Document Type

Article

Publication Title

Harvard Law Review

Publication Date

2015

Page Number

1897

Disciplines

Law

Abstract

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — was not always the prevailing view. In the early twentieth century, a revolution took place in foreign relations law. Under the intellectual leadership of Justice Sutherland, the Supreme Court adopted the idea that foreign affairs are an exceptional sphere of policymaking, separate from domestic law and best suited to exclusively federal, and primarily executive, control. The exceptionalist approach has dominated foreign relations law since that time, but it has always had questionable foundations. Since the end of the Cold War, there has been a second revolution in foreign relations law, one whose scope and significance rival the Sutherland revolution, but one that has gone largely unrecognized. Over the last twenty-five years, the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This “normalization” of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance — the very heart of exceptionalism. This Article documents the normalization of foreign relations law over the last twenty-five years. It demonstrates how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the proper interpretation of Youngstown to the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes. Ultimately, this Article argues that courts and scholars should embrace normalization as the new paradigm for foreign relations law.

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