The Abiding Exceptionalism of Foreign Relations Doctrine
In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decision-making in the foreign affairs area in previous years. But foreign affairs doctrine remains resolutely exceptionalist in some areas beyond those identified by the authors as reflecting the “unfinished business” of normalization. When these additional manifestations of exceptionalism are added to the ones the authors have identified, the claim that exceptionalism is now exceptional seems overstated.Part I of this response discusses the authors’ definition of exceptionalism and normalization, which the authors describe as “an independent contribution” of the article, “regardless of whether one agrees with [its] broader normalization thesis.” As noted, their definition collapses the question of normalization with the proper interpretation of the Constitution.Part II challenges the authors’ characterization of some doctrines or decisions as exceptionalist. The authors cite Missouri v. Holland as an example of foreign relations exceptionalism. But the holding of Missouri v. Holland is supported by the constitutional text and is consistent with original intent and the case law preceding the decision.Part III focuses on the judicial enforcement of treaties. As I have written at some length in these pages, the Supremacy Clause establishes that treaties are to be enforceable in the courts in the same circumstances as statutes. Yet the courts have engrafted onto the Supremacy Clause a distinction between self-executing treaties and non-self-executing treaties, with only the latter being judicially enforceable.
Executive Agreements Plus
Can President Obama join the Paris climate change agreement without seeking the approval of the Senate or Congress? According to the conventional, tripartite paradigm for analyzing the president’s treaty-making power, this question is conceptualized as an issue of the president’s independent constitutional power. If the Paris Agreement is not approved by the Senate as an Article II treaty or by Congress as a congressional-executive agreement, then it must be a sole executive agreement.This article challenges the conventional, tripartite paradigm as both conceptually inadequate and historically inaccurate, and proposes a fourth category of international agreements, which it christens “executive agreements plus” (EA-plus). EA-plus are neither congressional-executive agreements nor sole executive agreements; they fall somewhere in between. They are supported, but not specifically authorized, by congressional action. The article argues that EA-plus have a long, heretofore undiscovered pedigree. It explores the Obama Administration deployment of the concept, applies it to the Paris Agreement, and argues that, if President Obama accepts the Paris Agreement, it will be as an EA-plus rather than as a sole executive agreement.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.