A Legal Analysis of Rep. Tulsi Gabbard’s Trip to Syria

Rep. Tulsi Gabbard (D-HI) has drawn attention in recent weeks for leading a delegation to Syria and Lebanon, where she reportedly met with government leaders, refugees, and members of civil society. The stated purposes were to engage in fact-finding and promote an end to the Syrian war, but details about the trip have raised questions about its wisdom and legality. In this post, I’ll elaborate on the relevant legal issues and supplement the news coverage by offering additional context for what’s taken place.

By way of background, Rep. Gabbard’s trip has proven controversial for a number of reasons: She reportedly declined to inform House leadership in advance, met with Bashar al-Assad, toured with officials from a Lebanese political party that actively supports Assad, and received funding from an American organization that counts one of those same officials as its executive director. Moreover, both before and after traveling to Syria, the congresswoman channeled some of Assad’s positions on the war in statements to the public. Two weeks ago, amid mounting scrutiny, she pledged personally to reimburse her sponsor, but critics have continued to denounce the trip and Rep. Gabbard for violating the Logan Act and House ethics rules. As I explain below, the arguments so far have been unpersuasive, but commentators have neglected an important angle of approach. Continue reading

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Finding Customary International Law

I just posted the final, published version of my paper Finding Customary International Law, which came out in the Iowa Law Review last month. It’s available here.

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The South China Sea Arbitration: Implications for the Senkaku Islands

One of the big takeaways from the South China Sea arbitration is that the high-tide features in the Spratly Islands are mere “rocks” under Article 121(3) of the UN Convention on the Law of the Sea because they “cannot sustain human habitation or economic life of their own.” This means that even the largest islands within the group lack an exclusive economic zone and a continental shelf. It also means that the separate question of sovereignty over the islands themselves is suddenly much less consequential than it might have been: whoever has title over the land now enjoys a diminished package of maritime rights that spatially extend no farther than a 12-nautical-mile territorial sea and an additional 12-nautical-mile contiguous zone.

This outcome is not only significant for the South China Sea; it also suggests something about the status of disputed features in the East China Sea: the Senkaku Islands. Simply put, the UNCLOS tribunal’s exposition and application of 121(3) strongly suggest that the Senkaku Islands are rocks. This is a setback for Japan, which has the superior claim to title, but might help to deescalate tensions between China and Japan by substantially reducing their legal incentives to contest each other’s claim.

I’ll start with 121(3)’s text: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Due to a lack of precedent and divergent commentary, there’s been quite a bit of uncertainty about the meaning of this language. The tribunal, however, resolved much of it in favor of treating close cases as rocks.

Particularly noteworthy for present purposes is the tribunal’s application of 121(3) to Itu Aba / Taiping Island—the largest and least rock-like of Spratlys. According to evidence cited in the ruling, Itu Aba has had fresh-water wells of sufficient quality and volume to support small groups of people; its vegetation has included, at one point or another, coconut, banana, plantain, and papaya trees, along with fields of palm, pineapple, cabbage, radish, and sugarcane; and workers there have at times operated small animal farms. The soil, moreover, contains sizable quantities of phosphate, and the surrounding waters have supported an abundance of sea life. Such conditions made it possible for fishermen to inhabit the island on a temporary basis for “comparatively long periods of time.” In addition, Japanese companies extracted economic benefits from Itu Aba for over twenty years starting in 1917. One company employed 600 workers to mine nearly 30,000 tons of guano, and built dorms, warehouses, a clinic, an analysis room, a weather station, a jetty, and mining tracks on the island to support its activities. Another hired roughly 40 workers to use the island as a base of operations for fishing in the surrounding waters. A publication from 1941 reported that still two other companies had a combined total of 130 personnel residing there “continuously.”

This evidence clearly suggests a capacity to sustain certain forms of human presence and economic activity. The tribunal, however, designated Itu Aba as a rock by narrowly interpreting 121(3)’s key terms.

