The Volokh Conspiracy

A comment to my reply post made me realize that I accidentally omitted the following paragraph in that post.

 A number of responses to my third post on executive primacy and domestic law argued that in fact in domestic affairs the executive is not unbound. These responses noted some recent examples where President Obama’s agenda was thwarted by Congress. However, we did not argue that Congress has no power at all, or that the president is an actual dictator! I mentioned, for example, that Congress defeated Obama’s attempt to secure a climate bill, which required Obama to (only incompletely) circumvent Congress using his regulatory powers. So is the glass half full or half empty? Answering this question raises a significant methodological problem: it is virtually impossible to tell when the president respects Congress’s authority out of sense of legal obligation, and when the president is in fact responding to the same political factors that motivate Congress to block his program—in other words, politics is the omitted variable. But history provides a useful perspective. There is a long-term trajectory, in this country and many other democracies, in the direction of executive primacy in domestic as well as foreign affairs, which one can identify only by comparing present to past. No one denies that the New Deal regulatory system gave presidents immense powers that did not exist prior to its creation, and that this system has only grown over the years. The financial regulation and health care laws are only the latest in a long series of delegations from Congress to the president, and they confirm that long-term trends have not been reversed in the Obama administration. We are talking about a continuous institutional development that reaches back almost a century and today is entrenched. It is time for legal thought to make its peace with it.

 In this, my last post on The Executive Unbound, I had intended to respond to as many comments as I could, but it turns out that there is a single theme of many of the comments, and I will focus on it with apologies to others whom I neglect. Before I continue, let me thank Eugene for permitting me to guest-blog on my new book. (Let me also respond to commentators who believed that I was trying to criticize the Obama administration or defend the Bush administration or perhaps vice versa. That was not my intention: while my arguments have implications for evaluating both administrations, those implications are complex, and discussion of them is best left for another forum.)

 The most widespread reaction is that Vermeule and I misperceive the Constitution. The original document did not establish a system of executive primacy but a system of checks and balances where the legislature was first among equals. A system of executive primacy could be put into place only through constitutional amendment that complies with the procedures set out in Article V, and no such amendments exist. If our current political system no longer complies with the Constitution, then it needs to be reformed forthwith.

 At a minimum, if only to achieve descriptive clarity, we need to distinguish the original design and the actual operations of the political system as it currently exists. Scholars tend to use the word “constitution” to refer to both phenomena, no doubt with the British example in the back of their mind—no one doubts that the British constitution has “evolved” over the centuries, and so there is no debate about whether the current British constitution is different from the “original” version, if an original version can even be identified. In the United States, the theory of originalism throws this type of thinking into disarray. Originalists (or some of them) argue that only one Constitution exists—the original written version plus amendments—and that if our current system departs from the original meanings, those departures are simply unconstitutional.

 The words used don’t matter much. The problem for originalists is the next step. One can argue that the current system is illegitimate and should be reformed because it violates the letter and spirit of the original understanding, but that argument was available to critics of executive power from the beginning yet made no headway against forces that favored constitutional (or, if you want, institutional) development in the direction of executive primacy. Those forces were simply too strong. Today, originalists—or at least those who enjoy influence such as judges—occupy themselves with the Bill of Rights, and, with the exception of the second amendment, the whole tenor of the movement has been oriented toward eliminating the various civil-liberty related rights manufactured during the last half century. Another group of people—not all of them originalists—want to dismantle New Deal regulatory institutions but this effort has utterly failed.

 There is no constituency for reforming the executive. That is a simple political fact about the United States, and therefore no one with real influence is willing to follow the necessary implications of originalism for executive power. Why not? Because Americans want a strong president. They want a strong president to defend the United States from terrorists, to deliver humanitarian interventions, to respond to natural disasters like Katrina, to resolve financial crises, to combat climate change, to fix the deficit. The call for leadership by a strong executive in response to the crisis du jour is reflexive. When a crisis strikes, and the government does not respond adequately, everyone complains that the president has failed to display leadership. This type of response is so reflexive that it is applied even to events that occur outside the United States.  Thus, a few days ago the New York Times attributed Japan’s travails to “the absence of a strong leader capable of rallying the nation.” Everyone understands the theoretical risks of a powerful executive—that was the now completely forgotten theme of the Bush administration—but, as a matter of mainstream thinking at least, those risks are worth taking.

 If nothing else, I want to convince you that arguing that we should return to the original Madisonian design is tilting at windmills—and will enjoy no more success than arguments that we should live in a night watchman state, return to the gold standard, create an agrarian republic, abolish private property, or set up a benevolent world government. All of these arguments are on the fringes—not because they violate the rules of logic but because they have no constituency—and that is where the Madisonian argument belongs as well.

 I don’t know what to say to people who continue to insist that because executive primacy violates the (original) Constitution, something must be done about it. Arguing that our current system of government is unconstitutional is like arguing that the original Constitution was unconstitutional because it violated the amendment procedures of the Articles of Confederation. It is a logical argument that makes no difference in the real world because ultimately what matters is popular sentiment, and popular sentiment has acquiesced in constitutional change without regard to the rules established to control it.

 In my previous two posts, I discussed the executive’s prerogatives with respect to foreign policy and military intervention—hot topics today. But until recently, the hot topic was the Obama administration’s aggressive domestic policy, which culminated in the Dodd-Frank Act and the health care law. Skeptics of the thesis of executive primacy could point to these two statutes as evidence that Congress is alive and kicking. It seems obvious that President Obama could not have reformed American financial regulation and health care law without the cooperation of Congress. So in what sense is the executive primary or “imperial”?

 The answer is that, for both statutes, (1) the Obama administration, not Congress, initiated the legislative process and set the contours of debate; (2) the Obama administration, not Congress, is the face of the laws and will be held responsible for their success or failure; and, most important, (3) the statutes delegated massive authority to the executive—hundreds of rule-making mandates—so that the vast majority of policymaking decisions will be made by executive branch officials over the coming years and decades.

 Add to this the Obama administration’s use of regulatory agencies to implement climate regulation, having failed to secure congressional support for a climate bill. Presidents always prefer congressional support if only for the political boost, but when they fail to obtain it, they can fall back on the immense regulatory powers they already enjoy. In this case, Obama can fall back on existing environmental statutes and his control of the EPA and other agencies that regulate industries that affect climate change—and obtain much but not all of what he wanted from Congress. Yet another example is Obama’s (and before him, Bush’s) reliance on existing regulatory authorities to resolve the financial crisis. The government poured hundreds of billions of dollars into the credit markets even before Congress signed a blank check for hundreds of billions of dollars more. The Dodd-Frank law shuffles around these authorities, and expands them at the margins, but does not fundamentally change them.

 The two statutes follow a pattern of congressional delegation reaching back more than a century, and which created the modern administrative state at the apex of which is the executive. What is most notable about them is not that they reflect a congressional resurgence (they don’t); it is that they decisively mark the recovery of the regulatory state after a three decade long ideological quasi-retreat. The debate about the size of the federal government will continue. But the debate about limited government is over. Both sides of the political spectrum have acquiesced in a powerful executive weakly constrained by Congress and the courts; the only live political question is what the executive should do with all that power. For more, see The Executive Unbound.

In my last post, I quoted Andrew Sullivan’s provocative claim that “Obama has now taken [the imperial presidency] to a greater height than even Bush.” Could that claim be right? I assume that Sullivan means that not even Bush went to war without congressional authorization, whereas Obama has shown himself willing to do so, but what of signing statements, wiretapping, torture, secrecy, and the many other items in the long bill of particulars against Bush?

