Via the Freedom of Information Act, I recently obtained a copy of a previously unreleased MOU in which the US Department of Commerce and the PRC Ministry of Commerce agreed to promote subnational engagement on trade and investment. The MOU was signed in 2015 and may or may not still be in force. A copy is available here.
I just posted a draft of a new paper: “The International Commitments of the Fifty States.” The paper’s forthcoming in the UCLA Law Review; here’s the abstract:
U.S. law allocates power to conduct foreign relations primarily to the federal government, but it is well known that U.S. states routinely maintain foreign relations of their own. Much of this activity appears to seek out and result in legal commitments, whether in the form of “sister state” agreements or binding pledges to cooperate on discrete issues such as investment, environmental protection, and transportation. These commitments are loosely comparable to international treaties and may either advance or disserve state and national interests.
Yet very little is known about the commitments that are in force. For the most part, neither federal nor state law requires states to publish them or even report them to Congress or the executive branch. Few state agencies voluntarily post information online. Legal database companies have not included the commitments in their catalogues. And academic research has not served as an adequate, alternative source of transparency. The resulting uncertainty about modern practice inhibits the accountability of state governments to their voters, complicates any effort on the part of state officials to learn best practices, and impedes enforcement of the Treaty Prohibition Clause and the Compact Clause of the U.S. Constitution, both of which circumscribe state power in this area.
This Article resolves the present uncertainty by providing unprecedented transparency on U.S. state commitments with the national, provincial, and local governments of foreign sovereigns. Through freedom-of-information requests to every major executive department and agency in each of the fifty states, I obtained a trove of hundreds of previously unpublished commitments, including many that appear to advance state and national interests in underappreciated ways, along with some that operate in significant tension, if not outright conflict, with federal law or foreign policy. The Article analyzes this collection to reveal new trends, promote accountability, identify lessons for negotiators, and facilitate norm consolidation in domestic law. The Article concludes by proposing measures to strengthen the legality and transparency of future commitments.
I recently posted a new paper on foreign governmental knowledge of U.S. foreign relations law. The paper explains why it’s advantageous for the U.S. government to know whether foreign governments are knowledgeable about this area of U.S. law, and it makes a small step toward the development of such meta-knowledge by offering a case study on Japanese understandings of U.S. foreign relations law. I worked on this piece for four years and am really proud of it. It’s forthcoming in the Yale Journal of International Law. Here’s the abstract:
Arguments in the field of U.S. foreign relations law typically proceed from the inside out: legal actors focus on internal (domestic) sources of authority to reach conclusions with significant external (international) implications. The text and structure of the Constitution, case law, legislative intent, assessments of institutional competency, and historical practice thus dominate debates about treaty-making, war powers, diplomatic authorities, and related matters. This tendency reflects generic assumptions about the proper modalities of legal analysis and helps to ensure that the law reflects national values.
Yet inside-out arguments overlook a critical fact: the practical merits of U.S. foreign relations law often depend on whether and how this law is understood abroad. In other words, the nature and extent of foreign governmental knowledge of U.S. foreign relations law significantly affect the law’s ability to advance U.S. national interests, but there is neither theoretical nor empirical scholarship on the stakes or condition of such knowledge. Nor are there official U.S. policies to ascertain or account for this form of foreign knowledge. In these circumstances, American legal actors cannot fully apprehend whether the law is well designed and applied to achieve its purposes.
This Article elaborates on these issues to develop an “outside in” approach to U.S. foreign relations law. The Article begins by explaining the value of meta-knowledge—domestic knowledge of foreign knowledge of U.S. foreign relations law. The Article then uses original empirical research to generate meta-knowledge. That research includes an immersive case study on Japan, where I collected academic publications, searched newspaper archives, obtained government records under Japan’s freedom-of-information act, and interviewed dozens of scholars and government officials to triangulate Japanese understandings of U.S. foreign relations law. The Article concludes by laying out an agenda to cultivate additional meta-knowledge, reevaluate the law’s practical merits in light of epistemic conditions, and optimize foreign sophistication through legal and policy reforms.
