HLS Faculty Scholarship

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments.

The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional–executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them.

Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways.

After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

What should we do about labor automation in the age of artificial intelligence? Early proposals such as Universal Basic Income focused on taxing and redistributing the proceeds of AI. Now, an emerging slate of ideas tagged to the concept of “predistribution” proposes distributing ownership through citizen stakes in AI or sovereign wealth funds. But what is “predistribution”?

This Article presents a positive and unifying theory of predistribution, describes its categories, and explains how it can remake work in the age of AI. For over a century, Americans have focused on tax-and-transfer redistribution to address income inequality in the realm of consumption while calibrating tax policy to produce the right mix of forward incentives for production. Predistribution encompasses the ways of intervening in the realm of production before market outcomes are produced for consumption. This Article defines “predistribution” as the distribution of power over economic outcomes and identifies four categories of predistribution: (1) incentives and bargaining power, (2) public production, (3) ownership, and (4) governance and control.

For the question of how to govern technology and labor automation, the Article turns to the fourth category: governance. Because governing technology at work begins with governing work itself, it examines the law of labor and technology. Surveying the twentieth-century history of U.S. labor and employment law, the Article finds that labor law under the National Labor Relations Act (NLRA) places decisions about technology beyond the scope of worker governance while employment and tax law incentivize labor automation. To address this picture, it advances a model for the future of work based on predistributive governance—distributing control to democratize decisions about technology in the workplace.

Can developing countries rely on liberal constitutionalism to break free of material inequality? Although South Africa’s post-apartheid 1996 Constitution established the redistribution of land as a formal priority, three decades of stalled progress reflect not only failures of domestic governance but structural constraints of international economic law. The conventional developmental wisdom that strict property protection is good for growth—evaluated through the eyes of international investors and enforced through international economic law—operated as a "development trap": an external discipline that locked South Africa into its colonial distributional order while presenting itself as a neutral prerequisite of growth. Because the constraint operates transnationally and without formal preemption, even constitutional orders with transformative language risk devolving into symbolic contests over inequalities they promise to undo. Decades of energetic constitutional politics absorbed the nation's reformist energy while the distributive question was materially settled elsewhere, at the level of the supranational “economic constitution.” Herein lie the limits of "transformative constitutionalism," South Africa's ambitious constitutional strategy: escaping the development trap requires intervening where the constraint operates with pecuniary effect—through a materially oriented development strategy rather than constitutional language. Reflecting on what South Africa's experience suggests for the possibilities and limits of liberal constitutionalism in post-colonial developing countries, the Article names the dynamic at work as 'foreclosure': the closing off of material possibility at one level of law by another, and the investment or politicization of reformist energy in a legal space whose outcomes have already been constrained.

In the name of national security, the Trump administration has taken a stake in Intel, acquired a “golden share” in U.S. Steel, obtained equity stakes in critical minerals companies, and required semiconductor companies to pay the government a percentage of their profits from sales to China in exchange for export licenses. These actions mark a dramatic departure from the traditional U.S. capitalist system, which relies on the market, not the government, to pick winners and losers. Indeed, they carry overtones of a command economy. But as unusual and occasionally illegal as these developments are, they also build on a broader shift that has pushed U.S. companies into a central role in U.S. national security policy in the last decade.

Recent administrations of both parties have invoked the mantra that “economic security is national security.” To implement that philosophy, they have relied heavily on economic tools, including sanctions, export controls, investment screening, and tariffs. While these tools provide important levers for the U.S. government to manage national security threats, their proliferation is also fostering deeper, more diverse, and riskier roles for companies in this new era. We identify five such roles. Companies are: 1) key to security supply chains, prompting government involvement in the companies; 2) front-line enforcers or self-enforcers of economic security; 3) national security proxies for the U.S. government; 4) sources of products that the government uses as negotiating leverage; and 5) sources of funds that the government can extract in exchange for national-security related approvals.

These enhanced, often novel, and sometimes illegal roles for companies in the national security ecosystem pose disturbing costs to public law values, such as legality, rationality, accountability, and fairness. The government’s burgeoning reliance on companies to implement national security policy undercuts public law values by fostering incentives for companies and the government to act unlawfully, creating principal/agent problems, and undercutting transparency. The Trump administration’s latest moves go even further: by introducing profit motives into security-related decisions, they produce conflicts of interest, potential corruption, and decision-making distortions both for the government and for companies. This approach is especially pernicious in national security policy-making because the stakes are so high. The end result will be a United States that is both less safe and economically weaker.

Because many of these corporate roles likely will continue in future administrations (whether Democratic or Republican), finding ways to minimize the risks to public law values is crucial. For each of the risks that we identify, we propose concrete measures that Congress, the Executive, companies, and even allied governments could undertake to mitigate the corrosive effects of corporate entanglement in U.S. national security policy going forward.