First was the term “human habitation.” According to the tribunal, this entails the “non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner,” and requires “conditions sufficiently conducive to human life and livelihood for people to inhabit, rather than merely survive.” In other words, habitation refers to presence for “an extended period of time” by a “settled group or community for whom the feature is a home.” Applying this standard, the tribunal concluded that Itu Aba is not “obviously inhabitable” in light of its physical characteristics. There has been potable water and vegetation “capable of providing shelter and the possibility of at least limited agriculture to supplement the food resources of the surrounding waters.” Fishermen, moreover, have survived there “principally on the basis of the resources at hand.” Yet the island’s “capacity even to enable human survival” is “distinctly limited.” Historical use confirmed as much. The island served as “a temporary refuge and base of operations for fishermen and a transient residence for laborers engaged in mining and fishing,” but nothing resembling a stable community ever formed. The temporary presence of migrant workers for a “few short years” failed to suffice because the purpose of their presence was not to “make a new life for themselves on the island[].”

Second was the phrase “economic life of their own.” The tribunal explained that “economic life” means “more than the mere presence of resources,” and that “some level of local human activity to exploit, develop, and distribute those resources would be required.” “Of their own” in turn means that the feature(s) “must have the ability to support an independent economic life, without relying predominantly on the infusion of outside resources or serving purely as an object for extraction activities, without the involvement of a local population.” Itu Aba failed to meet these standards, too. Although the island supported certain kinds of economic activity, all of it was “essentially extractive in nature (i.e., mining for guano, collecting shells, and fishing)” in the sense that it “aimed to a greater or lesser degree at utilizing the resources [present] for the benefit of” populations elsewhere. This was inadequate.

A number of commentators, myself included, have characterized the Senkaku Islands as fully entitled islands rather than rocks. But that position now appears untenable. Indeed, there are several ways in which the Senkakus, even as a group, present a similar or even easier case for rock status than Itu Aba. Consider the following timeline, which I pieced together from archival materials and an academic article that the Japanese Ministry of Foreign Affairs recently highlighted as presenting an accurate account of the islands’ history: Prior to the late 1800s, there was essentially no human presence of any kind. In 1890, a Japanese company placed roughly 80 fishermen on the largest of the islands (Uotsuri) to build huts and collect shells and other marine resources, but these individuals were present at most “for seasonal periods.” Other groups of fishermen also stayed on the islands intermittently, but only “for two to three months at a time, or at the longest half a year” because the “environment wasn’t suitable for longer stays.” In 1893, a group of workers stranded on Uotsuri managed to survive for an unspecified period. The food they consumed, however, was non-native, and they were “almost at the end of their endurance” when they were finally “rescued.” In 1896, the Japanese government leased some of the Senkakus to an Okinawan entrepreneur who used them and the surrounding waters as a source of albatross feathers, terns, bonito, and guano, all of which he sold in Japan or exported for profit. At the peak of these operations around 1912, there were 248 people present, but these individuals were “hired—not so much as pioneers to develop new territory than as migrant labor employed to do a certain job,” and they “received payment in return for agreeing to live and work on the islands” only “for a certain period of time, normally a year or six months.” And although the entrepreneur constructed dorms, warehouses, work huts, and a boat-building dock to support his operations, there were “no personally owned houses” present. Since the expiration of the lease, no one has lived on the islands even temporarily, and they are uninhabited today.

Much of this sounds similar to Itu Aba. Neither appears to have a naturally occurring supply of food, water, or shelter in quantities sufficient to enable a group of persons to live for an indeterminate period of time. Neither has ever had a stable community of residents who considered the island their home. Neither has sustained economic activities that are anything other than extractive. Uotsuri is slightly larger than Itu Aba, but the tribunal emphasized that size per se is irrelevant. There appears to be an abundance of resources around the Senkaku Islands, but the same could be said of Itu Aba. Given that Itu Aba is a rock, it is highly likely that the Senkakus are as well.

