Past Violations Justify Present Violations: Delahunty & Yoo on International Law

This goes in the keeping-an-eye-on-the-uses-of-history department: Robert Delahunty, Univ. of St. Thomas, and John Yoo, U.C. Berkeley, have a forthcoming article in the Harvard Journal of Law and Public Policy, Executive Power v. International Law. They draw upon history to argue, in part, that past international law violations by U.S. presidents are evidence that international law doesn't constrain U.S. presidential power. Maybe you'll be convinced. Here's the abstract:

Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status of federal law, like the Constitution, statutes, or treaties, it has no binding effect on the President through the Take Care Clause. Allowing international law to limit the President's exercise of his constitutional powers also runs counter to the constitutional structure, primarily by undermining the traditional understanding of the allocation of the foreign affairs power between the President and Congress. Raising international law to the status of international law would transfer lawmaking authority to a vague, indeterminate process that is not subject to popular sovereignty.

Examining important moments in American military and diplomatic history illustrates the precedence of the President's constitutional authority over international law. Examples including the Civil War, the World War II bombings of Japan, the Cuban Missile Crisis, and the Kosovo War show that even if American wartime conduct may have been inconsistent with international law, or at least stretched international law, no one has plausibly argued that these presidential decisions violated the Constitution. Indeed, these moments suggest the serious harm to American national security which might result if we were to read the Constitution to impose international law as a constraint on legitimate exercises of the President's Chief Executive and Commander-in-Chief powers.