Congress’s International Legal Discourse

Kevin L. Cope*

Despite Congress’s important role in enforcing U.S. international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that, in legislative debates over bills whose enactment arguably triggers international law violations, members of Congress urge international law compliance relatively often, using rhetorical framing devices similar to those that members use for comparable constitutionally problematic bills. The arguments are overwhelmingly supportive of international law and often phrased in legalistic terms. The evidence suggests, moreover, that such international law invocation may be partially motivated by political self-interest. These findings, together with existing literature and qualitative evidence from former policymakers, imply that members of Congress may be incentivized to take public pro-international law positions by international law-minded executive officials. In this way, the executive may use the legislature to reinforce the national commitment to international law obligations. Through this interbranch bargaining, the president might use congressional international law discourse to boost the country’s international credibility and strengthen her office’s own hand in making and enforcing future commitments.

* Michigan Grotius Research Scholar, University of Michigan Law School; Faculty Lecturer, University of Virginia School of Law; Ph.D., Political Science, expected 2019, University of Michigan. I thank Kristina Daugirdas, Michael Gilbert, Andrew Hayashi, David Martin, David Sloss, and Mila Versteeg for valuable comments on earlier drafts. The Article also benefited from suggestions by Curtis Bradley, John Coyle, Harold Koh, Mathew McCubbins, Saikrishna Prakash, Naomi Schoenbaum, Ryan Scoville, Paul Stephan, David Stewart, and Carlos Vázquez. I received valuable feedback from workshop participants at University of Virginia School of Law in August 2013, Northwestern University School of Law in October 2013, Washington and Lee University School of Law in October 2013, the annual ASIL International Law in Domestic Courts interest group meeting at Yale Law School in December 2013, Georgetown University Law Center in August 2014, the ASIL Midyear Meeting in November 2014, and University of Michigan Law School in March 2015. I also thank my excellent team of research assistants, including Christopher Cooke, Yisha Ding, Céline Janssenswillen, Jasmine Johnson, John Lynch, Heather Moore, Roshanak Mirhosseini, Roger Polack, Ryan Schiedermayer, Bette Shifman, Caitlin Valiulis, Masjo Ward, Emily Wong, and Wenning Xu, for assistance with data collection.

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