Episode 29 of Borderlines features distinguished scholar Professor Curt Bradley (Chicago) discussing his new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Berkeley Law professor and Borderlines guest host Elena Chachko brings her foreign relations and administrative law background to guide this fascinating interview.
In the more than two centuries since the U.S. Constitution was adopted, the constitutional law that governs how the United States interacts with the rest of the world has evolved significantly. This evolution did not come about through formal amendments to the text of the Constitution or even through U.S. Supreme Court rulings. Instead, it came about primarily through the actions and interactions of Congress and the executive branch, as they responded to the changing nature of both the United States and the world environment.
Listeners will learn how and why the law governing the separation of powers, covering topics such as the making of “executive agreements,” the termination of treaties, and the waging of war, has been developed over time through historic governmental practices, rather than through judicial decisions or constitutional redrafting.
In his 1952 concurrence in the Youngstown steel seizure case, Justice Felix Frankfurter invoked the term “the gloss of history” to describe this phenomenon. Professor Bradley’s pioneering research illuminates the role of historical practice, or gloss, to justify both expansions of, and limitations on, presidential and legislative power relating to foreign affairs. The conversation brings fresh insights about the role of courts, the U.S. legal system’s relationship with international law, and “undeclared” U.S. military conflicts such as the Korean War and the “war on terrorism.”
Curtis A. Bradley is the Allen M. Singer Distinguished Service Professor of Law at the University of Chicago School of Law. Professor Bradley’s research and teaching interests include foreign relations law, international law, and federal court jurisdiction. He has written numerous articles relating to these subjects and is the author or editor of a number of books, including International Law in the US Legal System (3d ed. 2020), and The Oxford Handbook of Comparative Foreign Relations Law (2019). He is also the co-author of two casebooks: Foreign Relations Law: Cases and Materials (8th ed. 2024), and Federal Courts and the Law of Federal-State Relations (10th ed. 2022). Professor Bradley graduated magna cum laude from Harvard Law School in 1988, after which he clerked for Judge Ebel on the US Court of Appeals for the Tenth Circuit and Justice White on the US Supreme Court. In 2004, he served as counselor on international law in the Legal Adviser’s Office of the US State Department. From 2012-2018, he served as a Reporter on the Restatement (Fourth) of the Foreign Relations Law of the United States, and in 2023 he began serving as a Reporter on the latest phase of this Restatement. From 2018-22, he was a co-Editor-in-Chief of the American Journal of International Law.
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Episode Transcript
[00:00:00]
Elena Chachko: Welcome to another episode of Borderlines. You may notice I am not Katerina Linos, your regular host. My name is Elena Chachko. I’m a law professor at Berkeley Law, and it’s a privilege to host our guest today, Professor Curtis Bradley, from the University of Chicago Law School, and to talk about his great new book, Historical Gloss and Foreign Affairs: Constitutional Authority and Practice, now available for purchase. I highly recommend that our listeners check it out.
Curt is the Allen M. Singer Distinguished Service Professor of Law at Chicago, and his contributions to the fields of constitutional law, international law, foreign relations law, and federal courts are too numerous to count. I’ll just say a few things. He is an author or editor of other influential books, including a relatively recent comprehensive handbook on comparative foreign relations law, as well as casebooks on foreign relations law in the federal [00:01:00] courts and federal system. I use his casebook, co-authored with Professors Jack Goldsmith and Ashley Deeks, to teach my Foreign Relations Law class here at Berkeley and my students really enjoy working with the casebook.
Curt was also co-editor in chief of the American Journal of International Law, and he has published extensively in law reviews and other publications. And the final thing I’ll say is that Curt has served as Counselor on International Law in the Legal Advisor’s Office of the U.S. State Department and as a reporter on the Restatement Fourth of the Foreign Relations Law of the United States, which to listeners unfamiliar with the idea of restatements is a hugely influential treatise that articulates the best view of the law and principles that govern U.S. foreign relations law. I could go on, but – welcome, Curt. Thank you so much for being here.
Curt Bradley: Thank you, Elena, and thank you for that introduction. I’m really delighted to be here to talk about my new [00:02:00] book on historical gloss. So maybe I should just say a few words at the beginning about what the book covers, maybe even the nature of the term “historical gloss,” which wouldn’t necessarily be familiar to the listeners.
Probably the place to begin in thinking about what motivated the book is the nature of the U.S. Constitution, and in some ways it’s kind of unique. It’s basically the oldest written constitution now in the world, over 230 years in existence. And it’s one of the most difficult constitutions to actually amend, to formally change.
I teach in the foreign relations area, as you do. And one of the things I know when looking at the Constitution is it’s never been changed with respect to its foreign affairs components in more than 230 years. But we all know both the United States as a nation and the world has changed quite dramatically from the time the Constitution was written, way back in the [00:03:00] 1780s.
And that can create some puzzles. When I teach the course, I talk with my students about this, which is if you read the text of the Constitution, in part, I think because it is so old and hard to change, you will just not find answers to a lot of core questions of foreign relations law. And a lot of the powers of the government are not even written in the text. There is no power, for example, to regulate immigration, surprisingly so. A lot of the things that the government does, like recognize foreign sovereigns, extradite suspects to other countries, issue passports: none of it’s actually mentioned in the Constitution. And the thesis of the book is that a lot of the questions about the authority of Congress, the authority of the president to conduct foreign relations, have actually been worked out after the founding through the practices of those branches of [00:04:00] government.