The answer is that from the standpoint of executive power Obama and Bush are not much different in the main, and it is hard to compare the details. Bush acted inconsistently with some statutes, and his underlings propounded aggressive theories of presidential power which the Obama administration has abandoned, but the practical significance of these differences is limited. Bush got the authorities he needed by demanding them from Congress, and Congress accommodated him with the Patriot Act, the Protect America Act, the Detainee Treatment Act, the Military Commissions Act, and two AUMFs. Thanks to Bush, Obama enjoys the legal authorities he needs to conduct the conflict with Al Qaida—and so, until our next crisis, we don’t know how Obama would have acted under similar circumstances. The Obama lawyers are certainly less inclined to bloviate than the Bush lawyers were but again where it counts—have Obama’s lawyers ever stopped him from going beyond the edge of legality?—we have little information and some reason for skepticism. Obama has vigorously expanded the drone program, taken the war into Pakistan, robustly defended his right to kill American citizens abroad, and opposed litigation that could expose secrets about the treatment of detainees. What is most interesting is that there is currently little comment on the left about Obama’s extensive uses of executive power. There are some outliers who were celebrated during the Bush administration for their attacks on the presidency and who have persisted in their views now that Obama is in office, but who today are ignored. The only public apology from the left for the Obama administration’s executive branch jurisprudence that I am familiar with is this one by David Cole, who starts off vigorously enough but ultimately falls back on legalisms and ends up undercutting his defense in the second half of the article, where he laments Obama’s dependence on secrecy, which raises the question how we know what to make of Obama’s actions as an executive if we don’t know what they are. And that was before the Libya intervention.

Sullivan exaggerates but gets at the essential truth, which is that the imperial presidency has been institutionalized, as Adrian Vermeule and I argue in The Executive Unbound. On Congress’ tomb should be inscribed this epitaph, courtesy of a democratic congressman: “They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress.” As for the Republicans, with some trivial exceptions, they range from complaining that Obama did not communicate with them (nothing about consultation let alone a vote of some sort) to complaining that he did not act aggressively enough!

 Congress’ reaction to President Obama’s decision to launch a military intervention in Libya has been supine even by Congress’ usual standards. Congress vigorously debated and refused to authorize President Clinton’s military intervention in Kosovo in 1999 (Clinton intervened anyway). Congress debated and authorized the attacks on Afghanistan in 2001 and Iraq in 2003. Yet Congress has been mostly silent about the intervention in Libya. Why?

 President Obama is following a long line of precedents in which the executive lanched a foreign war without congressional authorization. The president disavowed these precedents during his campaign; he may or may not attempt to distinguish his campaign statement by invoking the UN security council resolution authorizing the attack, as Truman did for Korea. But this legal wrangling is all superstructure. Congress is disabled in numerous ways from making practical contributions to a war effort. It cannot prevent the president from starting a war, and it is nearly impossible to halt an ongoing war. Wars, then, simply become an opportunity for members of Congress to stake their reputations as hawks or doves for the sake of future elections.

 The Libya intervention provides an instructive example of the disabilities hampering Congress. Events in Libya unfolded with extraordinary rapidity, while the proper American stance depended on numerous constantly changing factors—the security situation in Libya, the attitudes of neighboring states and their populations, and the positions of foreign powers such as the UK, France, China, and Russia. A major source of complexity is that these various attitudes and positions depended in part on what other people thought the United States would do. The rebels might hold out if they believed that the United States would intervene, and by holding out possibly prevail without American intervention. The UK and France might sound the tocsins of war only as long as they believed that the United States would support them if they obtained the acquiescence of other countries, which in turn would care about American attitudes as well. As these various actors calculated their moves, they sent out feelers to the U.S. executive and received responses—promises, hints, suggestions. Eventually, international opinion coalesced and military intervention followed.

 Congress could not play a role. Lacking a leader who could commit it to a course of action, Congress could not make promises. Lacking a single mouthpiece, it could not be consulted. Foreign countries naturally turned to the president. Nor is it realistic for Congress to formally ratify the president’s decision if formal ratification involves the possibility of rejection. Then the next time that the United States is involved in a foreign policy crisis, other countries won’t know who to speak to, and who to believe.

 We live in a system of executive primacy, as Adrian Vermeule and I have argued in our new book, The Executive Unbound: After the Madisonian Republic. It is a consequence of natural institutional developments and necessities. The contrary view, which was written into the U.S. Constitution, could survive only as long as the United States was protected by two oceans from foreign threats and could focus on territorial expansion within a continent populated only by Indians, who were never a major threat—and even then it was honored more in the breach than in the observance. Those who are skeptical about the Libya intervention should address their policy arguments to the executive, and stop complaining that Congress has not authorized the war. Here is Jack Goldsmith arguing that Obama will invoke the UN Security Council resolution as his legal justification (why this is necessary after Clinton’s Kosovo intervention, which had no such resolution, is not explained); here is Andrew Sullivan arguing that Congress should do something, anything (“A congressional vote is also important to rein in the imperial presidency that Obama has now taken to a greater height then even Bush.”); and here is Ilya Somin’s post on the topic yesterday describing the protests of “several” (nine!) members of Congress.

I’m signing off from the Volokh Conspiracy so that I will have time to pursue other projects.  Thanks to Eugene for inviting me to blog with him, to the rest of the gang for putting up with me, and to readers for their frequently interesting and only occasionally uncharitable and very rarely egregious and defamatory comments.  Eugene has kindly offered to let me post from time to time but I have asked him to take down my name in the hope that it will eliminate the otherwise difficult-to-break (for me) psychological compulsion to maintain a stream or at least trickle of posts.  I leave you with some links to my recent academic work, which I had hoped to blog about but never found the time to do so.

Economic Foundations of the Law of the Sea (with Alan Sykes).  All in all, the Law of the Sea treaty seems reasonable, but conservative critics are right that the deep sea mining provisions are silly.  But don’t let the best be the enemy of the good, etc.

Against Feasibility Analysis (with Jonathan Masur).  A popular alternative to cost-benefit analysis does not withstand scrutiny.

ProCD v. Zeidenberg and Cognitive Overload in Contractual Bargaining.  Judge Easterbrook’s infamous opinion is a masterpiece of realist jurisprudence.

The Rights of Migrants: An Optimal Contract Framework (with Adam Cox).  Imagine that a country is like an employer, and a potential migrant is like a prospective employee.  Then you can exploit a great deal of economic wisdom on optimal contracting, for the purpose of understanding immigration law.  An unplowed field for aspiring scholars.

Here are some papers that I will soon post on SSRN.  If they interest you, keep an eye out for them over the next month:

What Do Federal District Judges Want?: An Analysis of Publications, Citations, and Reversals (with Steve Choi and Mitu Gulati).  Conventional (academic) wisdom holds that (1) appellate judges are influenced by ideology; (2) trial judges are not influenced by ideology; and (3) the affirmance rate of trial judges is very high.  Are these propositions consistent?  No!, with empirical evidence.

Subconstitutionalism (with Tom Ginsburg).  People talk all the time about national constitutions, including federalist structures in national constitutions, and about the constitutions of states, but rarely about how national constitutions influence the constitutions of states.  We fill this gap, using an agency model and a (strong) assumption that national constitution reduces agency costs for the state population, implying that state constitutions should be weaker than national constitutions.

