The global determinants of U.S. foreign affairs law.

• Author: Abebe, Daniel
• Position: Introduction to IV. An Evaluative Metric for External Constraints C. Alternatives to Polarity, p. 1-28

A recurring debate in foreign affairs law focuses on the appropriate level of congressional and judicial deference to the President. In answering that question, most scholars focus on the Constitution, Supreme Court precedent, and historical practice for guidance, or evaluate the expertise and strategic incentives of Congress, the President, and the courts. For these scholars, the inquiry exclusively centers on domestic, internal constraints on the President. But this analysis is incomplete. Determination of the appropriate level of deference has consequences for how the President can pursue U.S. interests abroad If the United States wants to be successful in achieving its foreign policy goals, it requires some consideration of the external world in which the President acts. This Article challenges the conventional wisdom by arguing that the appropriate level of constraint on the President requires an evaluation of both internal constraints from domestic sources and external constraints from international politics. It provides a framework to integrate both sets of constraints, develops a theory of external constraints, and describes the normative implications of this approach for foreign affairs law. The Article argues that the failure to account for both internal and external constraints and to recognize their relationship might yield a deference regime that either does not provide the President with sufficient freedom to pursue U.S. interests (over-constrained), or leaves the President free to act without sufficient congressional and judicial oversight (under-constrained). It further explains the conditions under which higher and lower levels of constraints are preferable and moves us closer to determining the appropriate level of deference to the President in foreign affairs.

1. INTRODUCTION II. THE DEBATE ON THE ROLE OF INTERNATIONAL POLITICS IN FOREIGN AFFAIRS III. UNDERSTANDING THE RELATIONSHIP BETWEEN CONGRESS AND THE PRESIDENT A. Principal-Agent: Congress and the President B. Why Constrain the President? C. Internal Constraints and the President D. External Constraints and the President E. Which External Constraints? IV. AN EVALUATIVE METRIC FOR EXTERNAL CONSTRAINTS A. Polarity as a Proxy for External Constraints B. Measuring External Constraints C. Alternatives to Polarity 1. Material Power v. Soft Power 2. The Role of Regime Type 3. International Organizations 4. International Law and Norms 5. NGOs and World Public Opinion V. A FRAMEWORK OF EXTERNAL AND INTERNAL CONSTRAINTS A. Competing Models of Internal Constraint 1. Minimum Constraint Model 2. Maximum Constraint Model B. Model One or Model Two? C. External Constraints and Agency Costs 1. Substitutability 2. Costs and Benefits of Redundancy 3. Over and Under Constraint 4. Agency Costs in a Unipolar World VI. THE FRAMEWORK IN OPERATION--IMPLICATIONS FOR FOREIGN AFFAIRS LAW A. Incentives of Congress and the Courts B. Implications for Deference in Foreign Affairs VII. CONCLUSION I. INTRODUCTION

   Perhaps the most important question in foreign affairs law concerns the appropriate level of congressional and judicial deference to the President. In other words, how much, if at all, should Congress and the courts constrain the President? The two main approaches to the question are legalist and functionalist. The legalist approach turns to the Constitution, Supreme Court precedent, and historical practice for guidance, while the functionalist one hinges on an evaluation of institutional competencies and incentives. Despite these differences, both legalist and functionalist approaches focus on the role of Congress and the courts as constraints on the President. So, to determine the appropriate level of deference to the President, scholars evaluate only domestic, internal factors.

   But is that sufficient? Determining the appropriate level of deference to the President may turn on more than domestic, internal constraints from the Constitution, congressional statutes and case law. For example, let's assume the United States decides to promote human rights, democracy, or free trade. Whatever the foreign policy goal, our ultimate aim is to structure our foreign affairs framework to make it easier for the President to achieve U.S. interests, while ensuring that the President is not completely unfettered in ways that raise costs for the United States. We might begin our inquiry by looking to internal or domestic factors, but we would surely be unwise to end our analysis there. Most critically, we also need to know something about the external world in which the United States, through the President, is trying to achieve U.S. foreign policy goals in the teeth of countervailing forces. My aim here is to explore the complex consequences of this simple observation.

   One way to understand the role of external factors in foreign affairs is to frame the relationship between Congress and the President in principal-agent terms. Imagine that Congress is the principal and the President is its agent in foreign affairs. Congress wants the President to use his expertise in foreign affairs to pursue its interests, while still constraining the President to ensure that he doesn't deviate from congressional interests. Ideally, Congress wants to optimize the level of constraint to strike a balance: The President can use his specialized competency to achieve U.S. foreign affairs goals, while staying loyal to the interests of Congress.

   Consider one example of the problem. If the United States is the world's only superpower, the President can more easily pursue U.S. interests, whatever they might be. Since no other country can match the United States, the external constraints on the President are weak. The United States has substantial freedom of action and the President--the agent of Congress--will have a greater range of opportunities to deviate from the principal's wishes. However, if the United States is no longer a superpower and is operating in a world with multiple powerful countries like China, India, and Russia, the President will have greater difficulty pursuing U.S. interests. Why? In a world with other powerful countries, the United States will necessarily have to compete with them in pursuing its foreign affairs goals, and the presence of such countries will constrain the United States' ability to achieve its goals. These countries represent international or external constraints on the President or agent. With these external constraints, the President's range of opportunities to deviate from the principal's interests narrows. What thus becomes clear is that the constraints on the President exist on two levels, internal and external, and understanding the appropriate level of deference to the President requires a tool that integrates both those internal and external constraints into a single analytic framework.

   This Article provides such a framework and argues that we cannot determine the appropriate level of constraint on the President solely by resorting to the Constitution's text, theories of separation of powers, historical practice, or institutional competencies; rather, we need to know something about the United States' role in international politics. The claim is that the level of internal constraints on the President should vary with the level of external constraints on the United States. Internal constraints generally refer to the level of deference to or oversight of the President. External constraints, however, are linked with the presence of other powerful countries. For example, in a multi-polar world, (1) there are several other powerful countries competing with the United States to achieve their foreign affairs goals. Similarly, in a bipolar world, (2) there is one other powerful state challenging the United States for dominance. In each example, the presence of these competing states creates strong constraints on the United States, making it more difficult for the President to pursue U.S. interests.

   But, if the United States is the single most powerful state or hegemon of a unipolar world, (3) the external constraints on the United States are weak because there are no other competing powerful states. The United States has greater freedom to pursue its interests. In other words, variation in the structure of the international politics--multi-polar, bipolar, or unipolar worlds--results in variation in the strength of external constraints on the United States. This conclusion produces a simple normative logic: as external constraints strengthen, internal constraints should weaken; as external constraints weaken, internal constraints should strengthen.

   Perhaps critically, this approach is agnostic about the normative substance of U.S. foreign policy. It avoids the problem that often recurs in the foreign affairs literature, namely that scholars support lower levels of constraint when they prefer the President's policies but then shift and support higher levels of constraint when they dislike a subsequent President's policies. This approach simply suggests that if we want the United States to be successful in the achievement of its national interests--whatever they are or should be--determining the appropriate level of deference requires some consideration of external constraints.

   This approach also avoids the ubiquitous baseline problem for deference; since it is extremely hard to determine if the status quo is appropriate, too deferential, or too constraining, normative arguments about where the baseline should be are often driven by policy preferences. But my approach simply says that, wherever the baseline is or should be, external factors must be included in the analysis.

   The importance of understanding the relationship between external constraints and the President's foreign affairs authority has grown dramatically in light of the changes in international politics. The rise of China, (4) the emergence of the developing world, (5) and the United...