For this reason, this Article proposes that, rather than fall back on complicated public policy exceptions to contractual choice of law, courts should instead identify and refuse to apply choice-of-law clauses that are adopted for the purpose of making a separate contractual provision enforceable. This Article refers to such clauses as “substance-targeted.” Courts typically do not distinguish between targeted and non-targeted choice-of-law clauses. As a result, targeted clauses are often treated as if they represent an ordinary instance of allowing contracting parties the autonomy to choose the law applicable to their dispute. Yet they involve meaningfully different considerations, both because of the reasons that parties choose to include them and because of their ultimate effects. Unlike conventional choice-of-law clauses, substance-targeted clauses are neither aimed at achieving predictability nor likely to result in it. Their frequent use encourages litigation, disadvantages weaker parties, and fosters fear about results-oriented reasoning when their enforceability is tested. These pernicious effects call for a fundamentally different approach to choice-of-law analyses.

Introduction

On October 24, 2001, Christopher Ridgeway, a resident of Louisiana, accepted a job with Michigan-based Stryker Corporation selling medical supplies to Louisiana doctors and hospitals.¹ 1.See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386 (6th Cir. 2017).Show More The offer was conditional on Ridgeway’s signing several documents, among them a noncompete agreement that included Michigan choice-of-law and forum selection clauses.² 2.Ridgeway initially disputed the authenticity of the noncompete agreement, but evidence produced in discovery suggested that Ridgeway had received a form noncompete identical to 132 others Stryker had signed with its employees over a five-year period. Id. at 387–88. A jury later found that Ridgeway had signed the noncompete.Id.at 388.Show More Ridgeway went on to become a highly successful salesman for Stryker,³ 3.Id. at 386.Show More during which time, according to him, Stryker’s human resource director and other top management assured him on several occasions that no “[noncompete] agreement existed in his file.”⁴ 4.Id. Stryker unsurprisingly disputed Ridgeway’s view of these conversations, maintaining that they related instead to whether Ridgeway had signed a second noncompete that would enable him to receive stock options. Id. at 387.Show More Based on these assurances, Ridgeway maintains, he began in 2013 to explore employment with a competitor, Biomet.⁵ 5.Id. at 386.Show More Stryker learned of these discussions and immediately fired Ridgeway, who then began working for Biomet in Louisiana.⁶ 6.Id. at 387.Show More A few weeks later, Stryker filed suit against Ridgeway in federal court in Michigan.⁷ 7.Ridgeway was fired on September 10, 2013; Stryker filed suit on September 30, 2013. See Complaint for Injunctive and Other Relief at 4, 34, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Sept. 30, 2013), 2013 WL 5526657.Show More

Stryker’s claims—for breach of contract, breach of fiduciary duty, and misappropriation of trade secrets—all directly or indirectly involved the noncompete agreement Ridgeway had signed.⁸ 8.See Amended Complaint at 1–2, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Oct. 21, 2013), 2013 WL 11276336.Show More The enforceability of noncompetes is a point on which state law differs substantially; in this case, the court noted, “Michigan law favors non-competes and Louisiana law severely restricts them.”⁹ 9.See Stone Surgical, 858 F.3d at 391.Show More There is more consensus on contractual choice-of-law provisions, such as the one in Ridgeway’s contract. Choice-of-law provisions are generally enforced in the United States, with most states recognizing an exception when the chosen law would violate a “fundamental policy” of the state with both the “most significant relationship” to the dispute and a “materially greater interest” in the issue.¹⁰ 10.See Restatement (Second) of Conflict of Laws §§ 187(2), 188(1) (Am. Law Inst. 1971) [hereinafter Second Restatement].Show More Ridgeway argued that the exception should be applied, but both the district court and the Sixth Circuit disagreed. The Sixth Circuit, while finding both that Louisiana indeed had the most significant relationship to the dispute and that its anti-noncompete policy was “fundamental,” nonetheless concluded that Louisiana’s interest was not “materially greater” than Michigan’s.¹¹ 11.Stone Surgical, 858 F.3d at 391.Show More Therefore, Michigan law applied and the noncompete was valid.¹² 12.Id.Show More

The lawsuit ended badly for Ridgeway. The jury entered a verdict of $745,195 for Stryker.¹³ 13.Id. at 388. The jury also denied relief to Ridgeway in his counterclaims against Stryker, which he originally filed in a separate proceeding but were ultimately consolidated with Stryker’s action. Id.Show More Biomet, fearful of being drawn into the litigation, had terminated Ridgeway’s employment shortly after Stryker’s lawsuit was filed.¹⁴ 14.Id. at 387.Show More In March 2016, Ridgeway filed for bankruptcy.¹⁵ 15.See Voluntary Petition for Individuals Filing for Bankruptcy, In re Christopher Martin Ridgeway, No. 16-10643 (Bankr. E.D. La. Mar. 23, 2016).Show More