And that, for the most part, the courts have stayed out of these issues, but when they’ve come in, the courts themselves have largely deferred to the accumulation of practices. And I call this accumulation “historical gloss.” One way to think about that term is imagine like medieval scribes glossing the Code of Justinian or a theological text.
In effect our government actors have been “glossing” our constitution for a very long time. And that is, much of our constitutional law of foreign affairs, it’s actually not in the text. It’s rather through these accumulation of practices or gloss. And the thesis of the book is, descriptively, that is a lot of our constitutional law. It’s not explained by the text. And that in many ways, it often leads to a good state of affairs. That is, the political branches themselves, although far from perfect in this domain, are likely better [00:05:00] at working out some of these issues than the courts would be.
So this is a very different story than we hear usually in U.S. constitutional law, say about rights, where the courts are the dominant focus and we always focus on the Supreme Court. This is kind of an old style of constitutional law, not dominated by judicial review, but rather much more worked out, outside of the courts.
Elena Chachko: Great. So thank you so much for this introduction, which walks us through the motivations for the book. And one of the first questions I’m curious about, and drew my attention when I was reading, was why do you think gloss has been so dominant in foreign affairs in particular? As compared to domestic constitutional interpretation, where you don’t see as much reliance on the practice of the political branches?
Curt Bradley: I would first note, gloss is not unique to foreign affairs. I do point that out in the book. When we see issues generally about what we call separation of powers, [00:06:00] questions about the distribution of power between Congress and the president, or even between the House and the Senate, within the Congress. Even outside of foreign affairs, historical practices have often been given a lot of weight. I do think it’s particularly heavy in the foreign affairs area and I think always has been.
And part of that story is that for a variety of reasons, the courts have had a particularly low profile in addressing foreign affairs issues. We have all these limiting doctrines in the U.S. for when courts can get involved. Like you have to have standing to sue. There’s a political question doctrine that limits some of the cases that the courts will hear. And it just turns out, foreign affairs issues tend to be more heavily impacted by those limiting doctrines.
But even beyond that, I just think courts perceive they don’t have a lot of expertise with respect to foreign affairs. They would have difficulty predicting the consequences of deciding one way or the [00:07:00] other. And they don’t think they have the same kind of expertise or access to information that, say, the Congress or particularly the president has. So they’ve almost always been pretty deferential in this space, even when they have been less deferential in some other areas of law.
This is not a new development, I should emphasize. When working on the book, I dug through very early congressional debates, even from the very first Congress in the late 1780s, early 1790s. I’ve looked at presidential administrations and their legal advisors from the beginning. And almost immediately, what I saw was not references to originalism or what the founders set in motion, but even within a decade, actors were regularly saying, “We now have some practice. Let’s use this as nonjudicial precedent. Let’s be guided by what’s happened.” Even when the Constitution was quite young, that became a very heavy style of reasoning. [00:08:00] And we’ve really never stopped. It’s never been the case that we’ve had a significant orientation around originalism in foreign affairs.
And that’s quite different, as you know, from some of the domestic areas, where at least really maybe since the 1980s, there have been, significant proponents of originalism going back to the founding for other issues. But it just never has seemed to take hold in the foreign affairs space. And I don’t see signs even on this current Supreme Court that that’s likely to change. Even among the originalist justices, they seem to be holding the course to largely let the constitutional law be developed in a more non-originalist fashion.
Elena Chachko: Great. That actually relates to another set of questions that I thought I would ask you later, but since you’ve raised this, I will ask you now.
I think one of the most important contributions of the book is in providing a normative justification, a normative account, of why the resort to gloss in constitutional interpretation [00:09:00] is not only happening, but is also appropriate and desirable. And you do a lot of nice work in reconciling your view of gloss with the dominant constitutional interpretation theories out there, which you basically split into two categories, originalist theories and non-originalist theories.
And you show that gloss can actually live in peace with even some versions of originalist theory, which I think is a very interesting argument. I was wondering about another strand, or emerging strand, of theory that’s coming out of some of the recent Supreme Court cases like Dobbs, which overruled Roe, and Bruen, the Second Amendment case, where the court, or some justices at least, appear to emphasize tradition. Some new idea of how history might play into constitutional interpretation.
And I guess I was wondering, I see a difference, but I [00:10:00] wonder what your view is about the differences between this new strand of interpretation and what you see in creating this normative account of gloss.
Curt Bradley: That’s a great set of questions, and it does tie into a lot of the recent decisions of the Supreme Court.
Just to go back to a couple of earlier things you said first. I do emphasize in the book that some of the more recent strands of originalism, if you look at the scholarship, do seem friendlier to taking account of post-founding practices. And some of the originalist justices on the court also seem receptive to it in some recent decisions they’ve written.
There’s a variant of originalism that is where people talk about what they call constitutional construction. That is maybe treating the original founding as kind of setting up a structure that maybe everybody understood would have to be built out to some extent over time, and in this space I think we’ve definitely seen that.
So I think there are ways of accommodating at least certain approaches, [00:11:00] various versions of originalism, with historical gloss. Now, in terms of its normative appeal, and I certainly do not try to oversell it in the book because we can all think of ways in which some of the governmental practices have been less than perfect. But the book emphasizes that the practices that should get a lot of weight have typically been longstanding, stable, not subject to repeated contestation, and bipartisan. That’s a word we rarely hear anymore, but most of the practices in the book have really crossed both major political parties for very long periods of time.
