October 7, 2022
The first panel of The George Washington Law Review’s Volume 91 Symposium, “Structural Aspects of U.S. Foreign Relations Law,” was moderated by Ashley S. Deeks, University of Virginia Law school. The panel featured Professor Jean Galbraith, University of Pennsylvania Carey Law School; Jide Nzelibe, Northwestern Pritzker School of Law; and Michael Ramsey, University of San Diego School of Law. Professor Deeks began the panel by noting a core persistent question in foreign relations law and each of the panelist’s papers– how foreign affairs power is allocated among the three branches of government. Professor Deeks briefly introduced the panelists and provided each panelist with fifteen to set out the thesis and arguments in their respective papers.
Professor Jean Galbraith began her remarks by examining how the symposium could serve as an opportunity to examine the external factors that affect foreign relations law and the general institutional dysfunction our institutions today. Professor Galbraith posed an argument to the audience, asking participants to raise their hands in response to the question of whether they were: 1) not worried about the state of our democracy; or 2) very worried about the state of our democracy. The hands raised answered the latter. Professor Galbraith described the current state of affairs by noting that congress is more partisan than it it has ever been, that two of the last six elections have produced presidents who did not win the popular vote and that three current Supreme Court Justices were appointed by a President who did not win the popular vote. She emphasized that while this state of affairs was caused by factors that lie outside of foreign relations law, there are still powerful effects on foreign relations law. Professor Galbraith provided some concrete contributions that foreign relations law could offer our to help ease the disfunction, including, action by foreign affairs agencies and congress to secure elections from foreign interference, potentially looking to the military for norms of integrity that could be adopted by our election officials, and finally that foreign relations law can emphasize the importance of human rights.
Professor Jide Nzelibe described the theme of his paper as an analysis of the incentives that may prompt courts to intervene in foreign affairs controversy. Specially, Professor Nzelibe focused on how foreign affairs polarization may create a reason for the courts to intervene. His main claim centered around the idea that when foreign relations policy is summarily reversed across electoral cycles, the effect is that it is likely to disrupt reliance of private parties and that there is a tension between accountability and incentives. Additionally, Professor Nzelibe posed a theory that if foreign affairs policies swung rapidly across electoral cycles and that the president acted in a partisan manner, rather than as institutional actor, the courts might hesitate to give the high level of deference that they normally give to presidents regarding foreign affairs. Professor Nzelibe also discussed the potential issues with outsourcing foreign policy and provided an example pulling private parties out of a deployment will give rise to many private contract claims against the United States. Professor Nzelibe emphasized that these private parties will have standing because of their significant economic reliance and that litigation will increase.
Professor Michael Ramsey began his remarks with a call for a return to basics in constitutional allocations of foreign affairs law. Professor Ramsey emphasized that with clearer lines of authority and allocation our country would be able to function better. Specifically, Professor Ramsey stated that his paper serves as an attempt to find the structure for foreign laws and specifically advocates that we should return to the constitution’s basic structure. Professor Ramsey advocated that the reason we do not see allocation of general foreign affairs law is because the framers thought of them as regular powers and that they should be allocated in the same way. One area of uncertainty that Professor Ramsey noted is the uncertainty congress can delegate foreign affairs power. Professor Ramsey reaffirmed that the president has law enforcement power in foreign relations law which provides him with the authority to, among other powers, set foreign policy, enter non-binding agreements, and select ambassadors. Professor Ramsey concluded his remarks by noting that courts have the power to “say what the law is” and that there is no specific foreign affairs exception to that.
Following each of the Panelists’ discussions about their papers, Professor Deeks posed a question to Professor Nzelibe and Professor Galbraith surrounding the tension in their papers on the issue of what role the court will play in constraining executive policy. Professor Deeks noted that Professor Galbraith was skeptical that courts would help constrain executive policy while she noted that Professor Nzelibe had advocated that courts may be more sensitive to policy flips by administration and in response may provide less deference. Professor Nzelibe agreed with the characterization and provided a hypothetical about Justice Gorsuch. In her response, Professor Galbraith noted that one of the key disagreements they have is on how much the court will credit reliance interest of parties, especially in light of the Dobbs decision.
After the panelists responded to Professor Deeks’ question, she opened up questions to the general audience. The first question was directed at all three of the panelists and asked each of them about their conceptions about the rule of law. Professor Ramsey emphasized he believes in formalist rule of law in foreign affairs, Professor Galbraith cited the UN Secretary General rule of law as being representative of her views, and Professor Nzelibe noted that he has a more agnostic view about the rule of law. The panelists fielded other questions from the audience such as their views on originalism, congress’ authority to check the executive branch in foreign relations law, and specifically whether congress has any power to put a condition on approval of a treaty that would require the president to seek approval before pulling out of a treaty. Additionally, Professors Murphy, Koh, and Swaine each provided helpful insights to each of the panelists on some of the more challenging claims in their papers and posed questions to each panelist to help them think critically about their papers.
This summary was authored by Lindsay Wilson, Membership & Projects Editor.