Universal Exceptionalism in International Law (with Anu Bradford) examines the claim that the United States has an “exceptionalist” foreign policy, and argues that in fact all great powers (China, the EU, the Soviet Union in the past) have “exceptionalist” foreign policies—in the sense that they seek to mold international law to their interests.

Foreign Affairs Legalism: A Critique (with Daniel Abebe) criticizes modern foreign relations law scholarship for putting excessive faith in courts and legal process.

Finally, two forthcoming books.

Law and Happiness (with Cass Sunstein) collects papers from a recent conference examining the implications of happiness research for legal scholarship.

Climate Change Justice (with David Weisbach) argues for a minimalist climate treaty—one that addresses global warming but does not redistribute wealth or attempt to resolve other claims of justice.

Comments, as always, welcome!

The Book is a new online venture founded by Leon Wieseltier, the longtime editor of the literary section of the New Republic.  The New Republic has always been the top place for book reviews in my opinion—less ideologically predictable than the New York Review of Books and the London Review of Books, less eccentric than TLS, and (vastly) more sophisticated than the Times Book Review.  I hope The Book carries on this tradition.  Here is its agenda, written by Isaac Chotiner, its executive editor.  I have a review in the first “issue” (?—what is the correct word here?)—on a political scientist’s defense of Justice Kennedy.

Many of us said during the days of the Bush administration that restrictions on civil liberties motivated by the conflict with Al Qaeda would be maintained during any subsequent administration, whether Democratic or Republican, as long as the terrorist threat remained.  This prediction has been amply confirmed.  The most recent example is the implementation of an explicit profiling program for airline passengers.  The ACLU aside, there has not been much criticism of this initiative.  (Maybe because some of the most prominent critics of the Bush administration’s counterterror policies are now members of the Obama administration.)

The persistence of policies across ideologically divided administrations is good evidence that those policies are now mainstream rather than partisan and ideological.  Of course, many people will continue to disagree with them, just as many people continue to object to a standing army and a central bank; but these people are now officially on the fringes.  There will also continue to be arguments about interrogation practices and the like, but a wide range of Bush administration policies—indefinite detention without charges, trials by military commission, the use of military force against suspected terrorists in foreign countries, secrecy privileges that undermine litigation against government officials responsible for terrorism policies, profiling on the basis of nationality, and much else—are now politically entrenched.

This development seriously weakens some common arguments heard over the last years.  The major theory was that Americans support unnecessary or unjustified limitations on their liberties because of “panic,” exploited by elected officials for political gain.  If this theory is correct, then it applies to the Obama administration, which is acting just like the Bush administration—not quite as aggressively on the margin, but almost so.  But the theory was never a very good one.  If “fear” or “panic” is to be given any meaning, then it can’t be the case that Americans are in the same panic today as they were nine years ago.  Many policies have been modified, to all appearances reflecting rational consideration of their costs and benefits.  But the “fear” trope was always just a way to criticize policies without coming up with a plausible, empirically informed account of why the government was wrong to think that for any particular policy, the gains are greater than the costs.

The Al-Bihani case is another signpost on the road.  The striking dictum rejecting the view that “the war powers granted by the AUMF and other statutes are limited by the international laws of war” may not survive in the long run—this is in tension with Hamdi, as Judge Williams notes, although on the other hand the Supreme Court has hardly been consistent in requiring that international law be used to interpret statutes.  But the whole opinion, including the concurrences, is pregnant with a kind of resentment that courts are being asked to determine whether the U.S. army properly picked up an (alleged) enemy soldier on foreign territory—and one way or other, the courts are going to maintain their historical stance of deference to the political branches.  The anti-international law dictum is best interpreted as reflecting very sensible doubt that judges are in a good position to figure out how the laws of war should be applied in this quasi-war.  If the president wants to interpret them strictly, then nothing about the opinion prevents him from releasing Al-Bihani on laws-of-war grounds.  Of course, the president does not want to interpret them strictly, in yet another way advancing the legacy of the Bush administration.

(A possibility that seems to be on the table.)  Recall our friend, the AUMF:

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Al Qaeda is the relevant organization here, and so U.S. presidents can (indefinitely?) take military action against Al Qaeda, regardless of the country in which Al Qaeda members are located.  Note that a military strike against Al Qaeda in Yemen would be an act of war against Yemen unless Yemen consented to it (and it might), even though the government of Yemen itself does not support Al Qaeda (as far as anyone can tell) and indeed has been cooperating with the United States in the “war” (or “law enforcement action” or whatever it is) against Al Qaeda.  But Yemen, because of its own internal conflicts and the weakness of its government, may not be willing to take as aggressive action as the U.S. government wants it to—just like in Pakistan, where a similar war between the United States and Al Qaeda is taking place with only the quasi-consent of the Pakistani government.

But there is a further complication.  The relevant Al Qaeda in Yemen is called “Al Qaeda in the Arabian Peninsula.”  Is Al Qaeda in the Arabian Peninsula a branch of Al Qaeda, the organization that planned and executed the 9/11 attack and is therefore covered by the AUMF?  There are apparently contacts between the two Al Qaedas, but does that make them the same organization, or just two separate organizations that have—contacts?  What if the two Al Qaedas do not cooperate in any way; suppose that leaders of Al Qaeda in the Arabian Peninsula simply borrowed the name Al Qaeda, a kind of trademark violation intended to siphon off some of the reputational capital enjoyed by the original?  If so, the authority bestowed by the AUMF vanishes—poof!

All of this is moot if the U.S. government takes the precaution of blowing up its targets in Yemen rather than taking them prisoner.  As others on this blog have noted, the courts in their wisdom apply different standards in the two cases.  If Al Qaeda in the Arabian Peninsula is not a part of Al Qaeda, the president can draw on his constitutional authority for a military attack, as Reagan, Clinton, and other presidents have.  But if the U.S. military takes anyone prisoner, and the AUMF does not apply, then the outcome is anyone’s guess.  One suspects that for this reason any prisoners will be quietly turned over to the Yemenis, who would be happy to interrogate, intern, or dispatch a common enemy.

Once you eliminate the implausible corner solutions—the TSA undertakes body cavity searches of every passenger, or security screenings are abolished—a number of consequences follow.

1.  The TSA must randomize (play a “mixed strategy,” in game-theoretic parlance).  Otherwise, terrorists can predict some of its precautions and evade them.  The same principle explains why police vary patrol routes and road blocks.  A NYT article today makes clear that the TSA is self-consciously randomizing to keep terrorists off guard.

2.  At the social optimum, the number of successful terrorist attacks will be greater than zero.  It might be argued that we have had too few successful terrorist attacks over the last few years rather than too many.  The question is whether the implicit statistical valuation of life in TSA programs is too high.  I suspect that the answer is yes, as is generally the case with airline safety.

3.  Profiling is an effective strategy when, as here, terrorists come from a small group of (relatively) easily identifiable people.  One suspects that this explains Israel’s success.  But profiling places a large portion of the cost of deterrence on a small group, which makes some people morally uneasy.

4.  Once the implausible corner-solutions are ruled out, any security policy or threshold will seem arbitrary because you have to draw the line somewhere, which means that it will be easy to point to some permitted activity that is only slightly different from what is forbidden (for example, carrying on 100 ml of liquid rather than 101 ml).

5.  As for the “security theater” claim–

a.  If ordinary people are fooled into thinking that the TSA is doing more than it is really doing, then at least some potential terrorists will be fooled as well, and so will be deterred from engaging in airplane-terrorism.

b.  Ordinary people will also fly more often, which means that one of the goals of terrorists—to terrorize people so that they will pressure their government to make concessions to terrorists—will have failed.

