83 U. Chi. L. Rev. 65 (2016)
Checks and Balances from Abroad

handle is hein.journals/uclr83 and id is 67 raw text is: 









Checks and Balances from Abroad


                             Ashley   Deekst


     Judicial and scholarly discussions about checks and balances almost always
focus on actions and reactions by domestic actors. At least in the intelligence area,
however, foreign actors can have direct and indirect influences on US checks and
balances. New national-security challenges require increased cooperation with for-
eign intelligence partners. Leaks and voluntary transparency mean that far more
information is publicly available about intelligence missions. And robust legal
rules now bind the United States and other Western intelligence services.
     These changes create opportunities for foreign leaders, citizens, corporations,
and peer intelligence services to affect the quantum of power within the executive or
the allocation of power among the three branches of the US government. First,
some of these foreign influences can trigger the traditional operation of checks and
balances in the US system. Second, these foreign actions simulate some of the ef-
fects produced by US checks and balances, even if they do not stimulate the US
system to act endogenously. Whether one views these foreign constraints as positive
or detrimental, understanding them is critical to an informed conversation about
the extent to which the executive is truly unfettered in the national-security arena.


                             INTRODUCTION

     It is a truism  that  the executive   has  accrued  the  lion's share
of power   and  control  in the US   national-security   arena.  One   key
reason  is Congress's   inability  to conduct  appropriate levels of in-
telligence  oversight.'   The  executive   possesses   significant   infor-
mational   and  operational   advantages, members of Congress face
limited   incentives  to  conduct   oversight   that  does   not advance
constituent   interests,  and   congressional staffing and technical
expertise   are  insufficient  to the  task.2  As  a  result, the  checks


   t   Associate Professor of Law, University of Virginia School of Law. Thanks to Kate
Andrias, Jennifer Daskal, Deborah Hellman, Leslie Kendrick, Caleb Nelson, Saikrishna
Prakash, Daphna Renan, Frederick Schauer, and Richard Schragger for helpful input.
Remaining errors are mine.
   1   See Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the
War on Terror, 97 Cal L Rev 301, 331 (2009) ([Clhecks and balances can make a positive
contribution to national security by compelling the executive to submit to congressional
scrutiny.). The executive has also accrued power in the national-security area because
the judiciary has historically been reluctant to decide issues that it sees as assigned to
the political branches or as beyond its competence to assess. See, for example, Stephen I.
Vladeck, The Passive-Aggressive Virtues, 111 Colum L Rev Sidebar 122, 122-27 (2011).
   2   See Matthew C. Waxman, National Security Federalism in the Age of Terror, 64


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