As Ridgeway was fighting his lengthy and ultimately unsuccessful legal battles, another employee in a dispute over noncompete enforceability was met with a very different result. In 2013, Nevada resident Landon Shores was hired as a sales trainee by Global Experience Specialists (GES), a Nevada company specializing in event marketing.¹⁶ 16.Freeman Expositions, Inc. v. Glob. Experience Specialists, Inc., No. SACV 17-00364, 2017 WL 1488269, at *1 (C.D. Cal. Apr. 24, 2017).Show More The large majority of Shores’s sales for GES related to events in Las Vegas.¹⁷ 17.See id. (“During Mr. Shores’ work at GES, eighty to ninety percent of his sales were for events in Las Vegas, Nevada, and the vast majority of his clients were primarily engaged in Las Vegas.” (internal quotation marks omitted)).Show More Three years later, Shores was promoted to sales manager, a position that required him to sign a noncompete agreement that included a Nevada choice-of-law clause.¹⁸ 18.Id.Show More

In 2017, Shores gave notice at GES and made plans to move to California to accept a job with one of the California offices of Freeman Expositions, a Texas corporation.¹⁹ 19.Id.Show More GES did not take the news well, and two GES employees made threatening calls to Shores.²⁰ 20.See id. at *2. One asked him “Do you really want to go down this road?” and explained that “[o]ne path is to remain with GES and the other path is to go with Freeman and get sued and go broke. It is a lot easier to get out of an offer letter than a non-compete agreement.” Id.Show More Undeterred, Shores began his job at Freeman, which shortly thereafter filed suit in federal court in California seeking a declaration that Shores’s noncompete clause was invalid.²¹ 21.See id.Show More

In contrast to Ridgeway’s experiences in court, Shores and Freeman encountered a friendly reception. Nominally applying precisely the same doctrinal framework the Sixth Circuit had in Ridgeway’s case, the California district court nonetheless concluded that the Nevada choice-of-law clause was invalid²² 22.See id. at *5.Show More—reaching this result despite connections between Shores’s employment and Nevada that were, one might conclude, objectively much stronger than Ridgeway’s with Michigan.²³ 23.Ridgeway, after all, had left a Louisiana-based sales job for another employer in Louisiana; his only contact with Michigan was that his former employer was headquartered there. See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386–87, 390 (6th Cir. 2017). By contrast, Shores had lived and worked in Nevada prior to beginning employment with Freeman. See Freeman Expositions, 2017 WL 1488269, at *1.Show More In Shores’s case, the court had little difficulty making the determination that California had a materially greater interest in having its well-established anti-noncompete policy applied.²⁴ 24.See Freeman Expositions, 2017 WL 1488269, at *5.Show More California had a stake, the court reasoned, in allowing an employer “to hire a California resident to work in California organizing and facilitating exhibitions to showcase California goods and services.”²⁵ 25.Id. at *5.Show More While Nevada, too, had a significant interest in protecting its employer, GES, “its interest pale[d] in comparison to California’s.”²⁶ 26.Id.Show More The court declined to stay proceedings in light of an ongoing Nevada court action and instead granted Freeman summary judgment on the noncompete issue.²⁷ 27.See id. at *1, *3. The court also declined to dismiss a claim by Freeman for interference with its contractual relationship with Shores. See id. at *8.Show More

