Friday, April 10, 2009

McGinnis: Medellin and the Future of International Delegation

John O. McGinnis (Northwestern Univ. - Law) has posted Medellin and the Future of International Delegation (Yale Law Journal, forthcoming). Here's the abstract:
Given the rise of globalization and the need for international governance of common problems, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This essay considers the extent to which U.S. law imposes constraints on such delegations and the extent to which those constraints will influence the nature and structure of the international delegations themselves. It begins by showing that international delegations of domestic authority raise even more profound problems of agency costs and democratic deficit than purely domestic delegations. The Supreme Court's recent decision in Medellin v. Texas reflects these concerns. By rejecting the domestic effect of a decision of the International Court of Justice, in the absence of a clear statement in U.S. law that it should be given such effect, the Supreme Court raised the enactment costs of domestic delegations, assuring greater deliberation by the political branches prior to making such delegations. Because the Court did not find such a clear statement in the treaties at issue in Medellin, it left unaddressed the question of any other constitutional constraints on international exercises of domestic authority. The Essay considers the implications of four models-the administrative law model, the categorical constraint model, the categorical permission model, and the treaty model-for the policing of international delegations domestically and the improvement of such delegations internationally. It suggests that the treaty model-one by which the President and the Senate must authorize such delegations by treaty-may best reflect the original meaning of the Constitution. The Treaty Clause's requirement that such delegations be approved by a super majority ex ante may also help address their ex post agency costs and democratic deficit. That model is also compatible with the clear statement requirements of the administrative law model reflected in Medellin.