And whether we call it acquiescence or something else, usually there are also practices where the affected branch of the government is not heavily pushing back. And we have at least a stable kind of equilibrium for a while. And the book argues that probably the political branches are [00:12:00] usually in the best position to think about what works well in terms of governance, at least as compared to the alternatives. And the main alternatives would simply be the judiciary. I don’t know of another alternative.
I think the courts are correct in thinking they’re probably not the optimal decision-maker in figuring out what the practices ought to look like in managing our diplomacy and various parts of foreign affairs. So I think it’s as an “as compared to what?” story, that the political branches probably are better decision-makers. Maybe later in our discussion, we can come back to some ways in which it isn’t always optimal. Your last part of your question ties to some of the recent cases in the court where we hear about history and we hear about tradition.
And a lot of these cases, whether they be like Dobbs in the abortion area, Second Amendment cases about gun rights – we’re hearing a lot from the conservative justices about history and tradition. In one of the recent Second Amendment cases, in fact, [00:13:00] Justice Kavanaugh just cited a bunch of scholarship, including my gloss work, but also a lot of history and tradition rights work, and said it looks like, to him, the history really does matter in a post-founding way. He actually said out loud, he didn’t quite know how to sort through possible differences between these approaches to history. In the book, I take a pretty strong stance that I’m only defending historical gloss with respect to issues about distributions of governmental authority typically in the separation of powers area, and not defending it with respect to figuring out the contours of individual rights. And one significant reason for that distinction is traditions of, say, the majority of a population may be quite regressive and problematic from the perspective of rights.
We can all think of many examples in American history where the traditions were exactly the thing we needed to move away from and thankfully, in some times, we did. And also, rights, at least some of them, are designed to [00:14:00] protect people against majoritarian impulses and majoritarian power. And the idea that those majorities, just by virtue of being majorities, somehow get to also dictate the rights seems antithetical to the whole enterprise of protecting people from those majorities.
Now, separation of powers are not unrelated to liberty, not unrelated to rights, but they have a less direct connection. When we ask questions about who can pull us out of a treaty or recognize a country’s sovereignty, the connection to rights is certainly less direct than, say, your right to choose, or your right to bear arms, or something like that.
And I think the normative case for gloss is much stronger with respect to these allocation questions than they are to protecting people’s rights. And the final thing I say is, government institutions have a lot of power. They have a lot of tools at their disposal. Congress has power over money, for example. The president, obviously, has a lot of power to act, and then wait to [00:15:00] see how Congress responds.
Those branches are in conflict a lot. They bargain with each other. They have tools they can use to try to assert themselves and they do assert themselves. Individuals do not have that same kind of power when dealing with the government. And so I think also just the power imbalance argues for a different way of thinking about history when you get to the rights area.
Elena Chachko: So I’m not trying to get you in trouble or anything, but would you say your approach would be a critique of the way the Supreme Court has been using tradition in the individual rights context? Or would you just say, “I’m not”?
Curt Bradley: The safest answer would be that it’s not my project and I would probably have to do more work in it. When reading some of these recent decisions, I have been skeptical about the way in which some of this history is being used in the rights area. There have been other people who are much more knowledgeable than I that have critiqued the levels of generality that are sometimes adopted; the very selective use of some aspects of the traditions and not [00:16:00] others; and more generally, the difficulty of translating old practices to very new kinds of settings, which I think is a very big problem and allows, I think, the judges probably much too much discretion over how these rights issues will cash out. By the way, in the gloss area, as to separation of powers, that’s actually a good argument for the courts to stay out, is the difficulty of translating some of these older practices to new world events and new issues that the United States faces. And so the very arguments for judicial deference in my book would probably cut against some of those decisions. But it’s not a topic that I tackle in the book.
Elena Chachko: Let me segue back into the project. You’ve done an incredible amount of archival research and review of historical practices in preparing the chapters for this book and in developing this idea. What popped out as the best examples of gloss [00:17:00] in Supreme Court practice, and were there any examples that you found particularly indicative of inappropriate reliance on practice that you would like to share?
Curt Bradley: I have a number. Some of the chapters in the books are just actually fully developed examples. And as you said, some of them, I had the delight of actually digging through some archives, particularly government papers and the like, to see what the executive branch’s reasoning is, even if they haven’t always publicly disclosed it, and that was quite enlightening.
So let me just give you one example. The Constitution specifies only one process for the government to make treaties. There’s only one process in the Constitution, and it’s a very difficult one. The president has to get two-thirds or more of the Senate to agree on the treaty. And there were reasons to make it difficult. I think the founders actually didn’t want a lot of treaties at the founding. They were worried about being pulled in too much into European affairs and the like. But two-thirds of the Senate is [00:18:00] unduly difficult over time. It became unduly difficult for the government to make the agreements it needed to, to have deep cooperation, particularly as the United States became more deeply involved in foreign affairs and became a world power. It’s needs for making agreements went way up.
And then if you go all the way, say, to the 1930s and 1940s, the world, of course, is changing. Many new countries; the United States is a superpower. It’s making agreements with, all these nations around the world. And the idea that every single agreement has to go to two-thirds of the Senate – think about today how hard that would be. That means getting lots of senators from the other party to go along. We know that just doesn’t happen much any more. But the United States needs to be able to cooperate. And most people think increasing international trade, setting up important international institutions the United States supports, trying to get harmonization of standards to make the world work better, they’re all good endeavors.
