Chevronizing Foreign Relations Law
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Posner, Eric A.
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CitationEric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. 1170 (2007).
AbstractA number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in particular contexts the costs of deference to foreign interests are lower than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines, as long as those interpretations are reasonable. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes to conflict with international law or to apply extraterritorially, it should be permitted to do so. The analysis of the interpretive power of the executive can be justified by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to executive interpretations; sometimes it operates as a valuable analogy. At the same time, the Chevron principle is qualified by doctrines requiring a clear congressional statement, especially when constitutionally sensitive rights are involved. These claims have many implications for legal issues raised by the war on terror, including those explored in the Hamdi and Hamdan cases.
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