Faculty Bibliography

The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments. The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional– executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them. Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways. After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.

National security review of corporate transactions has long been a relatively sleepy corner of regulatory policy. But as governments merge economic and national security, national security reviews are expanding in frequency and scope, causing numerous deals to be renegotiated or even blocked. This expansion of national security’s impact on corporate transactions—which this Essay calls “national security creep”—raises theoretical questions in both national security and contract law and has important practical implications for dealmaking and the economy. This Essay makes several contributions. First, it provides an updated account of the national security review process for investments, which has changed substantially in recent years with the expansion of the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS), the global diffusion of CFIUS-like processes, and U.S. moves to regulate outbound investment. Second, this Essay considers the theoretical impact of national security creep. It argues that the executive branch’s increasingly broad claims about what constitutes national security may cause judges to alter long-standing deference to the executive on national security issues, with implications for deal parties, the executive, and scholars who debate whether courts should treat national security as “exceptional.” It also argues that CFIUS’s temporally tentacular review authority upends well-understood contract theory that considers regulatory review to be an ex ante contract design cost. Finally, this Essay considers practical implications of national security creep and concludes with suggestions for how the executive, courts, Congress, and scholars should approach national security creep going forward.

Attribution of cyberattacks requires identifying those responsible for bad acts, prominently including states. To guard against baseless or false attributions, this Article argues that states should establish an international law requirement that public attributions of state-sponsored cyberattacks must include sufficient evidence to enable cross-checking or corroboration of the accusations.