And so what do we do? Well, [00:19:00] starting at the very beginning of the country, but certainly increasing a lot over time is presidents have made what we call executive agreements. By the way: Those are just treaties. On the international stage, they’re just more treaties. We have to have a different label in the U.S. because they’re not the ones that go to the Senate, which we call treaties. And they were kind of a relatively minor affair in the early days of the nation. Over time – I’ll just give you a figure. So, if you look for the 50-year period from the late ‘30s to the late ‘80s, we made about 700 treaties overall in that 50 year period. The United States made over 11,000 executive agreements. So more than 90 percent of the U.S. practice is not going through the treaty clause of the Constitution. Not surprisingly, the executive branch in defending this practice, and for example, with respect to the GATT agreement on world trade and the NAFTA agreement, referenced and placed a lot of weight [00:20:00] on all of the practice that had been built up.
So have the courts. The courts actually got a few cases concerning some of these executive agreements when presidents have settled claims at times, for example. The Supreme Court, whenever it has had these cases, has said out loud that we should give significant weight to longstanding practices of government, even though the text of the Constitution doesn’t talk about it.
I think we can say Congress is largely on board with this as well. Congress actually sponsors a lot of these agreements. There are some skirmishes at the margins. I think the Senate has obviously lost some authority over time; I would say a minority of the Senate. So, there are times when some senators decry not having as much of an ability to block treaties as they probably once did.
But for the most part, there’s a consensus. Congress and the president both agree we need more flexibility to make agreements. And the courts, seeing this very long pattern of practice, [00:21:00] have deemed it constitutional. But not because it’s in the text, but because this is how the government has figured out a way to operate effectively in international affairs.
It’s hard to find a lot of people who think that all should be thrown out. I don’t know of any scholars who’ve said this is all unconstitutional. Again, mainly debates at the margins. I think this is a good news story. I think it’s basically impossible to amend the Constitution to address issues like that. Most people think international cooperation is a very positive development. This enables it, and it avoids some of the deepest problems in governance, which we see with high levels of partisanship. And we can talk more about the nuances of that, but I think that’s a very positive story. It’s one of the early ones in the book, where all the branches of government have relied heavily on historical gloss.
Elena Chachko: And the bad news?
Curt Bradley: Well, there’s always bad news, of course. So when I think about the examples in the book where I might get the [00:22:00] most resistance or the most questions, probably the one that would trigger that concerns the use of military force. It’s a more complicated story than the one about executive agreements. And people’s views about force vary widely. I think most people think having international cooperation and agreements generally is good and it often avoids the use of military force. So it’s generally a net positive. Military force, people have strongly varying views about when it’s desirable, if ever.
And the history here is complicated because first of all, the text does say a few things. It says that Congress can declare war, has the power to declare war, and has some other military-related powers given to Congress. But – and I did a lot of the research about the early days on this – the President was made the Commander in Chief, and there’s no definition of that in the Constitution. Plus, you have to take yourself a little bit back in time to imagine what it was like in the early days, Congress was not in session at least half of every [00:23:00] year. Literally not there, not in wherever the Capitol was to meet and deliberate.
So presidents were the only part of the government kind of always on duty. So if crises happened, it was the presidency that had to take the initial lead on that. And so that quickly led to a question, which, you maybe think they should have addressed in the text. What about just defending the United States, particularly when Congress is not in session?
Well, most actors, even though it’s not in the text, thought, “It must be – the president as Commander in Chief must have some defensive war powers.” But there were just always uncertainties and ambiguities about how that worked, particularly in a world in which the United States finally started having a navy, with a presence increasingly around the globe. And imagine communications were also very slow, and so Navy commanders had to make decisions about protection and protecting the U.S. interests and the like, and responding to attacks. And so we get a lot of kind of low-level uses of military force building up over time in the 19th century, sometimes [00:24:00] controversially, and Congress would sometimes push back, but a lot of times, not so much.
I would say the big wars, Congress was involved. And I think it was assumed that they had to be involved, to declare war or otherwise authorize conflict. If you think about the War of 1812, the Spanish-American War at the end of the 19th century, what have you – Congress is involved. And then it changes, to some extent, which is the United States now has a large standing army, a large navy. It has colonial possessions after the Spanish-American War. Just to pick out one turning point: in 1900, the U.S. now has troops in Asia because they’re located in the Philippines and there’s a big rebellion in China. President McKinley is able to send thousands of troops on his own authority to try to quell the Boxer Rebellion and protect U.S. citizens there. And Congress is not involved.
Now Congress does not heavily object to this, interestingly. There is a crisis. There’s a sense of protection and defense and [00:25:00] promoting U.S. interests. And Congress, by the way, it’s often at least as hawkish, if not more so, then the president is. So I wouldn’t say this is a big constitutional conflict, but presidents then in the early 1900s are using the Navy to protect interests in Latin America, for example. Now, you know, “complicated.” The two big world wars, Congress is very involved, as you would hope. And then a dramatic thing happens, which is the Korean War. In 1950, Truman sends thousands of American troops into Korea, never gets authorization from Congress, and fights a several-year war with huge casualties without a direct authorization from the legislative branch. Now, Congress did not have a big uprising, at first, about this. I think if Truman had asked for a vote in Congress, he would have won overwhelmingly to go in at the beginning of the Korean War. North Korea had just invaded; strong sense the United States should do something about it. And he just decided not to go to the legislative branch.
Now, the war became unpopular. And [00:26:00] then people in Congress started criticizing him for this. But it probably wouldn’t have been difficult to get authorization at the beginning. And then, you know, a complicated story, where I would say since then, we don’t have Korean War-like situations without Congress, but we have lots of short-term uses of force, aerial bombardment-type conflicts, even some short-scale time invasions, like Panama and Grenada, without Congress authorizing.
