For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).
Jide Nzelibe
Professor Bradley’s
most recent book, Historical Gloss and Foreign Affairs, makes a valuable
contribution to our understanding of the role of historical practice in the constitutional
allocation of foreign affairs powers.
His normative approach is largely Burkean: once we accept that legal
stability is a compelling objective, it makes sense for courts to privilege the
longstanding practices of the political branches in foreign affairs over other
alternatives as a source of constitutional understanding.
But Professor Bradley
also recognizes that marginal changes to the constitutional structure in
foreign affairs may sometimes be necessary to respond to unforeseen
geopolitical developments. The challenge
is that the constitutional amendment process under Article V is too rigid. Significant changes to the foreign affairs
powers have nonetheless occurred throughout U.S. history and have always
occurred outside the formal amendment process mandated by Article V. Professor Bradley documents many of these changes
and argues that they may be justifiable on the basis that they have produced a
better state of affairs and have been ratified by the continuous practices of
the political branches. One of his most striking
examples is that executive agreements have since displaced treaties as the
primary process through which the United States enters into international
agreements.
It is the nature of Professor Bradley’s account of constitutional change outside of Article V that I wish to focus my attention. What are the conditions under which changes to constitutional practices in foreign affairs can be perceived as legitimate, even if they are imposed unilaterally by presidents or other political actors? Professor Bradley suggests two pragmatic conditions. First, the change should be ratified by downstream political actors across multiple electoral cycles. Second, the constitutional change should be gradual and incremental in a manner analogous to the evolution of the common law. In this account, presidents and other political actors can tinker on the margins with constitutional practices in foreign affairs and allow them to be abandoned or gradually refined if they fail to work out. Presumably, those incremental changes to the foreign affairs constitution that stand the test of time are likely to be mutually advantageous, or else they will be discarded.
In pondering how the
foreign affairs constitution may change over time, three factors are worth considering.
In my view, these factors do not call into
question Professor Bradley’s central thesis, but they may require us to think
critically about the outer limits of beneficial constitutional evolution
outside of Article V. First, the constitutional changes precipitated
by the President in foreign affairs need not always be gradual or incremental. They can be sudden, significant, and
disruptive. Second, certain changes to
the constitutional structure in foreign affairs may become sticky even when
they are not welfare-enhancing. For
instance, it is plausible that vested interests may have sufficient clout to protect
constitutional changes that benefit them at the expense of the rest of society.
Third, constitutional changes may set in
motion processes and bureaucratic arrangements that become relatively
entrenched, making reversals or even tweaks by Congress or future presidents
difficult.
Thus, Congress or
future presidents may acquiesce to a new constitutional change not because they
find it mutually beneficial but because they are confronted with what seems
like an irreversible fait accompli.
Conversely, constitutional arrangements in foreign affairs may collapse
not necessarily because they are inefficient or poorly adapted to present
conditions but because political actors may lack sufficient support from vested
interests to ward off downstream threats.
The contemporary
decline in the oversight role of the Senate Foreign Relations Committee
underscores this point. Historically, at the height of its institutional
prominence during the post-WWII era, this Senate Committee served as a bulwark
against the risk of executive branch overreach in foreign affairs. It was infused with a sense of purpose and
tended to attract the most capable Senators who took their oversight roles very
seriously.
However, without the
support of well-connected vested interests and a decline in bureaucratic
capacity, the Senate Committee lost its ability to serve as a powerful
counteracting force against presidential empire-building in the post-Cold War
era. In her extensive study of the
Committee, spanning the years 1947 to 2008,
Linda Fowler argues that the breakdown of the Cold War consensus,
frequent turnover, expanded committee portfolios, and flattening of the
committee hierarchy all eventually contributed to the rapid loss of its
prestige and its ability to recruit informed and experienced Senators.[1] Moreover, the changes that precipitated the
decline of the committee’s influence were not necessarily incremental; on the
contrary, there was a dramatic erosion of the Committee’s oversight activity in
the mid-1990s. Fowler argues, quite
convincingly, that creating a legislative support agency devoted to foreign
affairs, similar to the Congressional Budget Office (CBO), may help institutionalize
the Committee’s advisory and oversight roles.[2]
The decline of the
Senate Foreign Relations Committee suggests that institutional arrangements in
foreign affairs may not persist simply because they may be socially beneficial. It may also help if such arrangements enjoy
the support of deep-pocket vested interests.
Thus, one way to salvage the Senate Foreign Relations Committee’s
influence may be to expand the base of vested interests that profit from
institutionalizing its oversight role. However,
in the absence of such increased institutional capacity fueled by vested
interests, it is unlikely that the Senate Foreign Relations Committee, and by
extension, Congress, will play much of a meaningful role in shaping future
constitutional practices that may eventually constitute historical gloss.