This piece by Mark Lynas is well worth reading.

To those who would blame Obama and rich countries in general, know this: it was China’s representative who insisted that industrialised country targets, previously agreed as an 80% cut by 2050, be taken out of the deal. “Why can’t we even mention our own targets?” demanded a furious Angela Merkel. Australia’s prime minister, Kevin Rudd, was annoyed enough to bang his microphone. Brazil’s representative too pointed out the illogicality of China’s position. Why should rich countries not announce even this unilateral cut? The Chinese delegate said no, and I watched, aghast, as Merkel threw up her hands in despair and conceded the point. Now we know why – because China bet, correctly, that Obama would get the blame for the Copenhagen accord’s lack of ambition.

China, backed at times by India, then proceeded to take out all the numbers that mattered. A 2020 peaking year in global emissions, essential to restrain temperatures to 2C, was removed and replaced by woolly language suggesting that emissions should peak “as soon as possible”. The long-term target, of global 50% cuts by 2050, was also excised. No one else, perhaps with the exceptions of India and Saudi Arabia, wanted this to happen. I am certain that had the Chinese not been in the room, we would have left Copenhagen with a deal that had environmentalists popping champagne corks popping in every corner of the world.

…Except that China, the largest emitter, would not have been part of the deal.  Lynas does not mention that China’s proposal to reduce its carbon intensity by 40-45 percent by 2020 from the 2005 level would have done nothing more than endorse its business-as-usual emissions.  You might have noticed that other countries spoke in terms of cuts in carbon emissions, not in carbon intensity.  What is the difference?  Carbon intensity means carbon emissions per dollar of GDP, so a country with a fast-growing economy can cut intensity without cutting emissions.  According to the International Energy Outlook for 2009, China’s projected carbon dioxide intensity for 2020 is 558 metric tons per million 2005 U.S. dollars of GDP.  For 2005, the figure was somewhere around 1,001 (this is actually the 2006 figure, which I have before me).  So, following its normal policies, China was already expecting to reduce carbon intensity by more than 60 percent—without taking any special mitigation measures, and while emissions per capita would climb another 10-20 percent.  In this way, China promised to do what is what going to do anyway.  Thanks China!  In addition, China refused to agree to any international monitoring, so even if its economy stops growing, and it does not meet its easy emissions target, no one will know.

So China is now the major stumbling block to a climate treaty.  Why?  The answer is surely that the Chinese government gives precedence to economic growth.  In other words–it’s acting in its self-interest … just like all the other nations.  It’s dumb to complain that China is now the bad guy just because it doesn’t do what we want it to do.  If western and poor nations want China to act in their interest, there is only one thing they can do: pay China to reduce its emissions.

Jonathan notes that the health care bill includes certain “entrenchment” provisions, and asks, “can the current Senate bind future Senates in this way?”  If I understand the bill correctly, it creates an independent board that recommends ways to limit Medicare payments.  These recommendations go to the president, who in turn is supposed to submit them to Congress.  Congressional procedures are likewise constrained.  The Senate, for example, cannot debate the proposal for more than 30 hours; there are limits on House procedures as well.  The idea seems to be to constrain filibustering and other parliamentary maneuvers that would defeat cost-saving legislation in the future.  As Jonathan notes, the bill further provides that these constraints cannot be overturned by majority rule but require a 2/3 supermajority.

Can Congress bind itself in this way?  As it happens, I have written a paper on this topic (with Adrian Vermeule).  The short answer is “no,” or at least, no one thinks that Congress can bind itself in this way.  (For some Supreme Court dicta, see U.S. v. Winstar, 518 U.S. 839, 872 (1996)).  A Congress at time 1 can pass all the entrenchment provisions it wants, but Congress at time 2 can repeal them by majority rule, rendering the entrenchment provision nugatory ex ante.

Academics have spent a lot of time justifying the restriction on entrenchment, but, our paper argues, have failed.  Some scholars make conceptual arguments: Congress can’t bind future Congresses to supermajority rules if every Congress rules by majority.  But these conceptual arguments are clearly wrong, as Article V of the Constitution shows (and, indeed, the Senate’s own internally enforced supermajority rules).  It is certainly possible to entrench policy; the question is whether courts or other relevant agents will respect the rules.  Most scholars seem to fear that if Congress can entrench legislation, then it will resolve all questions today that might come up in the future, depriving future generations of their right to self-government.

The problem with this argument is that Congress can already bind the future in uncontroversial ways.  It borrows money, compelling the future to repay or suffer a loss of credit.  It starts wars, compelling the future to finish them.  Everything Congress does affects future generations, for good or for ill.  Imposing restrictions on its own procedures is not really distinctive.  If you think Congress should be able to do anything at all, then you are probably compelled to conclude that it ought to bind itself.  In this instance, part of the health care deal is a commitment by Congress to restrain growth in Medicare spending.  Since people don’t believe that Congress will actually control Medicare spending if normal parliamentary procedures are used, the Senate is trying to entrench this commitment.  Unfortunately, it will fail—at least, if it depends on the courts to enforce these rules.  It is possible that the rules will create a political entrenchment of some sort, but it is hard to tell.

The most tangible outcome of the climate agreement announced here Friday turned out to be cash….

But money in notable quantities should, in principle, start flowing next year….

The accord calls for the establishment of the Copenhagen Green Climate Fund to support immediate action to help curb emissions and to help communities adapt to the effects of global warming.

An initial, fast-start fund worth $10 billion annually would operate from 2010 to 2012.

For long-term finance, developed countries agreed to support a goal of jointly mobilizing $100 billion a year by 2020 to address the needs of developing countries.

So says the NYT.  It is hard to know where these figures come from.  The Copenhagen Accord itself does not give figures.  Various heads of state, including President Obama, bandied around the $100 billion figure, but Obama did not say what America’s contribution would be, and he made it clear that he expected other countries to make up the difference, which they might or might not do.

Let’s suppose this money comes through.  What is it for?  One reads the press reports on the Copenhagen meeting in vain for this information; nor do any of the official documents I have seen shed any light on this issue.  Consider the following possibilities:

1.  The money will go to the countries that experience the worst climate-related harm.

2.  The money will go to the poorest countries.

3.  The money will go to the poorest countries that experience the worst climate-related harm.

4.  The money will finance green energy infrastructure in developing countries.

Each of these possibilities draws on different ideas of justice and pragmatism.  The first rests on an idea of corrective justice—those who cause climate change should compensate those who are injured by it.  The second reflects distributive justice, but note that it has nothing to do with climate change.  Should a very poor country be deprived of resources just because its poverty can’t be traced to climate-related harms?  The third principle says yes.  The fourth principle is forward-looking and would withhold resources from very poor countries that are not developing and thus cannot use green energy infrastructure—it would in fact reward the fastest-developing countries, meaning those whose people are likely to become wealthier sooner.  It is thus in tension with principles 2 and 3.

In fact, none of these principles ought to provide the basis for distribution of the fund.  The fund should be used to pay off countries whose participation in a climate treaty is essential but have little interest in participating.  Russia is the chief example, but China is a possible example as well.  Those countries that care about climate change must compensate large emitters that don’t care or care very little.  Countries can continue to provide foreign aid to poor countries as they have done for decades: there is no reason to use a climate treaty as a device for further redistributing wealth.

The contrary view(s), that rich countries should pay money to poor countries or climate victims, has no political legs.  This position simply raises the price tag for climate mitigation, a crazy thing to do when already people are balking at paying anything at all.

This is the truth that cannot be publicly acknowledged but fortunately it does seem to be guiding the next steps of negotiations.  The top 20 or so emitters have booted out the rest of the world, unwilling to allow poor countries to continue to hold up negotiations in order to extract further rents, as they did at Copenhagen.  This coalition of the willing is the best hope for a climate treaty.

The original goal of Copenhagen was a 192-country treaty that committed all nations to reduce carbon emissions.  The much-scaled down goal that emerged in the weeks before the delegates arrived was a “political agreement” (not a treaty) that expressed a global consensus on the importance of reducing emissions.  What we finally got was a political agreement signed by a handful of countries—as far as I can tell from the press reports, only the United States, China, India, South Africa, Brazil, and a “group of European nations.”  The other 180-odd countries refused to sign the Accord, instead merely “taking note” of it in the final Copenhagen document.  The Accord did no more than reiterate that climate change is a problem and nations should do something about it.  The White House has declared victory, or success, or validation, or some such thing; if that is so, what is failure?

As I noted in a previous post, one lesson of the debacle was the impossibility of global governance understood in the conventional sense to mean that all countries have some say in the development of international law.  In a recent book, I speculated about this possible effect of the fragmentation of nations—the number of countries have approximately tripled since World War II.  More nations, I argued, imply less international law, at least, of the sort that can solve global-scale public goods problems.  Copenhagen illustrates the dilemma—you can have climate mitigation or you can have global governance; you can’t have both.

The agreement-to-agree did three things.  It established that a critical mass of developed and highly industrialized developing countries such as China agree that climate change is a significant problem, and that these countries need to reduce their emissions.  It provided that countries will have to submit to a monitoring system.  And it suggested that rich countries will have to make a payoff of some sort to poor countries.  But it did not produce agreement on particular targets or amounts, let alone a treaty.  Indeed, most of the world did not [corrected, 12/20] even formally sign onto the Copenhagen Accord, which contains these quasi-commitments.  You can read the Copenhagen Accord here.

Why the failure?  Here are some hypotheses:

1.  We are far from global democracy: the only workable agreement is one that a small number of states, fewer than twenty probably, can negotiate.  As the number of negotiators increases, the potential for holdout, bickering, and other transaction costs increases exponentially.  After much wasted time, the major emitters appear to have agreed to go forward on their own, over the next months and years.  It is fortunate that fewer than 20 countries account for nearly all carbon emissions, but this probably won’t be true farther in the future, which is an extremely serious problem.

2.  The rich countries took too seriously the demands of the poor countries.  The poor countries have always demanded money from rich countries—the “climate debt” is just the latest rationale.  But the legacy-of-imperialism and globalization-causes-poverty arguments failed to move the rich countries, and the climate debt argument won’t as well.  It is, first of all, a not very good argument, for reasons I have discussed elsewhere.  Beyond that, the rich countries know that their citizens will not countenance a climate pact that requires the transfers of tens or hundreds of billions of dollars to poor countries.  Foreign aid has never been popular; it has never been generous (most foreign aid payments are not motivated by altruism but by particular foreign policy goals).  I suspect that the rich countries offered the money to try to avoid the political cost of failure at Copenhagen, but never intended to pay it.  The poor countries understand this, which is why they refused to cooperate.  (See Ken’s post for more.)  In future, the rich countries will freeze out the poor countries in the negotiations, offering some token amount of money for technical assistance and adaptation.  When the take-it-or-leave-it-ness of the deal becomes clear, poor countries will reluctantly sign on in order to get their scraps.  This should have been anticipated; the political cost of failure at Copenhagen was the price to be paid for failing to be realistic about this problem.

3.  The United States lacked credibility.  The Senate has not passed a climate bill.  Even if a bill does pass, the world understands that the American public has little enthusiasm for a climate treaty—a huge fraction of Americans do not even believe in anthropogenic climate change.  Americans also hate foreign aid (which they stubbornly overestimate) and distrust international institutions—and a climate treaty will probably require a bunch of them.  If the United States cannot credibly promise to reduce emissions by an adequate amount, then other countries have no reason to make politically costly commitments on their own side.  President Obama’s personal commitment to climate mitigation cannot overcome this rational skepticism.

See also Ken’s recent post.

In response to my skepticism about President Obama’s justification for the surge of troops in Afghanistan, Heather Hurlburt explained on Bloggingheads that the U.S. needs to stabilize the Afghanistan-Pakistan border not only to keep extremists in Pakistan out of Afghanistan, but (more important) to keep extremists in Afghanistan out of Pakistan.  If the Pakistani regime comes crashing down, then nuclear weapons might be sold or given to Al Qaeda, which might then use them against the United States.  Does this sound familiar?  Sounds like the latest version of the one percent doctrine to me.  Just as the Bush administration claimed it had to invade Iraq in order to prevent Saddam Hussein from handing over nukes to Al Qaeda, the Obama administration says it has to expand the war in Afghanistan in order to prevent Pakistan from handing over nukes to Al Qaeda.  Okay, 5 percent for Obama, 1 percent for Bush.  Reread the speech: the frequent reference to Pakistan, starting with the title of the speech, lends plausibility to Heather’s theory.

In his willingness to use military force to counter remote but potentially significant threats, Obama does not seem so different from his predecessors.  What about his emphasis on multilateralism, which Heather makes much of?  In fact, no one really supports America’s war in Afghanistan/Pakistan.  Not the European governments, whose token forces are deeply resented by European publics.  Not the frequently forgotten rest of the world—places like China, Russia, and India.  For all his eloquence, Obama is constrained by events, and reaches for the same tool that American presidents have used for decades—military force, with other nations if possible, but without them if necessary.

Ken Anderson’s post a while back expressed pessimism for classic collective-action reasons:

Well, I do not understand how this Copenhagen conference manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area.  Extremely diffuse damage from a multitude of players, now and into the future; diffuse set of actors who must act in a coordinated way; individual states being tasked to take sacrificial actions that in the short and medium term at least are bad for their individual economies and their voting citizens; consistent record of failures not just in the nature of the promises made, but in their non-fulfillment even as they stand … on what grounds does anyone plausibly think that Copenhagen might produce a different outcome?

Noah Sachs replies:

Anderson is too pessimistic.  After all, over 180 countries have already agreed to two prior climate treaties (The UN Framework Convention in 1992 and the Kyoto Protocol in 1997), as well detailed rules for implementation (Marrakech Accords in 2001), all of which are currently being implemented.  The UN Framework Convention remains the organizing document for continued international efforts to address climate change, and the majority of industrialized parties to Kyoto are expected to comply with their Kyoto commitments by the end of the first commitment period, in 2012 (with some notable exceptions, such as Canada).  The EU-15 are on track to exceed their Kyoto commitments by 2012.   Reports of the death of Kyoto are greatly exaggerated.

This was news to me.  The most recent scholarly work I am aware of indicates that only four of the EU-15 are on track to meet their Kyoto commitments.  The document cited by Sachs assumes that the EU countries will take actions in the future to reduce GHG emissions beyond those they have already taken (what it calls “additional” actions, as opposed to the “existing actions,” which are plainly insufficient).  Maybe, maybe not.  We will see.  As for his other points, note that the UN Framework Convention imposed virtually no obligation on anyone (aside from collecting information and attending conferences); the vast majority of the 180+ members of Kyoto have no obligations at all (except to accept free assistance); most of the remaining Annex I nations are also not in compliance; most of the nations actually in compliance owe their good fortune in this respect to their bad fortune in another respect—economic collapse; and the obligations for the Annex I nations were not onerous in the first place (in part because of the EU bubble which allows EU countries to benefit from the fact that the UK and Germany were reducing GHG emissions for unrelated reasons).

