John Yoo confronts the global New Deal

John Yoo has a new essay out exploring globalization and its impact on the U.S. constitution. Suffice to say that he worries a lot about the compatability of new (and, on his telling, newly influential) international instruments with U.S. constitutionalism. In making his case, he voices a concern that I think runs fairly deep in conservative circles: that the American experience of expanding federal government power should make us wary of delegating power to international institutions:

[T]he new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law. 

The invocation of the New Deal and an ever more powerful federal government won’t win Yoo any converts among liberal-leaning folk (indeed the analogy to the New Deal might make liberals more favorable to the UN than when they started reading). But Yoo is not writing for them. He’s talking to conservatives who do worry about the reach of federal power and who are already skeptical about international institutions.  But even working from inside that worldview, how strong is his argument? There are at least two problems, the first historical and the second structural.

If Yoo is right that international institutions are as inclined to accrue power as the federal government, shouldn’t we see by now a set of much more powerful global institutions? The institutions established after the Second World War now have more than sixty years under their belts. Instead of gradually expanding their power, several key international institutions never acquired the power they were designed to have. The UN Charter imagined a Security Council equipped with its own forces and ready to vanquish threats at a moment’s notice (it never got its standing force); the International Court of Justice was designed to be a one-stop shop for resolving the world’s legal disputes (only a third of states now accept its jurisdiction, leaving it marginalized on many important disputes);  the International Monetary Fund was supposed to play a key role in managing exchange rates (it doesn’t).  The world’s experience with international organizations in the last sixty years simply does not support the notion that they inexorably acquire power.

That leads to the structural problem with Yoo’s analogy. In the U.S. political context, the Supreme Court was ultimately the agent that blessed expansions of federal power and smoothed the way for executive and legislative incursions onto the terrain of the states. There is no equivalent on the international stage. The International Court of Justice, which might have played that role, has severe jurisdictional limitations that preclude it from engineering the kinds of sovereignty shifts that Yoo believes are underway. The International Criminal Court, which is deeply offensive to many conservatives, has a very limited mandate and no enforcement power. Oddly enough, it is the international institution to which conservatives least object–the World Trade Organization–that might be most capable of attacking national sovereignty in a systematic way. Its appellate body issues binding rulings on the wide range of issues that intersect with trade law. But even the WTO lacks the chops to impose its will on powerful countries like the United States; ultimately, its only enforcement power is the ability to authorize retaliatory trade restrictions by aggreived states.  

As one canvasses the global governance landscape, it becomes apparent that the only international institution to which Yoo’s New Deal analogy really applies is the European Union, which has accrued more reach and power over the years. Bureaucrats at the European Commission, judges at the European Court of Justice and, most importantly, willing national leaders have combined to engineer a dramatic transfer of sovereignty. And if it doesn’t lead to the fracturing of the project, the Eurozone crisis may soon usher in even more remarkable level of supranational control over national policy. The fact that those measures are even being contemplated is a powerful conservative  argument for caution in delegating power upward.

But a perceived dynamic that really only applies to the EU should not color the American conservative view of international organizations. For all sorts of reasons, the EU experience is sui generis. Despite the best efforts of world federalists, most international organizations remain modest in scope, limited in power, and marginal in their influence. Major states, not international bureaucrats, still exercise decisive influence over them. These organizations move slowly and resist radical change. In their modest, limited way, they are useful–and particularly to powerful states. Conservatives should take another look.