And the practice for the last 75 years, is basically that for short-term uses of force not likely to lead to protracted ground warfare, presidents, for the most part, have not gone to Congress first. And that is the position of the executive branch lawyers now, which is that if “the nature, scope, and duration” of the potential conflict is not likely to turn into a war, kind of a vague term, the president does not have to go to Congress first.
There’s some controversy about that. That is kind of the practice, and it’s now [00:27:00] quite longstanding, that except for something like the Iraq War where President Bush did go to Congress, or the war in Afghanistan where they also went to Congress – that for other kinds of conflicts, it’s not constitutionally required that they first seek legislative authorization. And you can see why this would be controversial. Some people are quite worried about presidents abusing the war powers or getting us recklessly into a conflict. And I get that.
I’m not sure, by the way, that requiring Congress to do more would keep us out of those bad situations. In my opinion, the two worst military conflicts since Korea that the United States has been involved in, which is the Vietnam War and the Iraq War of 2003, were both authorized by Congress. And there’s actually a danger that getting Congress to expressly endorse big use of force could actually increase the recklessness of presidents, as [00:28:00] opposed to the political risk they might take of doing it on their own. It’s not absolutely clear that legislative involvement leads to better outcomes.
But, I guess more importantly, just as a descriptive matter, I don’t see it changing. That is, presidents now for 75 years or more, if you go back to the Spanish-American War period, have believed that they have the sum authority to use force to protect American interests, as long as they are short-term, relatively low risk of U.S. casualties and the like, and Congress has not heavily pushed back. There are periods where Congress has pushed back in select ways, but I don’t think enough to destabilize that. Probably the most controversial proposition in the book is that there probably is a practice-based authority of the president to at least engage in relatively low-intensity uses of force that are not constitutionally required to go to the legislature first. But I expect not everyone’s going to agree with that.
Elena Chachko: And I think the story [00:29:00] about the development of the president’s power to commit U.S. forces into foreign conflict raises a general critique. [Laughter] You’re smiling, because I know you probably fielded this question a thousand times, but I think it’s an important one.
And it goes something like this, or at least the critique goes something like this. Over time, the accretion of practice supports the executive branch. Therefore, “might makes right.” The executive has a bunch of institutional incentives and advantages over Congress that enable the executive to be more active, to create more precedents over time. And we saw that play out a little bit in the Zivotofsky case and other instances, in particular in the use of force context, right?
And you address this critique and you say, actually, contrary to common belief, I will show you that Congress, in fact, sometimes wins. And so it is not [00:30:00] necessarily the case that reliance on practice over time disproportionately or inappropriately advantages the executive.
So, what can you tell us about the situations in which Congress wins?
Curt Bradley: Absolutely. And as you noted, if you had to pick out one kind of set of concerns or a critique that people do invoke when we think about accretion of practice, it is the true observation that the president has an easier time doing things and developing patterns of practice. Congress has a collective body, with two parties always kind of fighting with each other, has a harder time laying down markers and resisting. That critique, I think, is correct. However, to go to the Zivotofsky case you mentioned, which is the case where the Supreme Court held that Congress has no power even to regulate issues of recognition, even through the passport mechanism in that case – one of the strong claims of the book is that historical practice [00:31:00] does tend to support a lot of claims that presidents can act and take the initiative, but almost never supports claims that Congress cannot come in and regulate. And so a key theme of the book is that even though presidents have a lot of initiative authority in foreign affairs, practice also supports Congress’s authority and right to come in and regulate the terrain if they wish to do so.
And they have sometimes. In my account, that’s a statute. It should bind the executive branch. Presidents should normally be required to follow statutes, full stop. Congress doesn’t always do that. There are many instances in which they lie back. And war powers is maybe one of those areas where they have been reluctant to kind of try to take back authority. But this point, that practice supports independent authority of the executive, but not exclusive, I think is important. And was very different from Zivotofsky, where they actually just pushed Congress out of the picture altogether.
Now, bigger picture issues about the executive. [00:32:00] So let’s assume one agreed with me at least about that point. You might still be worried, “Well, the president having a power of initiative is still quite a lot of authority,” and there’s no question that’s true. I do ask people who have this critique what baseline they’re using when they say “the president’s getting too powerful in foreign affairs.” I think that’s kind of a common phrase you hear. There’s actually a famous phrase called the “imperial presidency” Arthur Schlesinger talked about. But when I ask people, “Well, how do you know the president’s too powerful in foreign affairs?” I’ll ask them, for example, just a random example: “Do you think Biden has too much authority in trying to help Ukraine?” I often hear people say, “No, no, I’m glad he’s doing that. It’s, saving the international law and hopefully stopping territorial aggression. And actually maybe Congress is the problem there, sometimes being too obstructionist. I’m glad Biden has that authority,” I sometimes hear. But then they’ll say, “But I didn’t like some other president who did something else in foreign affairs,” terminated a treaty or something. And then the critique sounds much more about whether you like the president or not. [00:33:00] That’s not a theory about presidential power. That’s just a theory we ought elect good leaders, in my view.