In the Foreign Service Act of 1980, Congress mandated the creation of official records by which to assess the qualifications of ambassadorial nominees. Section 304 provides that, upon the nomination of an individual to serve in the office of ambassador, the president shall provide to the Senate Foreign Relations Committee a “report on the demonstrated competence of that nominee to perform the duties of the position in which he or she is to serve.” Commonly known as “certificates of demonstrated competency,” the purpose of these records is to deter unmeritorious appointments and help the Senate evaluate nominees by reference to whether they possess a useful knowledge of the principal language or dialect of the receiving country and “knowledge and understanding of the history, the culture, the economic and political institutions, and the interests of that country and its people.”
In April of 2014, the Obama Administration announced a policy to disclose the certificates to the public for all future nominees. This policy, which is now codified in a federal statute, has since fostered transparency with respect to dozens of recent appointments. But it also left unavailable the certificates for all nominees from 1980 to the date of the Obama Administration’s announcement, so I filed a request under the Freedom of Information Act (FOIA) in April of 2014 to obtain the roughly thirty years of certificates that predate and thus were not covered by the new disclosure regime. I finally acquired these records after a few years of delay and litigation, and now want to make them available to others in case they’re of use for research:
Finally, a file containing coding data for all nominees from 1980 to 2019 is available here.
I just posted a new draft on the topic of U.S. ambassadorial appointments. The paper uses documents I obtained from the State Department through requests and litigation under the Freedom of Information Act (FOIA) to develop an account of the past several decades of official practice, identifies a couple developments of concern, and explores potential legal reforms. The paper is forthcoming in the Duke Law Journal; here’s the abstract:
In making appointments to the office of ambassador, U.S. presidents often select political supporters from outside the ranks of the State Department’s professional diplomatic corps. This practice is aberrational among advanced democracies and a source of recurrent controversy in the United States, and yet its merits and significance are substantially opaque: How do political appointees compare with career diplomats in terms of credentials? Are they less effective in office? Do they serve in some countries more than others? Have any patterns evolved over time? Commentators might assume answers to these questions, but actual evidence has been in short supply. In this context, it is difficult for the public to evaluate official practice and hold accountable those who wield power under the Appointments Clause.
This Article helps to correct for the current state of affairs. Using a novel dataset based on a trove of previously unavailable documents that I obtained from the State Department through four years of requests and litigation under the Freedom of Information Act (FOIA), the Article systematically reveals the professional qualifications and campaign contributions of over 1900 ambassadorial nominees spanning the administrations of Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama, along with the first two years of Donald Trump. In doing so, the Article substantially enhances the transparency of the appointments process and exposes developments of concern: not only are political appointees on average much less qualified than their career counterparts under a variety of congressionally approved measures, but also the gap has grown along with the size of their campaign contributions to nominating presidents, resulting in a significant number of questionable appointments to ambassadorships involving major U.S. partners. In short, it appears that campaign contributions may be generating an increasingly deleterious effect on the quality of U.S. diplomatic representation overseas. The Article concludes by exploring potential legal reforms, including Senate rule amendments and statutory measures to regulate qualifications and enhance transparency.
I just posted a revised version of a new article on the role of the president and the Senate in the appointment of special envoys and other types of irregular diplomatic agents. The piece will be coming out in the Duke Law Journal; here’s the abstract:
Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats — individuals chosen exclusively by the president to complete limited and temporary assignments — play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.
This Article critically examines the appointments process for such irregular agents. An orthodox view holds it permissible for the president to dispatch any ad hoc diplomat without Senate confirmation, but this view does not accord with the original meaning of Article II. Scrutinizing text and an extensive collection of original historical sources, I show that, under a formalist reading of the Constitution, the appointment of most ad hoc diplomats requires the advice and consent of the Senate because these agents are typically “public Ministers” and “Officers of the United States” under the Appointments Clause.
