49 Stan. J. Int'l L. 1 (2013)
The Global Determinants of U.S. Foreign Affairs Law

handle is hein.journals/stanit49 and id is 13 raw text is: THE GLOBAL DETERMINANTS OF U.S.
FOREIGN AFFAIRS LAW
DANIEL ABEBE*
A recurring debate in foreign affairs law focuses on the appropriate level
of congressional and judicial deference to the President. In answering that
question, most scholars focus on the Constitution, Supreme Court precedent, and
historical practice for guidance, or evaluate the expertise and strategic incentives
of Congress, the President, and the courts. For these scholars, the inquiry
exclusively centers on domestic, internal constraints on the President. But this
analysis is incomplete. Determination of the appropriate level of deference has
consequences for how the President can pursue U.S. interests abroad. If the United
States wants to be successful in achieving its foreign policy goals, it requires some
consideration of the external world in which the President acts. This Article
challenges the conventional wisdom by arguing that the appropriate level of
constraint on the President requires an evaluation of both internal constraints from
domestic sources and external constraints from international politics. It provides a
framework to integrate both sets of constraints, develops a theory of external
constraints, and describes the normative implications of this approach for foreign
affairs law. The Article argues that the failure to account for both internal and
external constraints and to recognize their relationship might yield a deference
regime that either does not provide the President with sufficient freedom to pursue
U.S. interests (over-constrained), or leaves the President free to act without
sufficient congressional and judicial oversight (under-constrained). It further
explains the conditions under which higher and lower levels of constraints are
preferable and moves us closer to determining the appropriate level of deference to
the President in foreign affairs.
* Assistant Professor of Law, University of Chicago Law School. Thanks to Anu Bradford, Omri Ben-
Shahar, Emily Buss, Adam Cox, Richard Epstein, Lee Fennell, Tom Ginsburg, Todd Henderson,
William Hubbard, Aziz Huq, Saul Levmore, Jonathan Masur, Richard McAdams, Randy Picker, Eric
Posner, Gerry Rosenberg, Duncan Snidal, Lior Strahilevitz, Sherod Thaxton and the participants at the
University of Chicago Law School Faculty Workshop for comments and suggestions. I would also like
to thank Daniel Cohart, Melissa Gworek and Megan O'Neill for excellent research assistance. All
mistakes are mine.
49 STAN. J. INT'L L. 1 (2013)

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