Updated 5:20 p.m.
At a panel Thursday sponsored by the Federalist Society and the American Enterprise Institute, two law professors argued that increased reliance on international agencies to handle disputes between nations presents challenges to the U.S. Constitution in ways best solved by American politicians.
John Yoo of the University of California, Berkeley School of Law and Julian Ku of the Hofstra University Maurice A. Deane School of Law criticized the power given to organizations like the International Criminal Court, a main point of their new book, "Taming Globalization: International Law, the U.S. Constitution, and the New World Order."
Their argument hinges on the notion of a loss of American sovereignty caused by increased entanglements abroad, with too much power being taken from U.S. elected representatives and given to executive-appointed officials and the courts. In order to help lessen the negative impacts of this trend, the pair advocated the use of "mediating devices," such as eliminating the self execution of treaties and allocating power to implement international law to the states.
"Congress should first be allowed to say how the country is going to live up to its international commitments," Yoo said.
The suggestion to give the states the power to choose how to implement treaties was met with harsh criticism from another panelist, Jeremy Rabkin, a professor from George Mason University School of Law. Taking power granted to the executive in the constitution and giving it to a legislature, he said, would give lawmakers unchecked authority that could nullify the separation of powers.
"If Congress has the authority to implement treaties, then Congress has the authority to makes laws about everything," he said.
In particular, Rabkin expressed concern that such broad power being foisted onto the legislature could entangle the nation in treaties that supersede domestic laws, thereby nullifying the authority of local officials.
One sentiment, expressed by Fordham University School of Law professor Martin Flaherty, gained wide support from the crowd: that it is far more desirable for elected lawmakers to write and execute treaties rather than the courts, which Yoo characterized as having a "lack of democratic accountability, a lack of transparency." Flaherty used the war on drugs to paint an example of a situation where lawmakers have far more topic-specific knowledge than judges, who could unknowingly set a detrimental precedent.
"Courts don’t know the consequences," Flaherty said. "When in doubt, stay out."
Photo by Rob Stigile/National Law Journal. From left: Jeremy Rabkin, John Yoo, Julian Ku, Martin Flaherty, Jennifer Rubin.