If that title causes your eyes to glaze over, here’s why you should pay attention:
So let’s look at the overall transnationalist game on customary international law [CIL]: The left-wing academics and NGO activists who populate international conferences will work together to generate and popularize supposed new norms of CIL on matters of interest to them—for example, hate speech, health care, and various other economic, social, and cultural “rights.” Activist judges appointed by Presidents Obama and Clinton (and, alas, some appointed by Republican presidents) will hasten to recognize these new norms as rules of federal common law that (whether or not Congress would have had the constitutional authority to enact them) override inconsistent state laws and that the judges will be ready to enforce against non-compliant presidents. The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office. Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary.
My much fuller explanation — the fourth post in my ongoing Bench Memos series on State Department nominee Harold Koh — is here.