The analysis makes several contributions. First, it provides a thorough account of the original meaning of “public Ministers” — a term that appears several times in the Constitution but lacks precise contours in contemporary scholarship and practice. Second, for formalists, the analysis reorients longstanding debates about the process of treaty-making and empowers the Senate to exert greater influence over a wide variety of presidential initiatives, including communications with North Korea, the renegotiation of trade agreements, the campaign to defeat ISIS, and the stabilization of Ukraine, all of which depend on the work of ad hoc diplomats. At a time of trepidation over the nature of U.S. foreign policy, such influence might operate as a stabilizing force. Third, the analysis illuminates rhetorical and doctrinal maneuvers that have facilitated the rise of the modern presidency, including historical revisionism and the marginalization of international law as an input in constitutional interpretation. These maneuvers complicate the political valence of originalism and cast the Justice Department’s Office of Legal Counsel (OLC) — a key proponent of the orthodox view — as a motivated expositor of the separation of powers.
The Marquette Law Review hosted a fantastic symposium on the “ethics of scholarship” back in September and will be publishing an issue dedicated to the topic in the coming months. My short contribution addresses the ethics of a practice that appears to occur at times in law review submissions–namely, the practice of strategically over-claiming the importance of a paper to law review editors in order to improve the prospects of a favorable placement, and then walking back the over-claim prior to releasing the paper to the public. Here’s the abstract:
Sometimes the authors of law review articles engage in a bait-and-switch: they insert exaggerated claims of novelty or significance into their submission to student editors and then, after securing a satisfactory offer of publication, moderate those claims in drafts made available to colleagues and the public. By doing so, the authors manage to improve their chances at a desirable placement and avoid unscholarly claims before peers.
This symposium essay suggests that baiting and switching is unethical, and then discusses potential ways to address it.
With the annual submission season upon us, I hope the essay helps to discourage a problematic practice.
I just posted a draft of a chapter that I’m contributing to International Law as Behavior (Harlan G. Cohen & Timothy Meyer eds., forthcoming Cambridge University Press), an edited volume that will offer interdisciplinary analyses on a variety of topics in international law. Here’s the abstract for the chapter, which is available on SSRN:
A substantial body of research in social psychology suggests that egocentric biases inhibit our ability to discern norms. This chapter identifies and explains two of those biases – the False Consensus Effect and the False Uniqueness Effect – and then explores their relevance and implications for efforts to identify customary international law (CIL). Among other things, the analysis offers insights on the persistent objector rule, the origins and evolution of CIL, and the merits of rational choice models.
Below is a short series of posts on the issue of whether it’s consistent with the Appointments Clause for the President to appoint treaty negotiators, such as those who would renegotiate NAFTA, without first obtaining case-specific advice and consent from the Senate. In short, I think that the original meaning of the Appointments Clause probably disfavors such a practice, but one expert on these sorts of issues partially disagrees.
The opening argument.
A response from Prof. Michael Ramsey.
On Monday, Paul Singer at USA Today reported new data on the burgeoning practice of congressional foreign travel. According to Singer, federal legislators spent more government funds venturing abroad in 2016 than any other year in the past decade. Roughly 40% of the trips cost over $10,000 each. The Senate Armed Services Committee spent more than any other, and the House Intelligence Committee experienced a big jump in expenses under the leadership of Rep. Devin Nunes (R-CA), who issued a directive for Committee members to “spend more time in the field.” These are important developments that suggest both the utility of what I’ve called “legislative diplomacy” and the risk of abuse as members of Congress engage in the practice with greater regularity. We also know, however, that the U.S. Government is not the only source of funding—members of Congress also rely on private sponsors. To name just one example, Rep. Tulsi Gabbard (D-HI) recently accepted sponsorship from a nonprofit organization in making a controversial trip to Syria, where she met with Bashar al-Assad.
Which raises the question: How much do we know about this separate domain of privately funded congressional foreign travel? More specifically, how common are non-governmental sponsorships? Has reliance on private sources become more or less common over time? Which members of Congress have participated? Where did they go? And who paid for it? Continue reading →