When I looked at the different presidencies, the president who contributed the most to historical gloss, giving the presidency the power of initiative, was Franklin Delano Roosevelt. He’s the one who did the most. If you had to look at a big turning point, that’s when it’s happening. And when you look at lists of the greatest presidents in American history, he is near the top of the list. People think he’s one of our best presidents. Even though he – probably part of the reason he is a great president – is faced with massive dangers and difficulties in the world. Roosevelt did act and took lots of initiative, and people think it worked out well and that this was a good thing to do. So I don’t think people always have a very good base.
Now, I suppose you could say if you’re a, you know, strong, strict originalist, the baseline is “whatever authority George Washington had in 1789 is the only authority that Biden should have.” First of all, I’m quite doubtful [00:34:00] that would be normatively, in any possible world, desirable. The world is too different to say that we’re limited to what George Washington did.
But there’s even actually a bigger problem. When I read records of the George Washington Administration, he himself was aware he was creating historical gloss. Every action he took he realized was new, and was precedent-setting, and he was trying to think what would make most sense if he was going to start building up practice and precedent. He was not saying “the founding dictated X or Y.” He knew he was part of an ongoing project of starting and creating practice. So you can’t even go to George Washington to pick the right baseline.
As you can kind of tell from that question, I actually am not even convinced that presidents, as a systematic matter, have too much authority in foreign affairs across the board. There are, of course, instances where I wish Congress was more interventionist or set better guidelines. But I’m not actually convinced myself that we can comfortably say “the presidency is way too [00:35:00] powerful in foreign affairs.” Probably most powerful countries in foreign affairs require a pretty powerful executive just to respond to the many problems in the world. I think as long as the president’s good, that’s actually a desirable state of affairs, particularly if you have a legislature who has the power to come in if there’s a problem, or if things are not working well, to try to take over some of that terrain. And the book really pushes for Congress to have that authority. And ideally, I hope people, staffers in Congress, read the book, because it also encourages them to actually use that authority.
Every time I say that, some people will tell me, “Oh, well, that’s just never going to happen. Congress never does anything,” or something like that. Well, when I was writing the book I was doing a paper about how the executive does all these executive agreements, it wasn’t reporting to Congress, and it would be great if the executive was required to at least be more transparent. And a lot of audiences said, “Oh, well, Congress will never demand more transparency.”
Lo and behold, while I was writing this book, Congress [00:36:00] passed the most sweeping transparency law for international agreements in 50 years. Passed it. Did the executive want that law? No. They were grudging in their willingness to sign it into law. But it is the law. And they’re complying with it. I’ve checked State Department reporting lately. I think we give up on Congress a little too quickly, and we ought to all encourage the legislative branch to come into the picture when things don’t seem to be working as well. And hopefully that’s at least one of the themes of the book.
Elena Chachko: That’s great. And you also had notes on that new statute with the colleagues that you worked on that study with. [Laughter]
Curt Bradley: Yes.
Elena Chachko: Another slightly counterintuitive argument that you make in the book is that folks who talk about executive compliance with international law normally think of international law as a constraining force.
And you show, through documenting reliance on gloss, that actually, in many cases, reliance or resort to international law has been used to augment executive power throughout history. So I’ll [00:37:00] first ask you to give us an example of how that works. And then I’ll have a few more questions.
Curt Bradley: Absolutely. And I have written some of this before; an article, for example, with Professor Jean Galbraith about the war powers area. And maybe that’s just a good example to start with, since that was one of the more controversial examples in the book.
A lot of people who are enthusiastic about international law doing work in the United States, I think have this idea that if the executive is abusing authority or doing problematic things and maybe we don’t have enough materials in the Constitution to stop that from happening, but maybe international law is the solution.
And the book doesn’t rule out some possibilities there, of course. But what the book does observe is that for the most part, if you look, for example, just at war powers and how issues of international law have been invoked by various government actors, it’s primarily been one of empowerment. That is to [00:38:00] say, because the Constitution is unclear and we have to figure out things, such as what’s the defensive powers – I mentioned that earlier – of the government, presidents repeatedly would resort to international law to help compensate for some of the vagueness and ambiguities of the Constitution, to give them authority.
Now, if international law seems too constraining, they will shop over back to the Constitution. And it is typically in the case that these have just been treated as two different sources of authority to act, whether it be – let’s go fast forward. Take Truman. I mentioned Truman doing the whole Korean War without a congressional authorization.
What was one of his main arguments? He doesn’t need to go to Congress. He has the U.N. Security Council, which authorized measures against North Korea. That’s a source of authority. We had agreed, after all, to the U.N. Charter. And so he could just use that source of authority, instead of maybe a congressional one.
And that type of move has [00:39:00] been much more often the way in which international law has been used to drive domestic debates about authority, rather than one I think people imagine or hope for, which is somehow it would come as a huge break on the United States doing certain things in the world. Here’s an example where it was not a break: the Iraq War in 2003. My own view is that the United States clearly violated the U.N. Charter in exercising force in Iraq. Some people disagree with that. But I think that’s the better conclusion. The United States wasn’t being attacked. The Security Council, in that case, did not authorize the use of force. But in that case, the president, Bush, was able to go and use the legislative authority, which he got as a source of authority, and not worry about the international law.
And of course we don’t have a world and maybe aren’t going to get one anytime soon, in which Congress would be constrained by that international law and indeed, Congress would heavily resist [00:40:00] that proposition as would the Executive. In the war powers area, by the way, the biggest intervention Congress has ever made is a night in the 1970s when they passed the War Powers Resolution. This is after the unpopular Vietnam War. Nixon is unpopular. They do take charge of this issue, a hugely important development. They do it over Nixon’s veto. And it’s a statute. It’s on the books today, and it’s a very poorly drafted statute in my opinion. I wish it were revised and tightened up, but it is what it is, and Congress passed the statute. But if you look through the statute and the various limits in it, one thing you’re not going to find: any reference to international law as a limitation. This is Congress’s biggest intervention in war powers ever. It does not see fit to try to marshal international law as the break on war powers. So instead, the picture has primarily been one of empowerment.
