of international cooperation. Ku and Yoo insist that they are neither trying to stop globalization (a hopeless endeavor in any event) nor categorically opposed to the international community's efforts to regulate globalization's effects. Instead, their approach is "accommodationist" (p. 13); they offer three proposals to alleviate the "tension" between international governance and the U.S. Constitution (p. 2). First, U.S. courts should presume that treaties are not self-executing and should enforce them only if Congress has adopted implementing legislation. Second, customary international law (CIL) should have the status of federal law only if Congress has adopted legislation implementing the CIL norm. In the absence of such legislation, Congress and the courts should defer to both presidential interpretations of CIL and presidential decisions about compliance with CIL. Third, individual U.S. states ought to have more autonomy in deciding whether and how to implement international obligations, especially those that affect traditional state interests.

Taking the position that academics have "battled to a stalemate" about whether these proposals are constitutionally required (p. 11), Ku and Yoo seek, instead, to defend them on functional grounds--that is, on the basis of their consequences for democracy and foreign-policy decision making within the United States. As explained below, the authors' functional analysis is curiously truncated. Adopting their proposals would make it harder for the United States to realize the benefits of international cooperation. Ku and Yoo ignore this consequence in their functional analysis, an omission that is particularly strange given the authors' acknowledgment that these benefits can be substantial.

When the omitted costs of Ku and Yoo's proposals are added back into the equation, it becomes clear that, despite their assurances, Ku and Yoo are not actually offering a prescription for "how the American constitutional system can embrace the intensive levels of cooperation required to tackle global problems" (p. 254). Instead, they are offering a prescription for hampering international cooperation in the service of a contested view of what the U.S. Constitution requires.

How exactly do Ku and Yoo frame the problems that their proposals would alleviate? In their view, globalization and global governance render two aspects of the U.S. constitutional order particularly vulnerable: federalism and the separation of powers. Federalism is imperiled because international agreements increasingly regulate subjects that used to be within individual U.S. states' control. As examples, Ku and Yoo cite not only human rights treaties but also treaties that govern wills and child custody. Separation of powers is threatened, in their view, by international regulatory responses that delegate authority away from Congress and the president to international institutions (p. 16). The North American Free Trade Agreement (NAFTA) exemplifies this concern. Under NAFTA, duties on goods from Canada or Mexico can be challenged only before binational arbitration panels, and the decisions of those panels cannot be appealed to any U.S. institution. (1) For this reason, Ku and Yoo maintain, NAFTA effects a "complete" transfer of "a sovereign power of the United States (the power to impose customs duties on imports)" to an international institution (p. 31).

Ku and Yoo hope to safeguard more than just federalism and the separation of powers, however. Their functional analysis specifies four additional goals. They seek to enhance democracy--"that is, a cluster of values, including popular representation, accountability, transparency, and deliberation, among others" (p. 104). They also want to ensure that U.S. foreign-policy decisions are coherent (that is, the United States speaks with one voice), well-informed (that is, based on comprehensive information that is collected and analyzed by foreign-relations experts), and nimble enough to keep pace with world events. Ku and Yoo build a functional case for their three proposals by comparing how well different branches of the federal and state governments are able to serve these four goals. The authors acknowledge that they "necessarily base [their] institutional assessment on certain generalizations and assumptions about how these institutions work, because it would be difficult to conduct a sufficiently rigorous empirical test of these functional claims" (p. 127).

In making the case for their first proposal, Ku and Yoo argue that non-self-execution enhances political accountability and deliberation by involving the House of Representatives in treaty implementation. The House is designed to be especially responsive to the electorate's demands and includes members who hold a wide range of policy views. Requiring its participation in treaty implementation will "encourage the production of information, cause viewpoints on the extreme ends of legislator preferences to confront more moderate views, and result in the giving of public justifications and reasons for decisions" (p. 208). At the same time, non-self-execution prevents the courts--the most politically insulated branch of the federal government--from taking any steps at all to enforce treaties unless and until Congress as a whole has acted. The political branches' superior ability to collect and assess information supports this allocation of roles, Ku and Yoo argue. They claim that the need for timely policymaking does too, although their assertion that "Congress can enact nationwide rules more quickly than the courts" (p. 109) is certainly contestable.

Ku and Yoo undertake a similar analysis to justify their proposal regarding CIL. They maintain that the United States will be able to pursue its foreign-policy goals more effectively if compliance with CIL is discretionary rather than mandatory, at least when Congress has not adopted legislation requiring compliance. Based on a comparative institutional analysis, Ku and Yoo argue that the executive branch is better suited than the courts to decide when compliance is a wise policy choice for...

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