Columbia Law School scholar and former State Department lawyer Rebecca Ingber has posted to SSRN a new article forthcoming in the Yale Journal of International Law, "Interpretation Catalysts and Executive Branch Legal Decisionmaking." Abstract:
Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decisionmaking.
This Article adds necessary texture to these debates by identifying and exploring the role of distinct triggers for legal interpretation–which this Article terms “interpretation catalysts”–in driving and shaping executive branch decisionmaking, particularly at the intersection of national security and international law. Interpretation catalysts impel the executive to consider, crystallize and potentially assert a legal interpretation of its obligations under domestic or international law on a particular matter, and they can both impede and facilitate change within the executive. Examples of interpretation catalysts include such diverse triggering events as decisions whether to use force against an armed group; lawsuits filed against the U.S. government; obligatory reports to human rights treaty bodies; and even the act of speechmaking.
Each of these unique catalysts triggers a distinct process for legal decisionmaking within the executive, and is instrumental in framing the task at hand, shaping the process engaged to arrive at the substantive decision, establishing the relative influence of the actors who will decide the matter, and informing the contextual pressures and interests that may bear on the decision, and thus shapes the ultimate substantive position itself. These distinct mechanisms for decisionmaking each carry their own individual pressures and biases; thus in laying bare the interpretation catalysts phenomenon, this Article demonstrates potential avenues for actors inside and external to the executive branch to predict, to explain, and even to affect executive decisionmaking. This Article will explore the effect of interpretation catalysts on executive legal interpretation, and address some of the implications of this phenomenon for scholars, private actors, courts, and executive branch officials.
This article adds an important layer of texture to the process by which the Executive comes to its legal views. Its important in part because it shows how distinct venues in which the Executive will express views of the law - including the mixture of law, policy, and diplomacy that constitutes the State Department's traditional approach to public international law and organizations - both catalyze and structure the path of legal decisionmaking. It's a fascinating article in part because of Ingber's inside State experience with how these processes work; she has succeeded in tying granular processes to a larger theoretical observation about "catalysts" of legal interpretation and views by the Executive.
Ben Wittes and I have a particular interest in this topic, because of our forthcoming book on the national security law speeches of the Obama administration general counsels and senior officials such as John Brennan. The speeches have sometimes been more or less dismissed as mere PR by the administration, sending out its lawyers to deliver self-serving legal justifications for administration policies on such things as drone warfare and targeted killing. We don't think that's a fair characterization of what the speeches actually say in substance or the traditional role that high level official speeches have long played in enunciating the legal views of the US government - we talk about a group of speeches that have been cleared in the interagency process and which quite clearly reflect the considered legal view of the US government at a given point in time. So naturally we have been interested to read Ingber's careful scholarly study (and of course we don't want to impute our views to her) of the variety of ways in which the US government internally comes to formulate its legal views on international and foreign relations law, and the ways in which it, both traditionally and in contemporary state practice, outwardly expresses those views.