These two recent cases highlight two persistent problems in United States litigation: the frequency with which parties attempt to use a choice-of-law clause to validate an otherwise unenforceable provision, and the disparate results courts have reached in such cases. These issues are not wholly new.²⁸ 28.As early as 1993, one commentator observed that the issue of choice-of-law enforcement in difficult cases “has generated a raft of judicial decisions marked by confusion, temerity, and vacillation.” Kirt O’Neill, Note, Contractual Choice of Law: The Case for a New Determination of Full Faith and Credit Limitations, 71 Tex. L. Rev. 1019, 1020 (1993).Show More In the realm of noncompetes in particular, employers have attached choice-of-law provisions for decades, despite the fact that the enforceability of such clauses (and thus the noncompete as a whole) is often in doubt.²⁹ 29.See Catherine L. Fisk, Reflections on The New Psychological Contract and the Ownership of Human Capital, 34 Conn. L. Rev. 765, 782–83 (2002).Show More Nonetheless, both these problems have recently become more persistent and widespread.³⁰ 30.See Larry E. Ribstein, From Efficiency to Politics in Contractual Choice of Law, 37 Ga. L. Rev. 363, 367 (2003) [hereinafter Ribstein, Efficiency] (noting that “the number of cases involving contractual choice is increasing significantly over time”).Show More This is true in part because, with the growing popularity of telecommuting and other sorts of long-distance employment, many disputes over noncompetes affect multiple jurisdictions and thus are likely to require a more extended and complex choice-of-law analysis.³¹ 31.See Norman D. Bishara & David Orozco, Using the Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, 87 Ind. L.J. 979, 980, 984–85 (2012) (discussing the need to adapt the law governing noncompetes in a world where a “trend toward the greater use of noncompetes is occurring when . . . geographic boundaries are becoming less important to economic activity”); Gillian Lester & Elizabeth Ryan, Choice of Law and Employee Restrictive Covenants: An American Perspective, 31 Comp. Lab. L. & Pol’y J. 389, 389 (2010) (noting that more mobile employees and more geographically dispersed employers have contributed to a rise in noncompete litigation).Show More Further, noncompetes are spreading to industries that have not historically relied on them, with hair stylists,³² 32.See Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in Array of Jobs, N.Y. Times (June 8, 2014), https://www.nytimes.com/2014/06/09/­business/­noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?r=0 [https://perma.cc/4KQY-H9PV].Show More camp counselors,³³ 33.See id.Show More dog walkers,³⁴ 34.See Matt O’Brien, Even Janitors Have Noncompetes Now. Nobody Is Safe., Wash. Post. (Oct. 18, 2018), https://www.washingtonpost.com/business/2018/10/­18/even-janitors-have-noncompetes-now-nobody-is-safe/?utm_term=.c316c5c­61­487 [https://perma.cc/W7FU-S6M6].Show More and janitors³⁵ 35.See id.Show More sometimes being required to sign them—and facing suit by their employer if they violate them.³⁶ 36.See id. (describing suit by employer against janitor that was dropped following media coverage).Show More Moreover, employers are increasingly relying on alternatives to noncompetes, such as clauses requiring employees to pay back a portion of their salary or other financial benefits upon quitting or being fired for cause.³⁷ 37.See Stuart Lichten & Eric M. Fink, “Just When I Thought I Was Out . . . .”: Post-Employment Repayment Obligations, 25 Wash. & Lee J. Civ. Rts. & Soc. Just. 51, 54 (2018) (describing growth of such provisions’ popularity). These arrangements have recently attracted national publicity for, among other things, the threat they may pose to journalistic independence. See id. at 54–55. Many Sinclair Broadcasting employees, for example, chose to read “politically charged” statements on air, despite their personal reservations, because of worries about triggering repayment clauses in their contracts. Id. The statements were described as “prepackaged reports reflecting conservative views.” Id. at 54 n.15 (internal quotation marks and citation omitted).Show More As one might expect, state law varies significantly on the enforceability of these provisions as well,³⁸ 38.See id. at 68–69, 77–78 (noting differences in particular between the law of California and of other states on the enforceability of post-employment repayment obligations).Show More and employers thus have incentives to couple them with choice-of-law clauses.³⁹ 39.It is difficult to assess exactly how common choice-of-law clauses are in such agreements because employment contracts are often between private parties. See Norman D. Bishara, Kenneth J. Martin & Randall S. Thomas, An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1, 7 (2015). However, it is reasonable to speculate that employers frequently include such provisions, given their popularity in the noncompete context and the uncertainty of the law in this area. For an example of one such case, see Willis Re Inc. v. Hearn, 200 F. Supp. 3d 540, 545–47 (E.D. Pa. 2016) (discussing contractual choice-of-law clause in dispute involving repayment of a retention bonus following employee’s departure for a competitor).Show More

Employment contracts, however, are just the start. Contracting parties in many other areas have similarly attempted to rely on choice-of-law clauses to secure a validating law, and courts have also met those efforts with varying responses. For example, while the use of choice-of-law clauses to sidestep usury laws initially met with increasingly widespread judicial acceptance in most jurisdictions,⁴⁰ 40.See Erin Ann O’Hara, Opting Out of Regulation: A Public Choice Analysis of Contractual Choice of Law, 53 Vand. L. Rev. 1551, 1563–64 (2000) [hereinafter O’Hara, Opting] (noting that, in contrast to the approach of the First Restatement, courts have transitioned to “almost uniformly enforc[ing] choice-of-law provisions that enable the parties to evade state usury laws”). The Second Restatement likely played a role in this acceptance by including a fairly liberal usury provision that operates even in the absence of a choice-of-law clause, providing that a given interest rate will not be invalidated on usury grounds if it is “permissible in a state to which the contract has a substantial relationship” and “not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law.” Second Restatement § 203. The “substantial relationship” requirement is fairly easily satisfied—if, for example, the applicable rate is that of the lender’s place of business or the place where the loan is to be repaid. See Robert Allen Sedler, The Contracts Provisions of the Restatement (Second): An Analysis and a Critique, 72 Colum. L. Rev. 279, 315–18 (1972).Show More courts in some recent cases have declined to enforce such provisions in usury cases where the state of the chosen law lacks the most significant relationship to the dispute.⁴¹ 41.See Fleetwood Servs., LLC v. Complete Bus. Sols. Grp., 374 F. Supp. 3d 361, 372 (E.D. Pa. 2019) (finding that, despite parties’ choice of Pennsylvania law, Texas law applied because Texas had the most significant relationship to the dispute and “applying Pennsylvania law would violate a fundamental public policy of Texas, namely its antipathy to high interest rates” (internal quotation marks omitted)); Am. Equities Grp. v. Ahava Dairy Prods. Corp., No. 01 Civ.5207, 2004 WL 870260, at *7–9 (S.D.N.Y. Apr. 23, 2004) (declining to enforce a choice of New Jersey law in a case involving a usury defense on the same grounds); Am. Express Travel Related Servs. Co. v. Assih, 893 N.Y.S.2d 438, 445–46 (N.Y. Civ. Ct. 2009) (declining to enforce a choice of Utah law in action to collect credit card payments based on New York’s materially greater interest and “strong public policy against interest rates which are excessive”); see also TriBar Op. Comm., Supp. Report: Opinions on Chosen-Law Provisions Under the Restatement of Conflict of Laws, 68 Bus. Law. 1161, 1161–62, 1162 n.2 (2013) (discussing analysis of this issue in New York courts and noting that it deviates somewhat from the orthodox Second Restatement approach).Show More Courts have frequently refused to enforce choice-of-law provisions in various contexts involving consumer contracts⁴² 42.See William J. Moon, Contracting Out of Public Law, 55 Harv. J. on Legis. 323, 347 (2018) (“[C]ourts have consistently refused to enforce choice-of-law clauses in the context of . . . consumer contracts.”). In some cases, this refusal has been based on concerns about the substantive content of the chosen law. See, e.g., Masters v. DirecTV, Inc., Nos. 08-55825 & 08–55830, 2009 WL 4885132, at *1 (9th Cir. Nov. 19, 2009) (holding that California law, rather than the parties’ chosen law, applied to consumer class action waivers because such waivers were contrary to a fundamental policy in California); see also William J. Woodward Jr., Legal Uncertainty and Aberrant Contracts: The Choice of Law Clause, 89 Chi.-Kent L. Rev. 197, 207–09 (2014) [hereinafter Woodward, Aberrant] (discussing case law on enforcement of choice-of-law clauses in questions regarding the applicability of state statutes that convert one-way attorney’s-fee-shifting provisions into two-way provisions). Procedural concerns about information asymmetry and bargaining power disparities in form consumer contracts may also weigh in favor of non-enforcement. See generally Giesela Rühl, Consumer Protection in Choice of Law, 44 Cornell Int’l L.J. 569 (2011) (considering these issues and advocating for European-style limits on choice of law in consumer contracts).Show More and have also often opted for non-enforcement of provisions intended to evade state franchise law protections, such as laws prohibiting waiver of a franchisee’s right to sue under certain circumstances.⁴³ 43.See Andrew Elmore, Franchise Regulation for the Fissured Economy, 86 Geo. Wash. L. Rev. 907, 954 n.229 (2018) (“States prohibit choice of law provisions and waivers in franchise agreements to contract around state franchise law obligations, which will foreclose evasions of a liability through waiver.”). For example, in Wright-Moore Corp. v. Ricoh Corp., the court found that Indiana law applied, rather than the parties’ chosen law of New York, because Indiana had a materially greater interest in the dispute and waiver of a franchisee’s rights was against Indiana’s fundamental policy. 908 F.2d 128, 132–33 (7th Cir. 1990).Show More Recently, emerging issues such as the protection of privacy rights in biometric data⁴⁴ 44.See, e.g., In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 1169–70 (N.D. Cal. 2016) (concluding that a California choice-of-law provision could not be enforced where “California has not legislatively recognized a right to privacy in personal biometric data and has not implemented any specific protections for that right” and biometric data protection was a fundamental policy in Illinois, the state of the most significant relationship).Show More and the practice of telemedicine⁴⁵ 45.See J. Kelly Barnes, Telemedicine: A Conflict of Laws Problem Waiting To Happen—How Will Interstate and International Claims Be Decided?, 28 Hous. J. Int’l L. 491, 526–28 (2006) (discussing potential enforceability of choice-of-law clauses in the context of telemedicine).Show More have also raised issues about choice-of-law clause enforceability.

The issue has arisen, too, in the area of marriage and family law. Many courts, for example, allow choice-of-law provisions to validate antenuptial agreements.⁴⁶ 46.See O’Hara, Opting, supra note 40, at 1564–65 (“Antenuptial agreements are also incorporating choice-of-law provisions with mounting, albeit tentative, judicial support.”); see also John F. Coyle, A Short History of the Choice-of-Law Clause, 91 Colo. L. Rev. 1147, 1162–63, 1162 n.42 (2020) (noting that an example of such a clause exists as far back as 1874).Show More But according to one commentator, “[t]he paucity of court decisions” in areas where potentially applicable law differs significantly continues to “create[] uncertainty for all migratory couples who sign such an agreement.”⁴⁷ 47.See Linda J. Ravdin, Premarital Agreements and the Migratory Same-Sex Couple, 48 Fam. L.Q. 397, 406 (2014).Show More Choice-of-law clauses present distinct but related issues in other areas where states are sharply divided, such as the circumstances (if any) under which gestational surrogacy contracts are enforceable.⁴⁸ 48.See, e.g., Hodas v. Morin, 814 N.E.2d 320, 325–26 (Mass. 2004) (applying Section 187 of the Second Restatement to determine that a surrogacy agreement was valid and finding that no state other than the state of the chosen law, Massachusetts, clearly had the “materially greater” relationship to the dispute). Martha A. Field summarizes the manifold approaches states take toward surrogacy contracts, including fairly broad enforcement, enforcement provided certain requirements are met, toleration without explicitly regulating the subject, and criminalizing paid surrogacy. See Martha A. Field, Compensated Surrogacy, 89 Wash. L. Rev. 1155, 1161–65 (2014). Parties to such contracts have sometimes selected the law of a state hospitable to surrogacy, clauses that courts have enforced in some cases “notwithstanding manipulated contacts with the selected state and strong anti-surrogacy policies in the gestational carrier’s domicile.” Susan Frelich Appleton, Leaving Home? Domicile, Family, and Gender, 47 U.C. Davis L. Rev. 1453, 1512 (2014). Parties, however, cannot count on such a result, meaning that “the safest approach [for parties to a surrogacy contract] is to do something substantial in connection with the surrogacy arrangement in that state beyond just choosing its law.” See Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 509 (2015) (also noting that “courts may not honor the choice-of-law provision” in the absence of a substantial contact such as “using a clinic in [the] state [of the chosen law], or using an agency, surrogate or egg donor from that state”).Show More

Yet despite the proliferation of situations in which the validity of choice-of-law clauses is sharply contested, courts have not grown more consistent in their approach to them. In fact, the opposite is true; as the opening examples suggest,⁴⁹ 49.See supra note 23 and accompanying text.Show More courts increasingly reach disparate results on highly similar facts.⁵⁰ 50.See Woodward, Aberrant, supra note 42, at 208–09 (discussing the uncertainty created by the “fact-based and hopelessly uncertain” analysis under Section 187).Show More In one sense, this is surprising, given that jurisdictions in the United States have widely embraced the same authority—Section 187(2) of the Second Restatement of Conflict of Laws—to guide their approach to contractual choice of law.⁵¹ 51.See infra notes 89–94 and accompanying text.Show More Notwithstanding this rare consensus on choice-of-law methodology, however, courts interpret Section 187(2) in ever-diverging, often wholly contradictory ways.⁵² 52.See infraSubsection II.B.3.Show More This means that the enforceability of choice-of-law clauses involving controversial issues is driven by judicial reasoning that takes highly variegated approaches to seemingly similar facts and is, as a result, often impossible to predict at the time of contracting.

Courts’ inconsistent resolutions of this category of cases have created several problems. To begin with, the disparate results courts have reached on similar facts have undermined faith in the judiciary’s ability to deal with many contested areas of law in a reasoned, unbiased manner.⁵³ 53.See David A. Linehan, Due Process Denied: The Forgotten Constitutional Limits on Choice of Law in the Enforcement of Employee Covenants Not To Compete, 2012 Utah L. Rev. 209, 213 (positing that courts, rather than respecting relevant constitutional constraints, “expansively apply their own restrictive rules against noncompetes to virtually any dispute tried within their borders”).Show More Different commentators have argued in parallel, for example, that decisions refusing to honor contractual choice-of-law provisions in noncompete agreements⁵⁴ 54.See Timothy P. Glynn, Interjurisdictional Competition in Enforcing Non-competition Agreements: Regulatory Risk Management and the Race to the Bottom, 65 Wash. & Lee L. Rev. 1381, 1386–87 (2008) (describing and positing the likely future growth of a phenomenon whereby states seek to export their employer-friendly policies extraterritorially by broadly enforcing both noncompetes and choice-of-law clauses).Show More and those insisting on enforcement⁵⁵ 55.See Linehan, supra note 53, at 212 (arguing that courts have applied their choice-of-law principles in noncompete cases in a way that “fail[s] to respect due process constraints on their power to prefer their own laws to those of sister states”).Show More are driven by forum-law preference or other forms of state favoritism.

Moreover, even assuming that judges are applying Section 187 scrupulously and in good faith, the sheer unpredictability of results creates a host of issues in itself.⁵⁶ 56.See id. at 211.Show More Contracting parties are less able to negotiate effectively if the validity of a choice-of-law provision is in doubt,⁵⁷ 57.See, e.g., Lawrence J. La Sala, Note, Partner Bankruptcy and Partnership Dissolution: Protecting the Terms of the Contract and Ensuring Predictability, 59 Fordham L. Rev. 619, 643 n.135 (1991) (“Because parties normally will not enter into a contract if they are unable to foresee accurately their rights and liabilities under the contract, predictability is a prime objective of contract law.”).Show More and disputes are more likely to end in litigation.⁵⁸ 58.See Glynn, supra note 54, at 1385 (calling attention to “the rise of interjurisdictional disputes involving [noncompete] enforcement”).Show More Further, where parties have unequal bargaining power, legal uncertainty about choice-of-law provisions often unfairly disadvantages the weaker party, who might be able to successfully challenge the clause in court but may lack the resources to try.⁵⁹ 59.See, e.g., Woodward, Aberrant, supra note 42, at 212 (noting that “many rational clients will forego using a lawyer in a small claim or defense if they risk paying their lawyer more (probably far more) than the claim or defense is worth”).Show More Finally, the potential to achieve different results in different courts creates an incentive not merely for forum shopping but also for a race to judgment in which parties pursue parallel litigation in hand-picked forums that each hopes will be the first to deliver a final result.⁶⁰ 60.See O’Hara, Opting, supra note 40, at 1566 (“Unfortunately, however, enforcement of these clauses often turns on an ex post race to judgment.”); see also Viva R. Moffat, Making Non-Competes Unenforceable, 54 Ariz. L. Rev. 939, 959 (2012) (noting that disparities in enforcement of both choice-of-law clauses and noncompetes lead to a situation in which both parties “race to the courthouse in an effort to have the jurisdiction with the more favorable law hear the case”). A widely invoked example of this situation is the litigation underlying Advanced Bionics Corp. v. Medtronic, Inc., in which parallel proceedings in Minnesota and California considered the same noncompete but arrived at different outcomes. 59 P.3d 231 (Cal. 2002) (analyzing both Minnesota and California court proceedings). The two courts each ultimately issued contradictory injunctions forbidding the parties from proceeding in the other court, a standoff only resolved when the California Supreme Court ultimately gave way and dissolved the Californian lower court’s injunction. See id. at 237–38; see also Moffat, supranote 60, at 960–63 (describing the case’s procedural history in detail).Show More