This strikes me as a major development in its own right. China and Japan have contested sovereignty over the Senkakus in part because of the marine resources surrounding and the hydrocarbons reportedly lying beneath the islands. If sovereignty is unlikely to carry with it an exclusive economic zone or rights to the continental shelf, then the parties simply have less incentive to contest title in the first place. This should be a welcome development for the international community, especially third parties that might be drawn into the dispute if it ever degenerates into open hostilities. But it also means that the tribunal’s ruling is a double-edged sword for Japan, which, in the view of most American legal commentators, has the stronger claim to sovereignty. Tokyo has already called upon China to comply with the UNCLOS ruling and would benefit in various ways if Beijing were to oblige, but this very same ruling has substantially bolstered the argument for downgrading the extent of Japan’s legal entitlements in the East China Sea. How Japan responds will be an issue worth following.

[Cross-posted at Lawfare.]

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How Cosmopolitan Are International Law Professors?

Milan Markovic (Texas A&M) and I just posted a new piece about U.S. professors of international law. Here’s the abstract:

This Article offers an empirical answer to a question of interest among scholars of comparative international law: why do American views about international law appear at times to differ from those of other countries? We contend that part of the answer lies in legal education. Conducting a survey of the educational and professional backgrounds of nearly 150 legal academics, we reveal evidence that professors of international law in the United States often lack significant foreign legal experience, particularly outside of the West. Sociological research suggests that this tendency leads professors to teach international law from predominantly national and Western perspectives, and thus socialize generations of future government elites, activists, legal experts, and private practitioners to internalize views about “international law” that are not always truly international. After discussing and analyzing the new evidence, the Article identifies arguments for and against the current pattern.

The piece is forthcoming in the Michigan Journal of International Law and available here.

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New Article on International Legal Education

I recently posted a draft of a new article on international legal education. The article examines the curriculum of virtually every law school in the world in order to identify global trends in the teaching of international law, and then theorizes on the significance of the findings. It’s forthcoming in the Indiana Law Journal and available here.

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International Law from a Cuban Perspective

Recently I returned from a trip to Cuba, where I had the opportunity to interview Celeste Pino Canales, a highly regarded professor of public international law at the University of Havana. I pursued the interview for a couple of reasons. First, I wanted to get a sense for what it’s like to be an international law professor in Cuba. Second, given renewed interest in the field of comparative international law, I wanted to investigate whether there might be distinctive Cuban perspectives on topics such as treaty law and custom. The setting was the University of Havana Law School, where the classrooms have framed photographs of a rugged, youthful Fidel and inscriptions like “This is where I became a revolutionary.” Professor Pino Canales and I spoke with the help of a translator, so it’s possible that I missed certain nuances, but she made a number of points that seem worth sharing.


We began by talking about her work, which is both identical to and different from that of legal academics in the United States. I’ll focus on some of the principal differences: Imagine being a professor whose field is international law, but who cannot travel abroad for conferences, use the internet for research, or follow major foreign news sources. How would you track the latest developments in your field, conduct research, and connect with foreign colleagues?

These are the conditions and questions that appear to confront professors of international law in Cuba. Pino Canales and others like her are unable to travel abroad for conferences and other professional opportunities. Although it was unclear whether this is due to limited finances or government restrictions, the consequence is that Cuban academics tend to have exceedingly limited contact with their overseas counterparts. Pino Canales has managed to develop relationships with Bolivian, Venezuelan, Costa Rican, and some African scholars, but only because those individuals traveled to Havana for conferences and presentations. To me, the composition of that group was striking not only because it suggested the existence of a network of scholars with whom most in the West have no interaction, but also because it revealed a general absence of intellectual exchange with Americans in particular. Worlds were colliding as we spoke, in fabulous and disorienting ways.


