The Normalization of Foreign Relations Law

By Ingrid Wuerth, Ganesh Sitaraman
Tuesday, May 12, 2015, 1:15 PM

Is foreign relations law really so different from the law governing domestic affairs? Should it be? We have a new article out this week in the Harvard Law Review that engages these questions in the context of the arc of foreign relations law over the last quarter-century.

Many, if not most, scholars believe that exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — has defined foreign relations law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking.

In The Normalization of Foreign Relations Law, we argue that the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This normalization of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to undermine justiciability, federalism, and executive dominance — the very heart of exceptionalism.

In addition to documenting the normalization of foreign relations law over the last twenty-five years, we show how normalization can be applied to a wide variety of doctrines and debates in foreign relations law, ranging from the applicability of administrative law doctrines in foreign affairs to reforms in the foreign sovereign immunity and state secrets regimes.  The Harvard Law Review website also includes three excellent responses to our article, all of which provide helpful commentary and are well worth reading.