Sachs continues (with my interpolations in brackets):

So why would any country agree to, let alone comply with, obligations that impose near-term national costs but bring longer-term benefits to the globe as a whole?  Let me count the ways:

Self-interest in avoiding drought, sea-level rise, and hundred-degree summers

[This restates Ken’s premise—that states have an interest in mitigating climate change—and does not address his concerns about the collective action problem, which assumes that states will act in their self-interest.]

A recognition that this particular prisoners dilemma calls for global cooperation rather than defection, coupled with the recognition that emissions monitoring can detect violators.

[True for all prisoner’s dilemmas.  Emissions monitoring is an inexact technology, to say the least.  How are we to monitor emissions in China?]
 
A recognition of the historic responsibility of industrialized nations for the underlying problem

[This particular view, widespread in developing countries but held only in parts of the elites in industrialized countries, stands in the way of a successful treaty because industrialized nations have no interest in paying for their past harms, only an interest in avoiding future harms.]

Domestic political pressure not to tank a climate deal

[… And domestic political pressure to tank a climate deal.]

Reputational costs for major emitting countries for tanking a climate deal

[Not clear that there are any.]

A recognition that a national commitment to energy efficiency and a low-carbon economy benefits national security and international competitiveness.

[It can’t be the case that everyone’s competitiveness will be increased!  They are competing against each other, after all.]

The opportunity to participate in lucrative global carbon trading markets as a party to a post-Kyoto treaty.

[And the loss of the opportunity to participate in even more lucrative fossil fuels markets.]

Translation of commitments made internationally into binding domestic legislation, as occurred in the EU.

[Which can be overturned, or not enacted in the first place.]

The collective action problem is not a law of nature; a treaty is not impossible.  But it needs to be recognized that a climate treaty that actually mitigates climate change would be an unprecedented development in international law.  It would be the most costly, intrusive, and complex treaty ever ratified—requiring most states to incur heavy short-term economic losses, to cooperate in a complex n-player PD, to submit to intrusive, sovereignty-offending monitoring, and to tolerate the corrupting effect of billions of dollars of emission permits that will wash over developing nations with weak legal systems.  And it will require substantial payoffs to developing nations—including geopolitical rivals like China—that rich countries have never been able to bring themselves to accomplish in the past.  In fact, right now climate negotiations are all about who will pay how much to whom.  Poor countries want $200 billion per year  (and don’t call it “aid”!), far more than rich countries are willing to pay.  Some wise government officials in Europe have had the happy thought that the rich countries could simply divert the money from their existing aid budgets, which would of course benefit poor countries not at all.

Over the next few years, look for a weak treaty with lots of holes and safety valves; that will do a little for climate change mitigation but not nearly enough; that will hand over some pennies to developing countries; that will result in partial but not full compliance; that will generate enormous, legitimacy-threatening corruption in developing countries.

In 1974, a pair of scientists published a paper claiming that chlorofluorocarbons, a compound used in refrigerators, air conditioners, aerosol spray cans, and other devices, migrated into the atmosphere, where they damaged the ozone layer.  The ozone layer protects human beings from some of the harmful effects of the sun; the predictable consequence of its loss would be millions of skin cancer cases.  The scientists’ work was hotly contested; it eventually gained support in the scientific community, but there were also dissenters.  EPA would later regulate the use of CFCs in aerosols, but it was clear that unilateral regulation by the U.S. government would not solve the problem.  CFCs manufactured and used in any country could damage the ozone layer.

The American government turned to the Europeans, the other major manufacturers and users of CFCs.  Europeans, however, did not trust the science and expressed skepticism about the CFC theory.  After further scientific research established that an ozone hole had opened up above Antarctica, and that the likely cause was the emission of CFCs, the Americans dragged the still skeptical Europeans into a treaty regime that tightly regulated the use of CFCs and other ozone-depleting gases.  The Montreal Protocol is the most successful environmental treaty ever (the only successful environmental treaty?).  The hole has been gradually shrinking and is expected to disappear later this century.

The odd part of this story is that, while not everyone agreed with the scientists who found the link between CFCs and ozone depletion, and that indeed, like everything else, the link was uncertain, albeit likely, governments were able to agree on a treaty regime.  The leading supporters of a treaty were those tree-huggers in the Reagan administration, who were persuaded by a cost-benefit analysis that the benefits from a ban on CFC greatly exceeded the costs—with the benefits properly discounted given residual scientific uncertainty.  There were ozone skeptics, but no Ozone Skeptics.  There was a reasonable scientific theory but no models that got everything right all the time.  There was an observable hole (if you believed the scientists who measured it) but the physical processes that linked it to refrigerators and aerosol cans could obviously not be demonstrated to the public.

Where were the Climate Skeptics back then?  Or was ozonegate, like asteroidgate, a non-event because the climate is a “complex system” whereas, um….  Why didn’t “hierarchical and individualist” citizens find the Montreal Protocol “threatening to their identities”?  (Cf. Dave Hoffman on asteroidgate.)  Were scientists more honest in those days?  Commentators more sober?  The public more credulous?

Suppose that astronomers around the world alerted us that a large asteroid is headed in our direction, and might collide with the earth in the year 2012.  The astronomers cannot give us a precise probability of collision because of many imponderables.  The laws of physics are, of course, uncontroversial, but there is some disagreement about the precision of the instruments used to measure the location of small objects at great distances.  It is also, of course, possible that the asteroid could be deflected by another object before it reaches the earth.  And astronomers concede that they do not know everything there is to know about outer space.  When pressed, the astronomers will say only that the scientific consensus is that a collision is “very likely,” and that, if it occurs, the consequences will be catastrophic.  To build a defense system—say, rockets that would intercept the asteroid and knock it off course—would cost hundreds of billions of dollars.

As is always the case, there are a few dissenters.  A highly regarded astronomer at MIT points out that astronomers have made incorrect predictions in the past and argues that a collision is possible but not likely.  A few physicists who do not specialize in astronomy argue that scientific instruments are not as precise as some people think, and the astronomers’ risk estimate should therefore be distrusted.  A scandal erupts when emails at the West Anglia Space Research Unit are released, and shows that some scientists tried to arrange a boycott of a journal that published a few articles of the skeptics.  At the same time, thousands of astronomers not connected with the West Anglia Unit continue to insist that the risk of a collision is very high.

A few questions.  In this scenario, would there emerge an industry of non-credentialed “astronomy skeptics” in the press and public comparable to the current batch of “climate skeptics”?  My instinct is that the world would quickly get to work building the rocket system, and disregard the views of the skeptics.  Is this right or wrong?  If it is right, is there some reason to think that climate science and astronomy are different, justifying the skepticism about climate science that does not (yet) exist about astronomy?

[I fear that some will snipe that responsible astronomers would not make such a prediction because of the difficulty of making long-term forecasts given current technological limitations.  If so, let’s just move the hypothetical into a future period when the technology is good enough to produce a “scientific consensus” but not complete agreement about all particulars among all people.]

Representative David Obey’s Share Our Sacrifice Act would finance the war in Afghanistan by imposing a tax on the public.  The idea is yet another in a line of gimmicky populist measures that are sprouting like dandelions this political season, and it has garnered the support of apparently sensible people.  But it has little to recommend it.