And I picked that example of war powers because that’s the one I think people get most worried about. People [00:41:00] might not be as worried to know that’s also the case for executive agreements. One example we haven’t talked about is pulling out of treaties. Some people think maybe we should never pull out of treaties. I think that’s a little bit too strong. There are some treaties we all recognize have served their purpose, or maybe not working well, or, what if the other party’s breaching the treaty? Shouldn’t the U.S. consider pulling out?
In any event, the Constitution doesn’t tell us who gets to pull us out of a treaty. Nothing in the Constitution about it. And you can imagine all sorts of answers. Maybe it should be the Senate who approved the treaty in the first place. Maybe it should be the full Congress. Or maybe it should be the president, kind of the answer today. Well, presidents, in doing it on their own, have said basically that under international law, the head of state is allowed to notify the parties in the depository of the termination. And the international law says if you get a notice from a head of state, like our president, that is the notice of termination. So, international law treats presidential action here [00:42:00] as dispositive, effectively, thereby empowering the president to kind of assert unilateral terms.
Now, I, myself, am normatively okay with that state of the world. Not everybody is. I think that if the treaty’s not serving U.S. interests, and particularly if it allows for termination, I don’t object too much for the president taking the initiative. But the fact is, international law is a style of argument there for why we shouldn’t worry too much that it’s not in the Constitution because international law allows heads of state to take the lead. You can just see it almost in every example in the book, where there’s almost a shopping between constitutional authority an international authority and almost never this idea that it’s coming in heavily to restrain the president or certainly the Congress of the United States.
Could I imagine such a world? Sure. Some other countries who wrote much more modern constitutions have built international law in as much more of a constraint on their government, sometimes elevating them to the level of constitutional [00:43:00] status. The United States did not do that in its constitution. I don’t think there’s any huge desire on the part of the government to go down that road. So just as a matter of practice, international law has not had this constraining feature in the U.S. It’s been much more of a source of empowerment.
Elena Chachko: Mm hmm. So I completely agree with you as a descriptive matter – and I don’t think anyone’s done more work to show that this is the case than you. I just wonder, and that’s a critique that’s out there, have those references to international law been a precise representation of what international law says on a particular question or some sort of opportunistic international law argument that’s incredibly expansive?
And I’m thinking about the arguments made in the context of a global war on terrorism that stretched the law of armed conflict, according to some critics, beyond recognition. So the question becomes, is it true that international law is by definition enabling or is it just an [00:44:00] artifact of the way the United States has been interpreting international law, or the Executive at least has been interpreting international law, on certain points?
Curt Bradley: That’s an extremely fair question. First of all, international law has kind of two big styles of materials. One is written down in treaties. Some treaties are very specific. Of course, many are not very specific. They’re subject to interpretation. And then there are lots of norms of international law that aren’t necessarily in treaties that countries or the U.S. is signed up to but that are longstanding customs and that have some binding force.
International lawyers recognize both types of international law. One of the issues is that the more customary type of international law, which is doing a lot of work in the war powers and other areas, no question, is an evolutionary body of law in modern time at least. That is, it’s subject to state practice, changing over time. It’s subject to what the beliefs of nations are about what’s binding and what’s not. And the U.S. participates in that [00:45:00] style of development. Knowing that U.S. courts have really, forever, I think, been quite deferential to the political branches as they participate in that kind of dynamic, not insisting that they have the best reading of the customs or even the vague treaty provisions, but rather allowing them space to bargain and negotiate and put out their own stances on the meaning of these provisions.
Some other nations may push back. Actually, many times other nations come along eventually to the U.S. point of view and obviously not always. And that kind of dynamic process is one that the U.S. courts have largely thought they should let Congress and the president handle.
So if you think about the war on terrorism – I’ll just pick one doctrine out. The U.S. articulated an idea that it could use force against terrorist organizations in countries that were unwilling or unable to stop the terrorist threat. That was controversial. I think it still is controversial. Some other countries have eventually agreed with the idea, and some have [00:46:00] not. And without defending it fully, if you think about the U.S. point of view, after, say, the 9/11 attacks, if another country is, in effect, hosting, or unwilling to do enough to stop a serious, ongoing threat that could kill thousands of people in the World Trade Center and the Pentagon, take down airliners, and that threat was just going to persist because of some norm that says you can’t invade the territorial integrity of Afghanistan or whatever state it is. It’s not a great state of affairs.
And if the only answer is, “Well, work through the Security Council,” anybody who studied that Council knows that it rarely works on these sorts of issues. It basically didn’t work at all during the Cold War. It worked a little bit for a period right after the end of the Cold War. That didn’t last long. Not surprisingly, the United States is unlikely to get Russia and China often to agree. And they can veto, just as the U.S. can, any resolution.
The Security Council is often not functional [00:47:00] in protecting peace and security. And in that world, is it really the case that you’re going to tell a nation-state, “You have to just be exposed to significant risk to your nation” because some other nation is just unwilling or unable to deal with an emanating threat? I just think it’s not a great state of affairs. And we don’t have a good institutional solution to it. So, at least it’s understandable to me that U.S. courts are not going to take that issue over, take it away from the president and Congress. They’re going to let the U.S. stake out its views on this, maybe controversially, and other nations can obviously push back.
