Totemic Functionalism in Foreign Affairs Law
by Elad D. Gil
In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts afford the President considerable deference in cases relating to foreign affairs. But there is something deeply flawed in the way judges apply functionalist reasoning in this context. Instead of using functionalism for what it is—a contextual and adaptable paradigm for ascertaining whether and how much deference is desired in order to make the challenged policy or act work best—judges frequently simply rely on the executive’s special competence to apply a de facto presumption of near-total deference, which this Article terms “totemic functionalism.” This Article traces the conceptual underpinnings of totemic functionalism and critically analyzes its pervasive effect in foreign affairs law. Using three case studies and other recent examples, it then shows how totemic functionalism undermines the system of checks and balances, first between the organs of government and then, indirectly, inside the executive branch.
Getting Past the Imperial Presidency
by Deborah Pearlstein
In an age in which the “imperial presidency” seems to have reached its apex, perhaps most alarmingly surrounding the use of military force, conventional wisdom remains fixed that constitutional and international law play a negligible role in constraining executive branch decision-making in this realm. Yet as this Article explains, the factual case that supports the conventional view, based largely on highly selected incidents of presidential behavior, is meaningless in any standard empirical sense. Indeed, the canonical listing of presidential decisions to use force without prior authorization feeds a compliance-centered focus on the study of legal constraint rooted in long-since abandoned understandings of how and why legal systems function. While the reality that law does not operate as an on/off switch has long been accepted among legal scholars when it comes to ordinary law—all legal rules face “the fact of violation,” uncertainty in meaning, and a complex array of human motives and incentives for acting—these phenomena seem yet to have informed our understanding of law’s role in shaping decision-making surrounding state uses of force. This Article argues that accounting for these features of law is especially relevant to the study of constitutional and international regulations of state use of force. Applying a more contemporary understanding of how law works, the Article illustrates how shifting our methodological approach away from compliance-centered metrics of legal constraint may require reinterpreting the conventional set of examples we have long assumed we understood. At a minimum, it requires redesigning our approach to the empirical study of executive branch decision-making. And it suggests we may need to rethink what mechanisms may most effectively constrain the “imperial presidency” in the years ahead.
Mutual assistance clauses serve a dual purpose. They commit their signatories to stand up to a common threat and are thereby meant to deter potential aggressors. Their dual purpose places them at the crossroads between war and peace and the intersection between law and strategy. The rise of hybrid threats, however, has led many to question whether the mutual assistance guarantees found in the North Atlantic and EU Treaties remain suited for our present security environment. Adversaries employ tactics that increasingly seem to blur the dividing line between war and peace. The hybridization of warfare thus poses a risk that adversaries may circumvent classic security guarantees. The purpose of this Article is to compare the mutual assistance clauses of the North Atlantic and EU Treaties to determine their scope of application, clarify the nature and extent of the obligations they impose on the contracting parties, and assess their vulnerability to hybrid threats. The analysis confirms that the provisions in question are at risk of subversion, but that the impact of this threat is more limited than is often assumed. Nevertheless, this Article argues that there is no room for complacency. NATO, the EU, and their member states should take steps to strengthen legal interoperability in order to increase the legal resilience of their collective security arrangements against the challenges posed by hybrid threats.
While the two traditional paradigms for the use of force in international law are law enforcement under international human rights law and conduct of hostilities under laws of armed conflict, this Article examines the possibility of a new paradigm of law enforcement under the laws of armed conflict. In the judgment of Yesh Din v. IDF Chief of Staff (Yesh Din) recently given by the Supreme Court of Israel, the court endorsed this entirely new paradigm, which challenges the traditional distinction between law enforcement and the conduct of hostilities. This Article explores the legal justifications of the paradigm and examines whether it has legal grounds to rely upon. It further demonstrates that the new paradigm is vague, permissive, and extremely under-developed. The new paradigm has the potential to be abused by states picking and choosing the norms they wish to apply from either international human rights law or the laws of armed conflict. It is a common saying that “hard cases make bad law.” The arguably problematic judgment of Yesh Din is the result of a complicated and challenging situation that has created bad law indeed.
Credit: Illustration by Adam McCauley