Abebe: Great Power Politics and the Structure of Foreign Relations Law

Daniel Abebe (Univ. of Chicago - Law) has posted Great Power Politics and the Structure of Foreign Relations Law (Chicago Journal of International Law, forthcoming). Here's the abstract:

Should courts consider great power politics in determining the allocation of foreign relations law authority? Foreign relations law is a set of rules serving as an internal constraint on the unilateral exercise of foreign relations powers. Given the predominance of the executive branch in foreign affairs, courts routinely consider foreign relations law questions about the breadth of the executive's authority by reference to legal precedent, historical practice and functional concerns for guidance. Courts primarily look to solely internal, domestic factors. But the natural focus on internal constraints obscures the increasing importance of external constraints on the executive authority. This symposium article argues that one cannot determine the overall level of constraints on the executive without understanding the relationship between internal constraints produced by foreign relations law and external constraints generated by great power politics. To understand this relationship, this article frames foreign relations law as a function of great power politics, discusses the impact of external constraints on executive decisionmaking, and offers a skeletal theory on the salience of great power politics on the allocation of foreign relations law authority. The theory suggests that the overall level of constraint on the executive likely varies over time as the strength of external constraints varies, leading to the conclusion that courts should consider both external and internal constraints in determining the true breadth of executive decisionmaking authority.