10 Chi. J. Int'l L. 125 (2009-2010)
Great Power Politics and the Structure of Foreign Relations Law

handle is hein.journals/cjil10 and id is 127 raw text is: Great Power Politics and the Structure of Foreign
Relations Law
Daniel Abebe*
I. INTRODUCTION
Foreign relations law serves as an internal constraint on the unilateral
exercise of foreign relations powers through the distribution of authority within
the national government. Given the predominance of the executive branch in
foreign affairs, courts routinely resolve questions regarding the breadth of the
executive's authority by reference to the Constitution, legal precedent, historical
practice, and functional considerations. Though courts generally focus on these
domestic factors, they have been historically quite sensitive to the international
political implications of their decisions. But we don't have a clear understanding
of how or when courts consider international politics in resolving foreign
relations law questions. We lack a framework to begin thinking about the
relationship between international politics and the allocation of decisionmaking
authority.
This short Article frames foreign relations law as a function of international
politics to explore the relationship between the strength of external international
political constraints on a state and the levels of judicial deference to the
executive in that state. Variation in the structure of international politics-
bipolar, multipolar or unipolar-likely produces variation in the strength of
external constraints on a state. This approach yields a simple descriptive claim
and a related predictive claim. The stronger the external constraints on a state,
such as the constraints present in multi-polar or bipolar worlds, the greater the
likelihood of judicial deference to the executive on institutional competency
grounds. Conversely, the weaker the external constraints on a state, such as the
constraints present in a unipolar world, the lesser the likelihood of judicial
deference to the executive. If this claim is accurate, it leads to a predictive claim
that the rate of judicial deference to the executive will likely decrease as long as
Assistant Professor, University of Chicago Law School. Thanks to Tom Ginsburg, Jonathan
Masur, Nuno Monteiro, and Eric Posner for helpful comments.

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