But it is the case, I think, that we’re asking too much of international law, if we think somehow U.S. courts are just going to start imposing world security policy on the government. They’ve never had that inclination, and they don’t have the competence to do it. And it’s not the place to work out some of these difficult international issues. So, I think it’s not a realistic way of thinking about [00:48:00] what international law can do in these settings.
Elena Chachko: So we walked through what gloss is, how it operates, where it’s situated in relation to other constitutional interpretation theories. We talked about some of the counterintuitive arguments that the book makes in that the president doesn’t necessarily always win, or at least there’s always the possibility of Congress stepping in, and we talked about the role of international law in all of this.
We’re now approaching the end of our time. We haven’t said anything about Frankfurter yet, which is interesting in a conversation about gloss. [Laughter] So I leave it to you to decide if you want to say a few words about that.
But a good place to end would be: the book is a phenomenal descriptive account of gloss. It has novel normative arguments to justify reliance on gloss. But does it also have a reformist objective? In other words, are you happy with the way things are? Do you think things are working more or less the way they [00:49:00] should in the courts’ reliance on gloss, in the executive branch’s reliance on gloss, in the constitutional interpretation, or are there particular reforms or changes that you think and hope this book will advance?
Curt Bradley: Thank you for that question. I do have, I think, some takeaways beyond the accounts that I give in the book that I hope people will at least consider. First let me say a word about Frankfurter since you raised him. We haven’t really mentioned him in the discussion so far. To the extent I am using the phrase “historical gloss,” it’s partly borrowed from him. In the Youngstown case, which is about Truman’s seizure of the steel factories at the outset of the Korean War. And the Supreme Court very famously held against the president, and it’s one of the most famous decisions actually trying to stand up against a president abusing their authority. There are a number of famous opinions in the case, but Frankfurter’s opinion begins by saying it is just not enough to make the decision here based on the text of the [00:50:00] Constitution. And he recognizes much of these issues have been worked out over time, and he’s is famous for saying that it’s an inadmissibly narrow view of our Constitution to “forget the gloss that practice and time have written upon it.” Exactly the kind of argument from the book. I like that phrase and it’s part of the reason for the title of the book.
And I should note, that was a case in the early 1950s, the Supreme Court in a number of major foreign affairs and separation of powers cases since then have quoted that sentence from Frankfurter with approval. It does seem to be something that even both the liberal and conservative justices to a fair degree can agree upon. So I think this is a style of reasoning that really the Supreme Court has picked up on.
Now, in terms of the takeaways, one is kind of close to my domain, which is I think among the people who teach constitutional law, who study it: we have been way too focused on the Supreme Court of the United States. It happens to me too. We just [00:51:00] started another Supreme Court term. Everybody gets excited, “What’s on their docket?” They’re not deciding a lot of cases, by the way. Maybe we’re lucky if they issue about 60 opinions a year. A lot of those are not blockbuster cases.
Most constitutional law in the United States is not done in the Supreme Court of the United States. And obviously foreign affairs is an especially dramatic example of that. Most of our constitutional law of foreign affairs is not worked out through litigation or the Supreme Court. We need to study history. We need to know about historical turning points and events and practices to really understand the nature of our constitutional law. And I think we could do a better job of orienting students away from the Court sometimes, to other parts of the government where law is made.
In terms of takeaways for other actors, here’s a takeaway for the courts themselves. Which is, if you think that there often is a usefulness of the branches of government [00:52:00] bargaining over time, adapting themselves to change conditions, and having this kind of flexibility, that’s actually an argument for the courts to not intervene too frequently. One reason we don’t have that kind of style of reasoning in some areas of constitutional law is the courts just keep coming in. Everybody organizes around the opinion and they get unhappy if the court does a new direction or doesn’t do a new direction. Foreign affairs hasn’t been like that. It hasn’t had court decisions that so changed the landscape that we don’t see practice develop anymore. The government’s able to continue to kind of have that flexibility.
So it’s an argument for judicial caution before intervening in these allocation/separation of powers disputes. And then when sometimes they have to come in – I think they had to come into the Youngstown case and some others – it’s an argument for being what some people have called minimalistic. That is just deciding what you need to decide to resolve that dispute and not opining about all sorts of other aspects of power. You mentioned the Zivotofsky [00:53:00] case earlier. One of the many problems with that opinion in the case was it’s a very broad opinion about exclusive presidential power with some broad rhetoric about the functional advantages of the president and the like. Well, no shock here. That was 2015, the executive branch has now already used Zivotofsky to make all sorts of other claims about why it can disregard statutes. Congress is now worse off than ever because the Supreme Court got involved in that case, at least in the broad way that it did.
So one of the lessons of the book is for the courts to try to keep a lower profile for these practice-based disputes and let the political branches, to a fair degree, continue to battle it out because they’re likely not to produce perfect outcomes. But still likely to do a better job than courts are often able to do given where they’re situated.
So that’s a call for less judicial review to some extent than we normally see in American life.
Elena Chachko: I think many would echo that call these days.
Thank [00:54:00] you very much, Curt Bradley. And I once again encourage all of our listeners to give Historical Gloss in Foreign Affairs a read. It’s now available for purchase wherever you get your books. This is Elena Chachko, and please tune in to listen to the next episode of Borderlines with regular host Katerina Linos rejoining us.
Thank you.