While vested interests
may sometimes benefit from the stability accorded by historical gloss in
foreign affairs, they may also benefit from developments that subvert it. Consider, for instance, the dramatic breakdown
of the convention of presidential restraint in national security protectionism. Under
section 232 of the Trade Expansion Act of 1962, Congress delegated to the
President significant discretion to impose import restrictions that may impair
national security.[3] However, throughout the
statute’s history, presidents exercised strategic self-restraint and rarely
awarded relief to industries that filed petitions on national security grounds.
In 2018, President Trump decided to buck
this longstanding presidential convention and imposed a 25 percent tariff on
imported steel articles and a 10 percent tariff on aluminum imports from
various countries. That decision sparked an international outcry, leading to
retaliatory measures from the European Union and other trading partners.
What is somewhat
intriguing is the rapidity with which this convention of presidential restraint
broke down. Of course, one might quibble
and argue that this convention was not a legally binding practice. But it is precisely such longstanding executive
branch conventions that constitute the grist of the historical gloss that Professor
Bradley describes. Such conventions are
likely to play a role in the judicial shaping of legal understanding when the
constitutional text is vague or indeterminate.
In any event, this
abrupt and sudden change in executive branch practice paved the way for a
broader range of industries to lobby to protect their products from foreign
competition on national security grounds. This non-incremental move has already unleashed
forces that might make it more difficult for a future administration to reverse
course, thus setting the stage for a new executive branch convention that
shapes historical gloss. The Biden
administration inherited this new norm of greater presidential discretion in
national security protectionism and sought to adapt it to pursue its policy
purposes. If this new convention endures
over multiple electoral periods, it may be because it reinforces and entrenches
a pattern of industry rent-seeking on national security grounds.
Thus far, the discussion suggests some friendly amendments to Bradley’s rich account of constitutional change in foreign affairs outside of Article V. A special lesson in this analysis may be that not all longstanding constitutional changes in foreign affairs are equally appealing on historical gloss grounds.
First, constitutional changes forged by the practices of the political branches may be most normatively appealing and deserving of judicial deference when the distributional effects of such changes are diffuse and long-term. The more common examples of historical gloss in foreign affairs provided by Professor Bradley—such as congressional-executive agreements, the delegation of authority to use force, and the power to recognize foreign governments—likely fit this bill. In such cases, the judicial costs of second-guessing the established wisdom of the political branches on how to share their authority are likely to be too high. At the same time, any benefits from judicial oversight are likely to be too speculative. Courts are not especially suited to addressing constitutional grievances in foreign affairs that have diffuse and long-term effects. Moreover, since vested interests are likely to be indifferent to such constitutional changes, there is less likely a risk that the process of change may be subject to capture or parochial considerations.
Second,
and by contrast, constitutional changes forged through historical gloss may be
less deserving of judicial deference when the distributional effects of such
changes are likely to be immediate and concentrated. To be sure, these kinds of
constitutional changes are also likely to provoke intense political
opposition. However, the success of the
political branches in overcoming any opposition and imposing change does not
necessarily indicate that such change will be welfare-enhancing. For instance, it is plausible that the
durability of such constitutional change may be achieved by entrenching the
base of government support in one constituency (for instance, import-competing
groups) at the expense of another (for instance, export groups).
To
summarize, any attempt by the political branches to impose a new constitutional
practice in foreign affairs that foists radically unequal burdens on social
groups may be worthy of greater judicial scrutiny. In such circumstances, more intrusive judicial
review is likely to be information-forcing. Moreover, parties are more likely to meet the
standing threshold for bringing claims when they are singled out for special
burdens in foreign affairs. Justice
Jackson long ago acknowledged the need for judicial intervention whenever there
are risks of uneven burdens in the application of the laws :
[N]othing
opens the door to arbitrary action so effectively as to allow those officials
to pick and choose only a few to whom they will apply legislation and thus to
escape the political retribution that might be visited upon them if larger
numbers were affected. Courts can take no better measure therefore to assure
that laws will be just than to require that laws be equal in operation.[4]
Jide Nzelibe is the Howard and Elizabeth Chapman Professor
of Law at the Northwestern Pritzker School of Law and may be reached at j-nzelibe@law.northwestern.edu.
[1] Linda L. Fowler, Watchdogs on the Hill: The Decline
of Congressional Oversight of U.S. Foreign Relations (2015)
[2] See id. at 198-99.
[3] See Trade Expansion Act of 1962 § 232, 19
U.S.C. § 1862 (2018).
[4] Ry. Express Agency, Inc. v. New
York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring).