Faculty Bibliography

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly when a statutory authorization relates to an area of independent presidential power. The President has more independent power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have unlimited power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies several ways in which independent presidential power is relevant to the nondelegation doctrine, which we call situations of “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. The Article concludes by considering the relevance of this analysis to the application of the “major questions doctrine,” and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

Conventional wisdom says that “authorizations for the use of military force” (AUMFs) are the key congressional engagement with the forever war. Since Congress has not refreshed the relevant AUMFs in over two decades, the AUMF focus makes it seem like Congress is disengaged from the conduct of the forever war, or perhaps that Congress has inappropriately delegated war powers to the President. That focus also makes it seem like repealing or modifying the AUMFs is the key to ending the forever war, or at least to Congress recapturing or reasserting its war powers, or to disciplining presidential militarism. This paper argues that from a separation of powers perspective, the AUMF focus is misleading to the point of wrong. AUMFs are not the only or even the main congressional engagement with the forever war, even though the executive branch and scholars focus on those sources. Congress through its formal votes and through the continuous actions of certain committees has long been heavily involved in managing practically every element of U.S. forever-warfighting, through a thick and persistent array of appropriations, authorizations beyond the well-known AUMFs, reporting requirements, ongoing consultation, and extensive ex ante and ex post oversight. Congress is formally very much on board for the President’s conduct of the forever war, and is sometimes more hawkish than the President. This preliminary draft sketches these points and raises implications and questions.

When does the Dormant Commerce Clause preclude states from regulating internet activity--whether through state libel law or invasion of privacy law; through state laws requiring websites to accommodate disabled users (for instance, by providing closed captioning); through state bans on discriminating based on sexual orientation, religion, or criminal record; or through state laws that ban social media platforms from discriminating based on the viewpoint of users' speech? This Article argues that the constitutionality of such state regulation should generally turn on the feasability of geolocation--the extent to which websites or other internet services can determine, reliably and inexpensively, which states users are coming from so that the sites can then apply the proper state law to each user (or, if need be, choose not to allow access to users from certain states). In recent years, geolocation has become feasible and is routinely used by major websites for ordinary business purposes. There is therefore more constitutional room for state regulation of internet services, including social media platforms, than often believed.

Jack Goldsmith explains the risks associated with pursuing criminal prosecutions against high-profile political figures.

What recent successful governance reforms teach about future reforms of the presidency.

Part 1 of a three-part series on oral arguments in Turkiye Halk Bankasi A.S. v. United States, a case that raises the question whether the U.S. government can criminally prosecute corporations owned by foreign states.

In State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation, we argued that the validity of state laws regulating internet activity should turn in part on the feasability of geolocation--the extent to which online services can reliably determine the state in which a user is located so that they can comply with the law of that state. The article was published before the Supreme Court decided National Pork Producers Council v. Ross, an important Dormant Commerce Clause (DCC) decision, in May 2023. This brief essay explains how Ross supports our central arguments.

Congress just enacted the most important reform of the rules governing the transparency of binding international agreements in the past half-century, and for the first time included nonbinding agreements.

Before his abuses of power were exposed, he was celebrated as a scourge of Nazis, Communists, and subversives.