As for research, the resources simply aren’t there. One problem is that most publications on international law are written in languages other than Spanish. Cubans study English in grade school, but my impression was that most people, including scholars, lack the aptitude to read legal scholarship in English, and that most universities do not have the capacity to systematically translate publications into Spanish. Equally significant, international law professors cannot access most non-Cuban scholarship. All faculty and students at the University of Havana reportedly share a single internet account with bandwidth equivalent to that of one residential account in the United States, so it takes forever even to visit the website of the United Nations, let alone download documents, and the American embargo has further complicated research by blocking downloads of online U.S. publications. To obtain books and articles from abroad, Pino Canales must typically wait for foreign academics to visit, network with them once they arrive, and then request that they physically mail hard copies to her once they return home.

These conditions seem noteworthy for a couple of reasons. First, they make it difficult for Cuban scholars to participate in the “invisible college of international lawyers.” Working in substantial isolation and with limited means, professors find it a challenge to follow the latest developments in the field, exchange ideas, and contribute. Much of this is probably old news to those who are more knowledgeable about the country, but I think it’s a useful reference point for American scholars who are accustomed to the luxuries of substantial travel budgets, unlimited internet access, massive electronic databases of legal authorities, a large community of colleagues, and an abundance of publications and conferences in English. These are the practical manifestations of the happenstance of presence in the global core. The Cuban experience suggests that to be an international law scholar without these resources is to be relegated to the status of an intermittent observer of a semi-global conversation, rather than an active participant, and that poverty and political differences stand as major obstacles to the creation of a fully inclusive community of international lawyers.

Second, the professional isolation of those who hold influence over Cuban understandings of international law might in turn foster the development of distinctive national perspectives about the field. As an illustration, the primary Cuban textbook on public international law has Cuban authors, most of whom received their legal training from domestic schools, and cites mostly to legal and academic sources from the 1960s and 1970s, only a small portion of which are American or European. Do Cuban law graduates develop unique or, to the American mind, antiquated views about international law in learning from this sort of text? Quite plausibly, yes. And given that international law requires a certain cross-national harmonization of understandings and attitudes, those who support the idea of effective global norms might fairly view the conditions in Cuba with concern.

All that said, I think the recent steps toward rapprochement could help to mitigate these problems. For example, new federal regulations authorize on a case-by-case basis the export of “items for . . . education” to “meet the needs of the Cuban people.” This reform appears to make it easier for American scholars to share international law casebooks and articles with Cuban colleagues. Likewise, although the Treasury Department has for years allowed travel for certain “educational activities,” expanding transportation and communication links between the two countries will likely make it easier for American scholars to visit for research on international law and to develop and maintain contacts with Cuban colleagues. As one illustration of the potential payoffs of this sort of endeavor, I was able to obtain from Professor Pino Canales a copy of the main Cuban textbook on public international law, which I hope to translate and share with American scholars in the near future. These sorts of activities will make it easier to appreciate differences in perspective and help to generate mutual understanding.

What, then, are Cuban perspectives on international law? I wasn’t able to explore this question as much as I’d hoped, and I don’t know whether Pino Canales’s views are representative, but a few points were clear. First, she seemed skeptical about international law’s claim to legal status. She stated, for example, that the field “is more about politics than law,” and she suggested quite firmly that just as there is “no such thing as a half-pregnant woman,” there is no such thing as soft law—law is either formally binding or not law at all. I had always assumed that Cuba would promote expansive concepts of international law as a strategy to try to constrain its powerful neighbor, so these positions struck me as surprisingly realist and Austinian.

Second, Pino Canales was critical of developed countries for trying to use international law to impose on the rest of the world a “democratic, liberal, and bourgeois” model of society that lacks universal resonance. She expressed skepticism about market liberalization and characterized it as a mechanism by which the powerful reinforce existing global hierarchies.