One of the Economist’s bloggers says “it’s a very bad idea to get involved in a long, grueling, expensive war without explaining to the American people how much they will have to sacrifice, and securing their support.”  But the War Tax doesn’t explain anything and, as the author says elsewhere, would only reduce their support for the war.  The Economist cites Spencer Ackerman who notes “the military lament that only a select and small proportion of the country is actually at war.”  But soldiers volunteer for service; no one is required to join the military.  If the argument were that soldiers are underpaid and should have higher wages, or that the dependents of soldiers who are killed should receive more generous benefits, it would be possible to sympathize.  The only effect of the war tax would be to raise revenues for the government, which could use them for additional spending or to pay down the debt.  The war will go on, however the revenues are used.

It is possible that the Afghanistan War is a bad idea; if so, the remedy is to end the war, not to raise taxes.  If it is a good idea, the benefits will accrue to the inhabitants of the future, who will be protected from terrorists and other baddies, not us.  We perform a benefit for the future, and we charge them for our costs; what is there to object to?  Deficit spending for what is in effect a capital investment—as opposed to spending on current consumption—is justified.  If the War Tax is imposed, we simply transfer additional wealth from ourselves—including the soldiers and others already making the sacrifices—to the future.

Just as the war must be evaluated on its own merits, so must taxation.  If the real goal of the tax is to reduce the deficit, that’s fine; just don’t call it a “war tax” (as long as we are explaining things to the American people); call it a “tax.”  If, as many economists believe, now is the time for further stimulus; a tax is a bad idea.  We’ll have to borrow even more to offset the demand-suppressing effects of the tax.  Whatever the case, the possibly good fiscal reasons for raising taxes are independent of the war in Afghanistan.

The answer is not “the rule of law.”  According to the WSJ, Holder said:

The 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions.

So the U.S. government has the option to try suspected members of Al Qaeda in civilian court or in military court.  The “rule of law,” then, does not compel traditional civilian-court protections.  However, the question remains unanswered.  To say that one has an option is not to say why one exercised that option as one did.

Then what is the answer?  It is surely this: the Obama administration has decided to offer a two-tiered system of justice.  We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier.  The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy.  The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.

This approach makes sense.  Endless detention without trial is no longer a politically viable option.  The government will make a judgment as to whether a suspect is dangerous or not.  If the case is good, the high-quality system will be used.  If the case is bad, the low-quality system will be used.  In this way, the government can ensure that people it thinks are dangerous will be locked up.

This system is superior to the two possible one-tier systems.  A pure low-quality system (military commissions only) suffers from credibility problems.  People will not believe that all the people who are convicted are guilty.  A pure high-quality system (civilian courts only) would result in too many acquittals.  People who the government believes are dangerous will be back on the streets.  The two-tiered system allows for credible convictions when credible convictions are possible, and (non-credible) convictions when credible convictions are not possible.  The two-tiered system produces higher overall credibility without sacrificing the incapacitation of dangerous (or supposedly dangerous) people.

The main criticisms of Holder’s approach are that KSM and others will take over proceedings and use them for propaganda purposes, that secrecy will be compromised, and that the approach signals insufficient seriousness about the terrorist threat.  The first two concerns are actually irrelevant.  The DOJ will decide on a case by case basis, and if those concerns in any particular case are serious, it will opt for military commissions.  The last concern is harder to evaluate, but it boils down to the claim that a blunderbuss system that results in outcomes that people distrust is better, on symbolic grounds, than a surgical system that produces the same pattern of convictions but with higher overall credibility.  Why would the more intelligent approach signal lack of seriousness about terrorism?

Sept. 1, 1939

Nazis Invade Poland
Overcrowding in Germany Cited

Sept. 2, 1939

For Nazis, a Hard Time To Be Europeans
Neighbors’ Suspicions Caused Stress, Resentment

Sept. 3, 1939

In Central Europe, Other Countries Invade Their Neighbors, Too

Sept. 4, 1939

When Fuhrers Snap
Rallies, Pogroms Took Toll on Leader

Henry Farrell replies to my replies.

International Law and Rational Choice Theory.  I agree with Henry’s discussion of the limits of rational choice theory and so don’t understand why he thinks I commit the fallacies that he describes.  It would be one thing if I said that states’ compliance with treaty X is consistent with rational choice because the folk theorem allows for cooperation, while states’ noncompliance with treaty Y is consistent with rational choice because the folk theorem allows for noncooperation.  Or if I said that states comply with treaty W because they care about their reputations for complying with W but that states fail to comply with treaty Z because they don’t care about their reputations for complying with Z.  But I never make such arguments, instead ruling out the first type of argument as uninformative and the second as circular.  My account of international law is parsimonious, and the usual criticism directed at it is not that it can be manipulated so as to explain anything, but that in fact it fails to explain why certain legal regimes have been successful.  So, for example, if in fact states do overcome a collective action problem and collectively sanction states that violate human rights, that is a problem for my theory, not something that I try to explain away by asserting that states have an interest in (say) having a good reputation for enforcing human rights treaties.  This is why both Henry and I have invoked the empirical literature on this topic.  If I could save my theory by redefining state interests or picking and choosing among multiple equilibria, I wouldn’t have bothered to cite evidence.

Again, the major criticism of my theory is not that it is unfalsifiable but that it is false.  I have acknowledged anomalies, both in Perils of Global Legalism and in other work.  The European Union is a big problem (as are the many other political unions that have taken place throughout history).  The European Court of Human Rights is, at a minimum, in tension with my theory.  Another frequently invoked refutation is the WTO system; I addressed this argument in my earlier book.  So there is much that the theory does not capture or does not capture cleanly.  But alternative theories, those that express a great deal more optimism about the capacity of international law to constrain states, have an even less terrific record.  Henry perhaps has in mind other theories of international law that explain variations in compliance levels across states and treaties in a more persuasive way—theories that are both testable and consistent with the evidence.  If so, one would want to hear what these theories are.

Let me conclude by briefly discussing one of the themes of Perils—international adjudication.  Nineteenth century international arbitration was generally considered successful and inspired calls for genuine international courts in the twentieth.  Yet the performance of the international courts has been disappointing.  What theory of state behavior can reconcile these outcomes?  My argument is a (version of) rational choice theory that emphasizes the possibility (folk theorem again) of bilateral cooperation but expresses skepticism about robust forms of multilateral cooperation.  Arbitration flourished because it relied on simply forms of bilateral cooperation; adjudication failed because it relied on ambitious forms of multilateral cooperation.  If the theory is correct, it suggests skepticism about proposals to create more international courts and strengthen existing ones.

The theory might not be correct, but if so, the problem is not that I incorporate preferences to use international arbitration or adjudication in the definition of states’ interests.  What one wants to hear is not cavils about the general weaknesses of rational choice theory but either a refutation of the empirical claims or the alternative theory that can explain (away) the failures of adjudication and thus provide the basis for optimism about future courts and, better yet, proposals for improving them.

The UNCHR.  In a previous post, I commented that the UNCHR was a failure because it did not stop or mitigate human rights abuse, or maybe a success because states, to avoid the sting of its criticism, replaced it with an institution that appears to be even more toothless.  Henry replies:

These possible explanations obviously cannot both be true at the same time. Arguing in the alternative may perhaps be an accepted approach in the legal academy (I am not, obviously, a legal scholar), but it doesn’t seem to me to be a good way of dismissing the merits of empirical claims (it can, of course, be useful, at the earlier stage of hypothesis formulation).

