The 21st Century National Security Constitution
Harold Hongju Koh* Abstract Even as the Biden Administration’s foreign policy unfolds, in 21st Century practice, foreign relations law seems to have largely become national security law. Virtually all foreign affairs issues have been reframed into national security terms. And because so much of foreign affairs law seems to have become justification for unilateral exercises of executive power, at times it seems almost like not law at all. This Keynote Address, based on a forthcoming book, describes the synergistic dysfunction among our national security institutions that has fostered these trends, explains why the major academic debates over foreign relations law have missed this most urgent issue, and suggests ways to slow the steady march toward executive unilateralism.
Table of Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1392 I. Synergistic Institutional Dysfunction . . . . . . . . . 1392 II. Academic Sideshows . . . . . . . . . . . . . . . . . . . . . . . . 1404 III. The Looming Problem: the President as a National Security Threat . . . . . . . . . . . . . . . . . . . . 1410 IV. Plausible Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . 1419 A. Executive Restructuring . . . . . . . . . . . . . . . . . . . . . . . . . . 1421 B. Congressional Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . 1428 C. Transnational Judicial Engagement . . . . . . . . . . . . . . . . 1433
* Sterling Professor of International Law, Yale Law School; Senior Advisor (2021), Legal Adviser (2009–2013), and Assistant Secretary of State for Democracy, Human Rights and Labor, U.S. Department of State (1998–2001); Attorney-Adviser, Office of Legal Counsel, U.S. Department of Justice (1983–1985); Co-Chair, Restatement (Fourth), Foreign Relations Law of the United States (forthcoming American Law Institute). This Keynote Address was delivered at the October 2022 symposium at The George Washington University Law School to mark the publication of Sean D. Murphy & Edward T. Swaine, The Law of U.S. Foreign Relations (2023). The ideas in it arise from and developed in Harold Hongju Koh, The National Security Constitution in the 21st Century (Yale Univ. Press forthcoming 2024). I am grateful to Eleanor Runde and Michael Loughlin of Yale Law School for outstanding research assistance and to Rosalie Abella, Daniel Bethlehem, Tess Bridgeman, Anupam Chander, Jim Cooper, Bill Dodge, Kristen Eichensehr, Russ Feingold, Mary-Christy Fisher, Joel Goldstein, Monica Hakimi, Rebecca Ingber, Christine Jolls, Steven Arrigg Koh, Doug Kysar, Gerry Neuman, David Pozen, Charlie Savage, Kate Stith, Phil Spector, Bill Treanor, Aaron Zelinsky, participants in the 2022 George Washington Foreign Relations Law symposium, Fordham and Yale Law Faculty Workshops, and the editors of The George Washington Law Review for their insightful comments. December 2023 Vol. 91
No. 6
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