Finally, although not necessarily issues of international law, Pino Canales explained that Cuba maintains four non-negotiable demands notwithstanding the recent developments in its relationship with the United States. First, Washington must respect Cuba’s sovereignty and the self-determination of its people by removing the embargo, which she described as “fundamentally illegal.” In her view, the recent reforms from the Obama Administration simply aren’t enough. Second, the United States must rescind the Cuban Adjustment Act, which incentivizes a destabilizing exodus of young people to the United States by making it easy for them to become permanent residents upon arrival. Third, the U.S. government must terminate Radio y Television Marti, a federally financed broadcaster that transmits reformist, Western programs in Spanish to Cuba. And fourth, Pino Canales stated that the United States must relinquish control over Guantanamo. She argued that the lease can’t be held in perpetuity, and that the international law doctrine of rebus sic stantibus renders unenforceable the provisions of the 1903 treaty that granted the United States “complete jurisdiction and control” over the land where the military base is located. Assuming that these positions represent the views of her government, it will likely take a lot more than removal of the embargo to develop an amicable relationship. The optimistic view is that American scholars might have a small role to play in that process.

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New Data on Incursions into Waters Surrounding the Senkaku Islands

The Japanese Coast Guard just released some new data on the “numbers of Chinese government and other vessels that entered Japan’s contiguous zone or intruded into [the] territorial sea surrounding the Senkaku Islands.” Here they are:1

I see two noteworthy trends: first, an ongoing pattern of significant fluctuation in the monthly volume of incursions into the contiguous zone, and second, stabilization of entries into the territorial sea at an average of eight per month, which is down quite a bit from the highs of 2012. If you’re Japan, these patterns remain troubling, but the numbers concerning the territorial sea suggest that China may have settled on a strategy of stalemate, at least for the time being.

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New Article on Customary International Law

I just posted a draft of a new article that studies citations in published judicial opinions to evaluate how federal courts go about ascertaining customary international law. For those interested, it’s forthcoming in the Iowa Law Review and available here.

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Legislative Diplomacy After Zivotofsky

Zivotofsky was a case about the recognition power, but it was also the first in quite a while to offer any insight into the Justices’ views on the nature of the President’s power to communicate with foreign sovereigns. Given precedents like Curtiss-Wright, which famously quoted John Marshall for the proposition that the President is the “‘sole organ of the nation in its external relations,’” commentators have long assumed that diplomatic communication is an exclusively executive domain.

The past six months, however, have featured two high-profile examples of official contacts between Congress and foreign governments. In January, House Speaker John Boehner unilaterally invited Israeli Prime Minister Benjamin Netanyahu to address Congress on the subject of the Iranian nuclear program, and in March a group of 47 Republican Senators wrote an open letter lecturing the Iranians on certain features of the U.S. Constitution. These incidents, while deeply controversial, raised questions about the longstanding assumption of executive exclusivity and clarified a need for closer analysis on the precise nature of the Article II diplomacy power. They also suggested a need to explore whether there’s any affirmative support for legislative diplomacy in Article I.

What are Zivotofsky’s implications for this topic?

On my reading, the most important takeaway is that the Court’s interpretation of Article II leaves room for the possibility of a constitutional practice of legislative diplomacy. I say this for two reasons:

First, for an opinion that ruled in favor of executive power at the lowest ebb, Zivotofsky contains a lot of language that is surprisingly favorable to Congress. Most significantly, the majority expressly refused to hold that the President has “exclusive authority to conduct diplomatic relations” and ranged from hesitant to hostile in its treatment of the authorities that could most easily justify exclusivity. The Court flatly “decline[d] to acknowledge” that the President has “broad, undefined powers over foreign affairs” and characterized as dicta Curtiss-Wright’s language on the sole-organ theory. Justice Roberts similarly criticized Curtiss-Wright, concluding that the Court’s “precedents have never accepted such a sweeping understanding of executive power,” and the majority balked at an invitation to interpret the Vesting Clause as an independent source of authority. With Curtiss-Wright out of the picture and trepidation over the Vesting Clause Thesis, the argument that Article II allocates all official international communication exclusively to the President becomes harder to sustain.