On October 11, 2022, the Supreme Court will hear a case, National Pork Producers Council v. Ross, that asks whether California can, consistent with the Dormant Commerce Clause (DCC), ban the sale of pork meat in the state that is not sourced from a pig raised humanely by California standards. The petitioners in Ross claim that the California animal welfare law violates the extraterritoriality prong of the DCC because it has a huge impact on the pork production processes and costs in other states, and violates Pike balancing as well. Ross could be one of the most consequential DCC cases in decades. It squarely raises both the continuing validity of the contested extraterritoriality doctrine, and the issue of judicial competence to do Pike balancing. And it raises these issues in an unusual doctrinal context. First, Ross asks whether and how the so-called “California effect” implicates the DCC. The California effect occurs when a large state’s relatively strict regulation becomes the de facto standard in many smaller states because it is cheaper for producers in the smaller states to comply with the regulation than it is to withdraw from the large market or devise multiple production lines. The result can be that consumers in smaller states pay more for a product due to producers’ responses to the large-state regulation. The validity of laws with this effect has never been directly addressed in Supreme Court DCC jurisprudence. Second, Ross raises the issue whether California can regulate the sale of a product (pork) not based on the characteristics or quality of the product, but rather based on how it is produced in other jurisdictions. Such “process-based regulation” of goods produced in another jurisdiction raises concerns that have been much-discussed and litigated under international trade law, but not in the Court’s DCC jurisprudence. These novel issues come before a Court in transition. The DCC has been under attack from some members of the Court—especially Justices Scalia and Thomas—for a long time. In recent years four new Justices have joined the Court. Justice Gorsuch questioned the independent validity of the extraterritoriality prong in the court of appeals and has filed one opinion in the Supreme Court that evinces skepticism toward a robust reading of the DCC. Justices Kavanaugh, Barrett and Jackson did not rule on a DCC issue in the lower courts and have not yet cast a meaningful vote in a DCC case at the Supreme Court. This essay sets forth our thoughts on Ross. As in a previous article, our thinking is influenced by Supreme Court doctrine and by the economics of state regulation of transborder transactions. We use economics to understand the DCC because the primary justification for the DCC is an efficiency criterion: to ensure free trade and associated benefits in interstate transactions. We, like others, including many on the Court, think that the efficiency criterion provides the best normative account of the DCC, and provides a sound way to analyze novel problems that arise under the DCC. Our conclusions, in a nutshell, are as follows: (1) The California animal welfare law raises potential efficiency concerns from a national perspective due to the costs it might impose in other states; (2) whether the law is actually inefficient in the aggregate (and thus violates the DCC) is a complicated empirical question; (3) absent a sea change in their approach DCC cases, federal courts lack the resources and tools to sort out this empirical question, whether under the rubric of Pike balancing or extraterritoriality; (4) the process-based element of the California law raises slippery-slope concerns to which the Court should be attentive, but which the Court currently lacks doctrinal tools to resolve; (5) international trade law has addressed process-based regulations for decades, and has come to an uneasy acceptance of them, perhaps in part because the slippery-slope concerns have not materialized; and (6) the Court should consider more targeted and less-demanding doctrinal tools than Pike balancing and extraterritoriality, drawn from international trade law, to address DCC concerns about the California law.

The Article II treaty process has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding international agreements. Despite their prevalence and importance, nonbinding international agreements are not currently subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they are not centrally monitored or collected within the executive branch, and they are not systematically reported to Congress or disclosed to the public.This Article focuses on three of the most important types of nonbinding international agreements concluded by the United States: (1) high-level formal agreements; (2) joint statements and communiques; and (3) nonbinding agreements concluded by administrative agencies. After describing these categories and their history, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than 2100 nonbinding agreements. Based on this study, the Article argues that many of the concerns that prompted Congress to regulate binding executive agreements starting in the 1970s also apply to nonbinding agreements. Finally, drawing in part on insights obtained from a comparative assessment of the practices and reform discussions taking place in other countries, the Article suggests legal changes designed to enhance coordination and accountability.

A new bill curbing presidential powers addresses problems that arise during Republican and Democratic presidencies. Members of Congress in both parties should embrace its reforms.

At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general who now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Governmental Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them and assesses the others.

Since the nineteenth century, presidents have largely relied on recommendations from the Office of the Pardon Attorney when granting pardons and commutations. The current process for making clemency recommendations usually takes more than a year. It is governed by Justice Department regulations that outline the factors for consideration of petitions and set forth multiple stages of review. While reliance on pardon attorney recommendations has long been the norm, presidents are not required to use this process. Presidents before Donald Trump had circumvented the pardon attorney. However, no prior president had made the evasion of this process the norm. This article details what appears to be the pardon attorney’s rare involvement in President Trump’s clemency grants.

If he does, he must work with Congress and go well beyond narrowing old permission slips for conflict.

The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as “executive agreements,” are made by the President without submitting them to the Senate, or to Congress, at all. Congress has responded to the rise of executive agreements by imposing a transparency regime — requiring that all the binding executive agreements be reported to Congress and that important agreements be published for the public to see. Until now, however, there has been no systematic assessment of how well the transparency regime has been working. This Article seeks to fill that gap. Through a Freedom of Information Act lawsuit, we obtained thousands of documents relating to the agreements reported to Congress and the legal authority on which the Executive Branch has relied for these agreements. Together with a series of interviews with lawyers directly involved in the process, this new information has given us an unprecedented look inside the system of concluding, publicizing, and reporting executive agreements. For the first time, we can describe how the system for making and scrutinizing executive agreements actually works — and when and how it fails to work. The overall picture that emerges is one of dysfunction and non-accountability. In brief: the Executive Branch does not come close to meeting its reporting duties; the entire process is opaque to everyone involved, including Executive Branch officials and congressional staffers; and Congress is failing in its oversight role. The “system” is badly in need of repair if we are going to preserve the integrity and legality of the United States’ primary means of making international law. This Article proposes a number of reforms, most of which should be normatively uncontroversial.

