GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2004

Status

Accepted

Abstract

Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative salience. Delegations of legislative authority, it is argued, are functionally indistinguishable from any other kind of legislation; federalism, others maintain, offers no conceivable advantages over managed decentralization. The answer to the incongruity between the increasing use of international delegations and U.S. constitutional principles, in this latter view, is to conclude that nondelegation and federalism doctrines are underenforced for good reason, and to be done with them.

This paper favors neither view, and advances a new perspective. After describing the range of international delegations that raise colorable constitutional issues, I first defend the proposition that, at least with respect to international commitments, the delegation of legislative authority is meaningfully distinct from normal exercises of legislative or treaty authority. But the reasons why delegation analysis remains conceptually relevant - including the difficulty any one nation has in controlling institutions with multiple principals, and the durability of international commitments - reveal that such delegations actually serve other constitutional values, particularly the value federalism places on the diffusion of authority and the creation of checks on the power of the national government. That is, if we look beyond the adverse effects international institutions may have on the existing agents of U.S. federalism, the states, we can see that delegations serve many of the same ends.

After explaining this thesis at length, and reconciling the pursuit of diffusion with other welfarist and democratic concerns, the paper closes by focusing on kinds of international delegations that remain problematic. The objective is to move beyond the ascendant generalizations about the disadvantages of international delegations, without at the same time denying the continuing salience of constitutional values.

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