Second, in giving weight to considerations of text, structure, original meaning, customary practice, and function, the majority opinion featured a methodological eclecticism that reinforces the validity of extra-textual arguments in favor of legislative diplomacy. As I’ve shown elsewhere, Congress has been communicating independently with foreign governments for a long time, and it’s now standard for members of the House and Senate to travel abroad and meet with foreign officials. This practice, moreover, carries important benefits as an informal means of investigating extraterritorial facts and a way for legislators to promote the interests of their constituents, and the State Department’s routine support suggests the Executive Branch agrees. If historical gloss and functionalism are alive and well with respect to the recognition power, then they would seem to apply to questions about legislative diplomacy, too.

To be sure, I don’t see Zivotofsky as a green light for Congress. Far from it. The Court made clear that the President has exclusive authority to dictate the content of official communications on issues for which unity of message is important, where there is a need for decisive and unequivocal action, and where there are benefits to be gained from engaging in “delicate and . . . secret diplomatic contacts.” The Court also explained that the President has “a unique role in communicating with foreign governments,” including “the power to open diplomatic channels . . . by engaging in direct diplomacy with foreign heads of state and their ministers.” Congress, by contrast, “has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.” Legislative diplomacy must take place within these constraints. In addition, the Court didn’t address whether Article I contains an affirmative source of international communicative authority, and thus left open the possibility that it doesn’t. But with these caveats, the idea that Congress has power to interface directly with foreign governments seems to survive Zivotofsky in the sense that it’s now harder to argue that Article II categorically precludes the practice.

[Cross-posted at Lawfare]

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The Role of Foreign Perceptions in Zivotofsky v. Kerry

One of the noteworthy disagreements in Zivotofsky concerns the significance of foreign perceptions of U.S. law.

The majority suggested the risk of misperception is relevant as a type of functionalist consideration: Pointing to evidence that § 214(d) drew objections from Palestine and protests in the Gaza Strip, and invoking a need for “one voice” in foreign affairs, Justice Kennedy concluded that the statute is unconstitutional not simply because it purports to compel the President to issue statements that contradict his policy on the status of Jerusalem, but also because those statements would mislead foreign audiences to think that U.S. recognition policy has changed. Such equivocation is unacceptable because foreign countries “need to know . . . whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights.”

At least two Justices had a different view. Treating foreign perceptions as essentially irrelevant, Justice Roberts criticized the majority for “subject[ing] a duly enacted statute to an international heckler’s veto.” Justice Scalia insisted the statute’s “symbolic support for Israel’s territorial claim . . . makes no difference as a matter of constitutional law,” even if it has “tremendous significance as a matter of international diplomacy.”

The disagreement raises a number of empirical and theoretical questions that are worth considering:

(1) For the majority, whose potential misperceptions substantiate the need for one voice? Foreign ministries? Foreign governments? Foreign publics? All of the above?

The opinion doesn’t squarely address this point, but mentions that “foreign countries” need clarity on recognition matters and cites evidence of official and public reactions to the statute in Palestine. I take that to suggest a concern for both governmental and popular understandings.

Yet it’s not obvious the Court should care about anything other than foreign officialmisperceptions. Most foreigners are not lawyers, let alone comparative lawyers with knowledge about the U.S. legal system. Most foreigners don’t follow or possess any particular interest in U.S. legal developments. Most, moreover, are dependent on foreign media outlets of variable quality, and over which the U.S. government has no influence. The result is that even basic aspects of U.S. law are often unknown or misunderstood abroad. (Consider, for example, this 2008 poll showing that more than 50% of the United Kingdom presumed polygamy to be legal here.) I’m having a hard time seeing why the courts should give any weight to popular perceptions of such questionable origins, particularly in addressing questions of constitutional law. If the one voice doctrine is justified, it has to be for reasons other than the idea that a congressional voice creates a risk of misunderstanding among public audiences that are often fundamentally uninformed.

(2) Did § 214(d) cause misunderstanding among foreign officials?