Improper confinement of children in migration contexts – unnecessary, prolonged, or in harmful conditions – constitutes a severe and highly troubling phenomenon in the world today, and has reached crisis proportions in the United States. One of the tools that the international human rights system offers for combating this phenomenon is the prohibition of arbitrary detention. The Human Rights Committee’s General Comment No. 35 on the right to liberty and security of person elaborates standards for characterizing detention as arbitrary, in this field as well as others.2 It provides guidance to states, and support to advocates seeking to limit the use of detention against children who cross borders. The standards do not, however, define every instance of detention of a person under eighteen years of age in the course of migration enforcement as inherently arbitrary. The term ‘detention’ covers a range of forms and durations of control, applied in a variety of situations. The general comment’s treatment of the issue is consonant with article 37(b) of the Convention on the Rights of the Child, which requires that ‘[t]he arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.’3 This chapter will first introduce the Human Rights Committee and its case law restricting detention of children in the migration context. Then it will turn to the general comment adopted in 2014, and reasons that favor the Committee’s nuanced approach to the factors that make detention of a minor arbitrary.

Russia’s invasion of Ukraine has put to the test theories about how cyberattacks fit into conventional war. Contrary to many expectations, cyber operations appear to have played only a limited role in the initial stages of the invasion, prompting competing theories and rampant speculation about why. Although written while the conflict continues, this essay considers how either of two broad explanations for the limited role of cyberattacks to date—that Russia’s attempted cyberattacks were thwarted or that Russia chose not to deploy them widely—challenges conventional wisdom about cybersecurity. The essay concludes by suggesting that one lesson international lawyers should draw from the current conflict is the urgent need to clarify and enforce international rules not just for the rare high-end destructive or widely disruptive cyber operations, but also for lower-level operations that have proven more consistently problematic, both in Ukraine and elsewhere. Clarifying such rules could help to manage escalation risk now and in the future, even if such rules—like the most venerable international law prohibitions that Russia’s invasion has violated—do not necessarily restrain behavior directly

Israel has used “targeted killings” against suspected terrorists since the alAqsa intifada began in September 2000. By the end of 2005, almost 300 terrorist organization members and 150 civilian bystanders had been killed in targeted killings, in addition to hundreds of civilians wounded.1 The policy has received wide international condemnation2 and has sparked vigorous debate among scholars about its lawfulness. After four years of consideration,3 the Israeli Supreme Court recently weighed in with the world’s first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities.4 But the court also expanded the traditional definition of “direct participation” and the time period during which civilians may lawfully be attacked. By disregarding the “direct participation” requirement’s important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.

This article considers the life and career of E. Fredrick Morrow, the first African American White House staffer, whose government service in the Eisenhower White House (1955-61) intersected with the classical phase of the civil rights movement. It argues that Morrow’s life and career illustrate an important problem with what it calls “historical time.” Historical time can be defined this way: it is the order of events and the causal forces that historians use to make sense of and organize their narratives and analyses. Morrow’s life and career illustrate the complex nature of historical time as it pertains to the events with which his life intersected. He was an important figure in Black Republican politics during the early to mid twentieth century. He was an equally important figure at the NAACP, and was an important voice in the organization’s leadership as it was debating its future strategy in the early 1940s. He earned a law degree, but surprisingly chose to burn his bridges as he left the NAACP just before its lawyers were about to begin work on the cases that would comprise Brown v. Board of Education. Morrow’s life and career, this article contends, help us make sense of these decisions as illustrations of the difficulty of constructing and narrating historical time, particularly as it relates to the civil rights movement. Indeed, this article contends, historical time helps make sense not only of Morrow’s life but also of the choices and uncertainties that beset mid-twentieth century figures such as Thurgood Marshall and Rev. Martin Luther King, Jr., who acted, planned and promised in a world in which much of the narrative that is now taken for granted concerning civil rights at mid century remained deeply contested and uncertain.

The Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of Sisters left us a mixed legacy, one part blessing and one part curse. Many would agree on this but differ on which part is blessing and which part curse. In my view the blessing is the doctrine of substantive due process protecting personal liberty. The Court did not use this language in these cases, but it did rule that the states’ attempts to interfere with parent rights in those cases violated the 14th Amendment to the U.S. Constitution, and the Court made it clear that in future cases the state would bear a heavy burden to justify any such attempts. In later cases, the Court looked back to Meyer and Pierce as the foundational law when it created important reproductive freedom and relationship rights—the right to contraception and abortion, the rights to sex and marriage for same-sex couples. In my view the curse is the doctrine of parent rights, given the Court’s failure to create any comparable rights for children. More on this later, but first a word on legacy.