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Thursday, February 17, 2005

More Medellin (ex ante) and International Delegations

PG gives a great summary below about the debate here next week. I want to throw in my two cents and tie it into what, to me, is the most interesting current constitutional law debate.

In signing the Vienna Convention on Consular Relations, the U.S. agreed to compulsory jurisdiction in the ICJ concerning interpretation of the treaty. When the U.S. government failed to contact the Mexican consulate concerning the death sentences of the mexican nationals, Mexico brought Avena before the ICJ and got a ruling that the U.S. did in fact violate the treaty.

The concern for conservative constitutional scholars such as Curtis Bradley is that this clause of the treaty giving the ICJ power to interpret our obligations under the treaty consists of a delegation of lawmaking authority to an international body. This issue is always viewed in light of the domestic nondelegation doctrine which constrains congress' ability to delegate its lawmaking authority to other domestic bodies. Since Article I vests "all legislative power" in the congress, courts have been reluctant to allow congress to delegate the power away.

Now it's clear that this has been relaxed, that the delegations are clearly okay as long as a plain statement accompanies the delegation. But the concerns in the international realm are far more intense. There is a significantly inreased lack of transparency with international bodies making decisions, a dilution of domestic accountability, and an increase in power of one branch over another--typically the executive branch. All these concerns militate a far more exacting delegation review in the international realm.

There are other concerns, such as the limits that Article III imposes on such a delegation, whether the constitution requires that an Article III judge have some review of these decisions. But these concerns are fare more murky . . . a discussion for another post.

So that's the overview, introduction to the debate. The event will surely be very exciting. We'll be live-blogging it and hosting lengthy discussion on the issue afterwards, maybe even accompanied by some grown-up guest bloggers.


Blogger Rod said...

You should read the article in the Columbia Law Review by Edward Swaine on international delegations...even though its utterly absurd and totally wrong.


2:56 PM  
Blogger Publius said...

Yes, it's a very interesting article. He does a great job cataloguing the cases and the literature. But his conclusion--that international delegations actually support federalist principles--makes no sense. He thinks that since it diffuses power across more bodies, it supports the "risk-spreading" argument for federalism. I guess that is somewhat correct, but it pushes sovereignty further away from the people--what I see as the primary principle of federalism.

2:59 PM  

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