Ouch!  Lawyer I am, with all the faults of that tribe, but in this case I didn’t argue in the alternative (“my client didn’t shoot the victim and, if he did, it was because the victim pointed a gun at him first”), nor are my statements inconsistent.  The UNCHR had enough power to annoy states (by publicizing their human rights abuses or those of their allies) but the sting was not enough to cause states to improve their human rights practices.  There are numerous possible explanations for this outcome.  The cost of improving human rights practices was higher than the cost of the absorbing the sting; or states believed that even if they reasonably improved their human rights practices, they would be stung again, so there was no reason to bother; or the sting afflicted especially powerful states (for example, the United States which tired of the criticisms of Israel).  Whatever the reason, states responded by disbanding the UNCHR and—to all appearances—replacing it with an institution that is even more toothless.  The success was tactical, the failure was strategic.

Perhaps Henry’s only point is that even the modest tactical success is inconsistent with the theory that I advance in the book.  Perhaps; I will have to think about it.  For now, I can only revert to the overall purpose of the book.  If states set up an international institution for the purpose of generating a collective good, and that institution turns out to have the power to annoy some states but does not measurably change their behavior other than to cause them to disband it, that is not much of a testament to the power of international law, still less of global legalism.

Continuing our exchange, Henry Farrell says that the answer is likely yes, noting that “there is good evidence that the HRC’s predecessor, the even more widely excoriated UN Commission on Human Rights did have a measurable, and arguably positive, effect in punishing notorious human rights violators, despite its many flaws.”  He cites two empirical papers by Jim Lebovic and Erik Voeten.  The first found that the Commission targeted and punished (that is, publicly “shamed”) countries with worse human rights records (except those with significant geopolitical power such as China, Pakistan, and Saudi Arabia).  The second found that the World Bank and other multilateral aid institutions gave less aid to countries that were condemned by the Commission than to those that were not.

However, Henry reads too much into the papers.  The papers do not show that the Commission caused any countries to improve their human rights practices.  The first paper shows that a lot of talk took place but not that the talk led countries to treat their citizens more humanely.  The second paper finds no evidence that the World Bank lent less to countries with (objectively) worse human rights records than to countries with better human rights records.  (Even if it did, other empirical research shows that even significant sanctions, far worse than the refusal to extend loans or aid, rarely cause states to change their behavior.)  It is possible that countries dislike public criticism enough to change their behavior, but the first paper shows that cozying up with a great power is just as good a strategy for avoiding criticism from the Commission as improving one’s human rights record.  The results of the second paper—as well as results elsewhere in the literature on the (weak) relationship between international law and human rights practices—suggest that states targeted by the Commission either did that or shrugged off international criticism.

Why did states set up the UCHR and tolerate it as long as they did?  States decided after World War II that human rights violations are a matter of international concern.  This judgment reflected both altruistic concerns about fellow humans living in foreign countries and a conviction born out of the Nazi experience that states that violate the rights of their own citizens pose a threat to international peace.  Human rights improvement is a classic public good, and the free rider problem has interfered with efforts to pressure states to respect the human rights of their populations.  When some states isolate a human rights abuser, other states have an incentive to do business with it.  Sudan and China are just the latest example.

States also disagreed about what human rights means, and still do.  They punted to weak multilateral institutions like the UNCHR, perhaps hoping that they could work out a consensus and put pressure on the worst abusers.  As Lebovic and Voeten show, this effort failed during the polarized years of the cold war, but had more success once the cold war ended, and (thanks to the collapse of communist ideology) consensus on human rights issues made some progress.

Still, the UNCHR was ultimately a failure.  That is why states disbanded it and replaced it with the Council.  It may well be the case that it targeted abusers more than non-abusers, as Lebovic and Voeten document, and perhaps even put more pressure on abusers than non-abusers.  But this was not good enough.  Imagine a criminal justice system that is more likely to punish actual criminals than non-criminals, but still punishes some (relative) innocents and lets most criminals get away.  Such a system will enjoy little support; even if the sanctions actually sting, they would still not necessarily improve behavior (because the states that improve their human rights records at great cost to themselves must contend with the possibility that they will continue to be criticized).

An even more alarming possibility is that the Commission was disbanded not because it failed but because it succeeded too well.  Tired of being criticized by their peers, members of the Council have instituted a number of review mechanisms (universal periodic review that prohibits fact-finding and group judgments, “thematic” review that emphasizes general problems rather than particular governments) that ensure that particular states will rarely be explicitly criticized by the Council as a body, which is what has happened.  These activities clog the agenda, leaving no time to discuss Sudan, Egypt, or North Korea.  The free rider problem and continuing significant disagreement about which rights are human rights and what can justify violating them have doomed the enterprise.

I like the Lebovic/Voeten papers; this is how international law scholarship should be done.  I don’t see why Henry thinks they cast doubt on the methodological approach of rational choice (or what the authors and other political scientists prefer to call liberal institutionalism), which I defend in my book.

I mentioned before Henry’s defense of the laws of war.  Here is the relevant passage.

There is likely a very plausible case to be made that these norms ought to be much tougher and more restrictive than they are – even if they are not a product of power politics they are limited by these politics. Nonetheless, even if they are weaker than they should be, they are still a lot better than nothing. And here, the Goldstone report was exactly right – the ‘but he did it first’ excuse is not, and cannot be a justification for committing war crimes. … Both Gideon and Eric would point to the undoubted fact that the leading politicians of great powers (or their important clients) are highly unlikely to find themselves in the dock for war crimes. But direct punitive sanctioning is not the only effect of law. It can influence the perceived legitimacy of a particular state, its actions and its leadership. It is quite clear that Israel has taken a substantial reputational hit from the Goldstone report, even if it will never be condemned by the UN Security Council, and that Israel’s leaders are worried and upset about this.

I expressed some doubts about this logic in my earlier post.  Here I want to point out another problem with this attitude, at least if one takes seriously its logic.  Let us suppose that the Goldstone report was reasonable and fair (I have not read it, so I have no opinion on this issue).  It is worth recalling that it was commissioned by the Human Rights Council, and would not have taken place but for the decision of that institution.  The Human Rights Council is dominated by illiberal states that cannot agree to condemn North  Korea or Iran or Sudan, but can agree to condemn Israel.  When not condemning Israel, it does two things: it tries to advance a conception of human rights that most western states reject; and it issues bland and uninformative periodic reviews of the human rights practices of states.  If you go to their website, and read their reports, you will notice that when votes occur (as they do for controversial issues but not the bland periodic reviews), there is a distinctive pattern, something like this:

The voting was as follows:

In favor: Angola, Argentina, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Kyrgyzstan, Madagascar, Mauritius, Mexico, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, Zambia;

Against:  Belgium, Bosnia and Herzegovina, France, Hungary, Italy, Japan, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America.

Hm, what should we make of this?  Here we see the Americans in the same bloc as the virtuous Europeans.  (In the case of the Goldstone report, some European countries abstained rather than voting no because they objected to the Council’s failure to mention Hamas in its resolution adopting the report.)  Henry’s view is that if reports like the Goldstone report are regularly issued, and the state that is the subject of the report takes a “reputational hit,” that can only be a good thing, because at least some states will be more likely to respect human rights and comply with the laws of war.  But can it be seriously entertained that the minority bloc (and it is a bloc) will put up with this state of affairs?  Why should they, exactly?  If they value human rights and the laws of war, they can comply with them.  If they don’t, they would certainly not put themselves in the position of being the only group of states that will be condemned for violations, giving a free pass to a larger group of states that, as it turns out, act much worse.

International law needs institutions if it’s to get beyond its primitive state, but institutions don’t avoid the problem of power politics; they embody them.