Wednesday, June 22, 2011

Reinstein on Executive Power and the Law of Nations in the Washington Administration

Robert Reinstein, Temple University James E. Beasley School of Law, has posted Executive Power and the Law of Nations in the Washington Administration, which is forthcoming in the University of Richmond Law Review.  Here is the abstract:
The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases of expansive theories of plenary executive powers over foreign affairs. This paper presents an original historical and jurisprudential account of the Neutrality Crisis and draws three principal conclusions:
First, the source of the Washington administration's constitutional authority was the duty of the Executive, under the Take Care Clause, to obey the law of nations. This source of authority was (1) repeatedly asserted in the administration's public declarations; (2) the basis of its private deliberations; (3) consistent with the jurisprudence of the founding generation; and (4) explanatory of the actions that were taken (and not taken) by the administration. No other theory of executive power satisfies these criteria.
Historians and legal scholars have consistently rejected this thesis, claiming that Washington was not executing any settled doctrine of international law but was making discretionary policy decisions. This paper shows that the critics erred in projecting onto the founding generation their own ideas of legal positivism as the foundation of international law, and in dismissing the extraordinary influence of Continental publicists such as Vattel, who were the administration's principal authorities on the law of nations.
Second, this thesis has important implications regarding executive power and international law. Washington’s actions were based on the principle that the Executive has the duty to comply with the obligations of the law of nations. To the extent that international law remains part of national law, the actions of the Washington administration provide an important precedent for the duty of the Executive to obey the constraints of international law.
Third, this paper sheds light on the limits of originalism as a constitutional methodology. One of the profound changes that have occurred in the United States is that the founders' way of thinking about law can be incompatible with our own. The foreign policy decisions of the Washington administration reflected B indeed, in the view of the administration, were compelled by B a natural law jurisprudence of the law of nations that was a product of its time. This has little relevance to the general scope of modern presidential power to determine and conduct the nation's foreign affairs. Modern theories of expansive executive powers must find bases other than in the decisions of our first President.

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