A more fundamental objection, however, is that the practice of using a choice-of-law clause to validate a specific provision not only tends to foster judicial confusion, but is out of keeping with the fundamental goals of contractual choice-of-law enforcement. At first glance, this second point might seem counterintuitive: isn’t the whole point of contractual choice-of-law provisions to allow parties to specify the law that will govern their contract? Yet, as this Article will discuss in detail, most advocates of choice-of-law enforcement have assumed that parties will generally choose a particular jurisdiction’s law for reasons other than the content of specific substantive rules—reasons such as, for example, a jurisdiction’s general expertise in a particular area, the desire to choose a law with which both parties are familiar, or the wish to avoid uncertainty.⁶¹ 61.See infra notes 130–34 and accompanying text.Show More Indeed, conflicts scholars have fairly consistently agreed that contractual choice-of-law clauses should not be used to evade a jurisdiction’s public policy, particularly when it is a strongly defined one.⁶² 62.See infra notes 155–58 and accompanying text.Show More The current approach, however, allows parties to do so in many circumstances, limiting them only through a narrow, difficult-to-apply exception to the general policy of enforcement.⁶³ 63.SeeSecond Restatement § 187(2) (delineating a three-pronged exception to the general policy of enforcement).Show More

In response to this situation, this Article argues for a new way of conceptualizing the issue. Rather than fall back on complicated public policy exceptions to contractual choice of law, courts should instead recognize, and generally refuse to enforce, a particularly problematic category of choice-of-law clauses—those that are adopted specifically in the hope of validating a separate contractual provision. This Article refers to such clauses as “substance-targeted.” A provision is substance-targeted, for example, when it reflects an employer’s wish to substitute more favorable Michigan law for the less noncompete-friendly law that would otherwise apply to its Louisiana employee.

Courts typically do not distinguish between targeted and non-targeted choice-of-law clauses. As a result, targeted clauses are often treated as if they represent an ordinary instance of allowing contracting parties to have autonomy to choose the law applicable to their dispute.⁶⁴ 64.See, e.g., Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 391 (6th Cir. 2017) (finding “no reason to disturb the parties’ choice of Michigan law” with respect to a noncompete where no state had a materially greater interest than Michigan).Show More Yet they involve meaningfully different considerations, both because of the reasons that parties choose to include them and because of their ultimate effects. Unlike conventional choice-of-law clauses, substance-targeted clauses are neither aimed at achieving predictability nor likely to result in it. Their frequent use encourages litigation, disadvantages weaker parties, and fosters fears about results-oriented reasoning when their enforceability is tested.⁶⁵ 65.See infra Subsection II.B.3.Show More More broadly, scholars have raised concerns about the possibility that choice-of-law clauses adopted to gain the benefit of substantive rules will “undermine the enforcement of public regulatory statutes designed to safeguard a particular vision of the market.”⁶⁶ 66.See Moon, supra note 42, at 325.Show More These pernicious effects—unlike the normally positive consequences of enforcing non-targeted clauses—call for a fundamentally different approach to choice-of-law analyses.

While other authors have advocated reforms in the courts’ approach to choice-of-law clauses,⁶⁷ 67.Notably, Larry Ribstein has argued that courts should “enforce express written choice-of-law clauses notwithstanding common law or statutory restrictions on enforcement, except when the clause is explicitly prohibited by a state where a contracting party resides and no party resides in the designated state.” Ribstein, Efficiency, supra note 30, at 368. Elsewhere, Erin A. O’Hara and Ribstein advocate for a somewhat similar approach under which “choice-maximizing rules proposed in this Article operate as default rules that legislatures can overrule by explicit statutes where necessary to preserve their power to legislate effectively.” Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev.1151, 1153 (2000). In contrast to O’Hara and Ribstein, this Article’s central focus in reforming contractual choice of law is not on legislative involvement, although it does argue that a legislative role in defining areas of significant policy is desirable. See infra notes 269–70 and accompanying text. Rather, this Article argues that targeted and non-targeted choice-of-law clauses are fundamentally different and require distinct treatment.Show More this Article is the first to identify and propose a solution to the problem of substance targeting. The Article argues that it is feasible for courts to identify substance-targeted clauses⁶⁸ 68.See infra Section III.A.Show More and that, once so categorized, such provisions—because they fail to serve the goals of contractual choice of law more generally—should typically not be enforced.⁶⁹ 69.See infra Section III.B.Show More

This Article proceeds in three Parts. The first Part describes the typical framework applied to the enforceability of choice-of-law clauses in the United States. The second argues that substance-targeted choice-of-law clauses should represent a distinct category of conflicts analysis and discusses the reasons why current doctrine fails to adequately address the issues such conflicts present. Finally, the Article sets forth a proposal for reform, arguing that targeted choice-of-law clauses implicating questions of policy should be unenforceable in most cases.

1. * Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law; visiting scholar, Freie Universität, Berlin, Germany, 2018–19. I wish to thank Afra Afsharipour and Kevin Johnson for financial support; John Coyle, David Horton, John Patrick Hunt, Lisa Ikemoto, and Courtney Joslin for insightful comments; and Niharika Sachdeva for helpful research assistance. I also thank my hosts at the Freie Universität: Dr. Andreas Fijal, Dr. Felix Hartmann, and Ms. Grit Rother. ↑
2. See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386 (6th Cir. 2017). ↑
3. Ridgeway initially disputed the authenticity of the noncompete agreement, but evidence produced in discovery suggested that Ridgeway had received a form noncompete identical to 132 others Stryker had signed with its employees over a five-year period. Id. at 387–88. A jury later found that Ridgeway had signed the noncompete. Id. at 388. ↑
4. Id. at 386. ↑
5. Id. Stryker unsurprisingly disputed Ridgeway’s view of these conversations, maintaining that they related instead to whether Ridgeway had signed a second noncompete that would enable him to receive stock options. Id. at 387. ↑
6. Id. at 386. ↑
7. Id. at 387. ↑
8. Ridgeway was fired on September 10, 2013; Stryker filed suit on September 30, 2013. See Complaint for Injunctive and Other Relief at 4, 34, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Sept. 30, 2013), 2013 WL 5526657. ↑
9. See Amended Complaint at 1–2, Stryker Corp. v. Ridgeway, No. 1:13-cv-01066 (W.D. Mich. Oct. 21, 2013), 2013 WL 11276336. ↑
10. See Stone Surgical, 858 F.3d at 391. ↑
11. See Restatement (Second) of Conflict of Laws §§ 187(2), 188(1) (Am. Law Inst. 1971) [hereinafter Second Restatement]. ↑
12. Stone Surgical, 858 F.3d at 391. ↑
13. Id. ↑
14. Id. at 388. The jury also denied relief to Ridgeway in his counterclaims against Stryker, which he originally filed in a separate proceeding but were ultimately consolidated with Stryker’s action. Id. ↑
15. Id. at 387. ↑
16. See Voluntary Petition for Individuals Filing for Bankruptcy, In re Christopher Martin Ridgeway, No. 16-10643 (Bankr. E.D. La. Mar. 23, 2016). ↑
17. Freeman Expositions, Inc. v. Glob. Experience Specialists, Inc., No. SACV 17-00364, 2017 WL 1488269, at *1 (C.D. Cal. Apr. 24, 2017). ↑
18. See id. (“During Mr. Shores’ work at GES, eighty to ninety percent of his sales were for events in Las Vegas, Nevada, and the vast majority of his clients were primarily engaged in Las Vegas.” (internal quotation marks omitted)). ↑
19. Id. ↑
20. Id. ↑
21. See id. at *2. One asked him “Do you really want to go down this road?” and explained that “[o]ne path is to remain with GES and the other path is to go with Freeman and get sued and go broke. It is a lot easier to get out of an offer letter than a non-compete agreement.” Id. ↑
22. See id. ↑
23. See id. at *5. ↑
24. Ridgeway, after all, had left a Louisiana-based sales job for another employer in Louisiana; his only contact with Michigan was that his former employer was headquartered there. See Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 386–87, 390 (6th Cir. 2017). By contrast, Shores had lived and worked in Nevada prior to beginning employment with Freeman. See Freeman Expositions, 2017 WL 1488269, at *1. ↑
25. See Freeman Expositions, 2017 WL 1488269, at *5. ↑
26. Id. at *5. ↑
27. Id. ↑
28. See id. at *1, *3. The court also declined to dismiss a claim by Freeman for interference with its contractual relationship with Shores. See id. at *8. ↑
29. As early as 1993, one commentator observed that the issue of choice-of-law enforcement in difficult cases “has generated a raft of judicial decisions marked by confusion, temerity, and vacillation.” Kirt O’Neill, Note, Contractual Choice of Law: The Case for a New Determination of Full Faith and Credit Limitations, 71 Tex. L. Rev. 1019, 1020 (1993). ↑
30. See Catherine L. Fisk, Reflections on The New Psychological Contract and the Ownership of Human Capital, 34 Conn. L. Rev
    

    .