I probably haven’t seen all of the evidence, and I don’t purport to be an expert on the Middle East, but the two sources cited by the majority focus on the public response in Palestine and other parts of the region. The first source, a diplomatic cable, reported that the public’s “strong, emotional reactions reflect to a large degree the simplistic and sensationalist way that regional and local Arab media have portrayed the law.” The second source, a newspaper article, reported that Palestinians threw rocks to protest “U.S. legislation that urged recognition of Jerusalem as Israel’s capital.”

What’s missing is clear evidence that Palestinian officials misinterpreted the statute. The cable quoted public denunciations from various government sources, including one objecting that the statute “undermines the role of the U.S. as a sponsor of the peace process.” But that doesn’t necessarily show an official misconception. It’s one thing to object, but another to object on the specific view that the law effected a change in recognition policy. After all, many kinds of pro-Israel legislation would presumably generate official statements of disapproval; it strikes me as noteworthy that the sources contain no quotes directly showing an official misinterpretation. As if to underscore the point, a second cable not cited by the majority also reported widespread misunderstanding in the region, but only described it as a problem among the “media and public.” And both cables show that U.S. diplomats, presumably in contact with Palestinian officials, made efforts to clarify the statute’s effect.

While again acknowledging that I don’t have all the facts, it’s also a little hard to believe that Palestinian officials would misinterpret the significance of the passports going forward. With the majority conceding the statute doesn’t formally change U.S. policy, all three branches of the federal government now agree on that point. To nevertheless anticipate that foreign officials will read the passports as evidence of a change, we’d have to assume that the uniform message of the President, Congress, and the Supreme Court is somehow lost in translation. But U.S. diplomats are there to ensure it isn’t. And why would a foreign government be sensitive to the issuance of the passports but not the official interpretation of their significance?

(3) Is foreign official misperception of U.S. law a common problem?

I don’t know the answer, but I’ll venture three ideas: First, there’s probably a spectrum of governments ranging from the savvy to the uninformed. Due to exposure and practical necessity, those that work with the United States frequently and on a wide range of issues are likely to possess a more sophisticated understanding. Likewise for governments that share a common law tradition or similar political system, both of which probably make it easier to appreciate the background assumptions and underlying values of U.S. law. Second, the sophistication of foreign understandings has probably increased since the mid-twentieth century, as the advent of American hegemony magnified the importance of U.S. legal knowledge, as globalization improved foreign access to U.S. sources, and as inter-governmental contacts expanded in volume and variety to address proliferating global challenges. Finally, foreign government officials—particularly those with diplomatic responsibilities—are likely to be more sophisticated in their understanding than foreign publics.

If there’s something to these ideas, then we might reasonably think that the risk of misperception varies depending on the identity of the implicated governments, with those that are more sophisticated being less prone to error and better able to appreciate the nuances in U.S. law. We might also think that concerns about misperception should generally receive less weight now than they might have in the past, and that they should be less acute with respect to foreign official understandings of U.S. law. From this perspective, the problem with the majority reasoning is that it creates a categorical rule in favor of the executive on the basis of a risk that may be only occasional.

(4) Is the mere risk of misperception enough, or must there be evidence that misperception has occurred?

The majority seems to view risk alone as sufficient by focusing on the contradiction that would arise if the President were forced to issue the passports—the passports “would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations.”

(5) How is a court to determine that a risk of misperception exists?

Although the majority cited a newspaper article in discussing the foreign response to § 214(d), the primary basis for the anticipated misunderstanding appears to be deference to the judgment of the Secretary of State, who emphasized the danger of diplomatic repercussions in the briefing and provided the cables that described hostile reactions from Palestinians. It’s not uncommon for courts to defer to executive representations about the foreign policy consequences of U.S. law, but the decision to do so here seems noteworthy for the simple reason that this is a case about the lowest ebb of executive power, where the President’s claims must be “scrutinized with caution.” Although I’m not sure there’s an alternative, there seems to be a tension between fact deference and legal scrutiny; a President with a relatively free hand to shape the Court’s view of what will happen is one with a capacity to heavily influence the disposition of the legal argument.

[Cross-posted at Lawfare]

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