In After Trump: Reconstructing the Presidency, Bob Bauer and Jack Goldsmith provide a comprehensive roadmap for reform of the presidency in the post-Trump era—whether that comes in four months or four years.In fourteen chapters they offer more than fifty concrete proposals concerning presidential conflicts of interest, foreign influence on elections, pardon power abuse, assaults on the press, law enforcement independence, Special Counsel procedures, FBI investigations of presidents and presidential campaigns, the role of the White House Counsel, war powers, control of nuclear weapons, executive branch vacancies, domestic emergency powers, how one administration should examine possible crimes by the president of a prior administration, and more. Each set of reform proposals is preceded by rich descriptions of relevant presidential history, and relevant background law and norms, that place the proposed reforms in context. All of the proposals are prefaced by a chapter that explains how Trump--and, in some cases, his predecessors--conducted the presidency in ways that justify these reforms.After Trump will thus be essential reading for the coming debate on how to reconstruct the laws and norms that constitute and govern the world’s most powerful office.It’s hard to imagine two better co-authors for the task. Both served in senior executive branch positions—in the administrations of Barack Obama and George W. Bush, respectively—and have written widely on the presidency.Bob Bauer served from 2010-2011 as White House Counsel to President Barack Obama, who in 2013 named Bauer to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of its Legislative and Regulatory Process Clinic.Jack Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003. He is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution.Together, in this book, they set the terms for the national discussion to come about the presidency, its powers, and its limits.

The number, frequency, and seriousness of leaks of classified information have grown sharply in the last two decades. The government has reacted to these leaks with several initiatives to stop or deter them. Journalists and their allies, in turn, have complained that these initiatives have narrowed press freedoms and damaged the First Amendment. This essay argues that the journalists are wrong. The last two decades have witnessed an unprecedented growth in press freedoms in the national security context, and greater protection for journalists in their reporting of national security secrets. The indictment of Julian Assange is no violation of this norm, and in many ways confirms it.

As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration and questioning its misuse of surveillance and other powers, that he began to reconsider his stepfather, and to understand Hoffa’s true legacy. In Hoffa’s Shadow tells the moving story of how Goldsmith reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it. Along the way, Goldsmith explores Hoffa’s rise and fall and why the golden age of blue-collar America came to an end, while also casting new light on the century-old surveillance state, the architects of Hoffa’s disappearance, and the heartrending complexities of love and loyalty.

This supplement brings the principal text current with recent developments in the law.

This essay reviews Harold Hongju Koh, The Trump Administration and International Law (2018). Its main conclusion is that Koh overstates the influence of transnational legal process in checking President Donald Trump's impact the U.S. stance toward international law and institutions.

This Response to Andrew Woods makes two points. First, building on one of Woods’s claims, and drawing on the work of Milton Mueller, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it raises questions about the efficacy of Woods’s normative theory of judicial comity.

This essay seeks to explain why the United States is struggling to deal with the “soft” cyberoperations that have been so prevalent in recent years: cyberespionage and cybertheft, often followed by strategic publication; information operations and propaganda; and relatively low-level cyber disruptions such as denial-of-service and ransomware attacks. The main explanation for the struggle is that constituent elements of U.S. society—a commitment to free speech, privacy, and the rule of law, innovative technology firms, relatively unregulated markets, and deep digital sophistication—create asymmetric weaknesses that foreign adversaries, especially authoritarian ones, can exploit. We do not claim that the disadvantages of digitalization for the United States outweigh the advantages, but we present reasons for pessimism.

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to: (a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law; (b) make increasingly consequential political commitments for the United States on practically any topic; (c) interpret these obligations and commitments; and (d) terminate or withdraw from these obligations and commitments. While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years. In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory or judicial apparatus to guide or review the exercise of presidential discretion in this context. This is true even though international law often plays a significant role in the U.S. legal system and has direct and indirect effects on U.S. institutions and persons. After presenting a descriptive account of the rise of presidential control over international law, the Article turns to normative issues. It argues that, although much of this practice has a plausible legal foundation, some recent presidential actions relating to international agreements, and some supportive claims made by commentators, are questionable in light of generally accepted principles relating to the separation of powers. It also explains why presidential control over international law should become significantly more transparent, and it considers the costs and benefits of additional accountability reforms.

This paper examines the widespread belief that the Trump administration’s attacks on international law and institutions are significantly harming the international legal order. Part I describes the actions Trump has taken. That is the relatively easy part. It is much harder to figure out the medium- and long-term impact of Trump’s actions. For the reasons offered in Part II, we think that in most respects it is still too early to tell. But we speculate that Trump’s biggest impact is likely to come as much from his verbal attacks on international law and institutions as from the material changes he has brought to them.

The article discusses issues involving U.S. President Donald Trump. The behavior of President Trump can have an impact on American democracy. Other information including the initial executive order on immigration, Russia investigation, and customs of civilian-military relations and the attempt to leverage popular admiration for the military into backing for his policies are also discussed.

The article discusses the investigation conducted by the U.S. Federal Bureau of Investigations (FBI) with its director James B. Comey on the involvement of Russiaa in the 2016 U.S. presidential elections.