Bench Memos

Harold Koh’s Transnationalism

In a series of posts, I will explain how State Department nominee Harold Koh’s transnationalist legal views threaten fundamental American principles of representative government and how Koh would be particularly well positioned as State Department legal adviser to implement his views and to inflict severe and lasting damage.  In this introductory post, I provide a skeletal outline of the basic arguments that I will be making. 

“Transnationalism” challenges the traditional American understanding that (in the summary, which I slightly adapt, of Duke law professor Curtis A. Bradley) “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.”  Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalists have three primary mechanisms for their revolution.  First, they advocate a new understanding of “customary international law” (or CIL) in which they and other international elites, rather than state practice, generate the norms of new CIL and in which those norms supposedly are binding as federal common law.  Second, they favor an extravagant reading of the treaty power in which treaties are presumptively self-executing (i.e., applicable as domestic law) and the treaty power is boundless in its scope (i.e., treaties can address the full range of domestic policymaking and thereby supplant—and even go beyond the scope of—congressional legislation).  Third, they urge the Supreme Court to reinvent the meaning of constitutional provisions to reflect selected contemporary foreign and international practices.  What transnationalism, at bottom, is all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.

Koh is a leading advocate of transnationalism.  Further, on the spectrum of transnationalists,  ranging from those who are more modest and Americanist in their objectives and sympathies to those who are more extreme and internationalist (or Europeanist), Koh is definitely in the latter category.  He is also very smart, savvy, determined, and dogmatic. 

The position for which Koh has been nominated—the State Department’s top lawyer—would give him plenty of opportunities to implement his views.  Among other things, he would be advising on the legal positions that the United States should be taking in federal courts on issues arguably implicating international law and before international bodies; he would be counseling State Department officials on international negotiations, treaty interpretation, and treaty implementation; and he would be a major player in interagency disputes on all these matters. 

I don’t anticipate that my posts will cover other areas in which the Koh nomination ought to be of deep concern—including its impact on the Obama administration’s detainee policies and its understanding of the President’s foreign-affairs powers.  But I suspect that Andy McCarthy and others will. 

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