    765, 782–83 (2002). ↑

31. See Larry E. Ribstein, From Efficiency to Politics in Contractual Choice of Law, 37 Ga. L. Rev. 363, 367 (2003) [hereinafter Ribstein, Efficiency] (noting that “the number of cases involving contractual choice is increasing significantly over time”). ↑
32. See Norman D. Bishara & David Orozco, Using the Resource-Based Theory To Determine Covenant Not To Compete Legitimacy, 87 Ind. L.J. 979, 980, 984–85 (2012) (discussing the need to adapt the law governing noncompetes in a world where a “trend toward the greater use of noncompetes is occurring when . . . geographic boundaries are becoming less important to economic activity”); Gillian Lester & Elizabeth Ryan, Choice of Law and Employee Restrictive Covenants: An American Perspective, 31 Comp. Lab. L. & Pol’y J. 389, 389 (2010) (noting that more mobile employees and more geographically dispersed employers have contributed to a rise in noncompete litigation). ↑
33.  See Steven Greenhouse, Noncompete Clauses Increasingly Pop Up in
    Array of Jobs, N.Y. Times (June 8, 2014), https://www.nytimes.com/2014/06/09/­business/­noncompete-clauses-increasingly-pop-up-in-array-of-jobs.html?r=0 [https://perma.cc/4KQY-H9PV]. ↑
34. See id. ↑
35. See Matt O’Brien, Even Janitors Have Noncompetes Now. Nobody Is Safe., Wash. Post. (Oct. 18, 2018), https://www.washingtonpost.com/business/2018/10/­18/even-janitors-have-noncompetes-now-nobody-is-safe/?utm_term=.c316c5c­61­487 [https://perma.cc/W7FU-S6M6]. ↑
36. See id. ↑
37. See id. (describing suit by employer against janitor that was dropped following media coverage). ↑
38. See Stuart Lichten & Eric M. Fink, “Just When I Thought I Was Out . . . .”: Post-Employment Repayment Obligations, 25 Wash. & Lee J. Civ. Rts. & Soc.
    Just. 51, 54 (2018) (describing growth of such provisions’ popularity). These arrangements have recently attracted national publicity for, among other things, the threat they may pose to journalistic independence. See id. at 54–55. Many Sinclair Broadcasting employees, for example, chose to read “politically charged” statements on air, despite their personal reservations, because of worries about triggering repayment clauses in their contracts. Id. The statements were described as “prepackaged reports reflecting conservative views.” Id. at 54 n.15 (internal quotation marks and citation omitted). ↑
39. See id. at 68–69, 77–78 (noting differences in particular between the law of California and of other states on the enforceability of post-employment repayment obligations). ↑
40. It is difficult to assess exactly how common choice-of-law clauses are in such agreements because employment contracts are often between private parties. See Norman D. Bishara, Kenneth J. Martin & Randall S. Thomas, An Empirical Analysis of Noncompetition Clauses and Other Restrictive Postemployment Covenants, 68 Vand. L. Rev. 1, 7 (2015). However, it is reasonable to speculate that employers frequently include such provisions, given their popularity in the noncompete context and the uncertainty of the law in this area. For an example of one such case, see Willis Re Inc. v. Hearn, 200 F. Supp. 3d 540, 545–47 (E.D. Pa. 2016) (discussing contractual choice-of-law clause in dispute involving repayment of a retention bonus following employee’s departure for a competitor). ↑
41. See Erin Ann O’Hara, Opting Out of Regulation: A Public Choice Analysis of Contractual Choice of Law, 53 Vand. L. Rev. 1551, 1563–64 (2000) [hereinafter O’Hara, Opting] (noting that, in contrast to the approach of the First Restatement, courts have transitioned to “almost uniformly enforc[ing] choice-of-law provisions that enable the parties to evade state usury laws”). The Second Restatement likely played a role in this acceptance by including a fairly liberal usury provision that operates even in the absence of a choice-of-law clause, providing that a given interest rate will not be invalidated on usury grounds if it is “permissible in a state to which the contract has a substantial relationship” and “not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law.” Second Restatement § 203. The “substantial relationship” requirement is fairly easily satisfied—if, for example, the applicable rate is that of the lender’s place of business or the place where the loan is to be repaid. See Robert Allen Sedler, The Contracts Provisions of the Restatement (Second): An Analysis and a Critique, 72 Colum. L. Rev. 279, 315–18 (1972). ↑
42. See Fleetwood Servs., LLC v. Complete Bus. Sols. Grp., 374 F. Supp. 3d 361, 372 (E.D. Pa. 2019) (finding that, despite parties’ choice of Pennsylvania law, Texas law applied because Texas had the most significant relationship to the dispute and “applying Pennsylvania law would violate a fundamental public policy of Texas, namely its antipathy to high interest rates” (internal quotation marks omitted)); Am. Equities Grp. v. Ahava Dairy Prods. Corp., No. 01 Civ.5207, 2004 WL 870260, at *7–9 (S.D.N.Y. Apr. 23, 2004) (declining to enforce a choice of New Jersey law in a case involving a usury defense on the same grounds); Am. Express Travel Related Servs. Co. v. Assih, 893 N.Y.S.2d 438, 445–46 (N.Y. Civ. Ct. 2009) (declining to enforce a choice of Utah law in action to collect credit card payments based on New York’s materially greater interest and “strong public policy against interest rates which are excessive”); see also TriBar Op. Comm., Supp. Report: Opinions on Chosen-Law Provisions Under the Restatement of Conflict of Laws, 68 Bus. Law. 1161, 1161–62, 1162 n.2 (2013) (discussing analysis of this issue in New York courts and noting that it deviates somewhat from the orthodox Second Restatement approach). ↑
43. See William J. Moon, Contracting Out of Public Law, 55 Harv. J. on Legis
    

    .

    323, 347 (2018) (“[C]ourts have consistently refused to enforce choice-of-law clauses in the context of . . . consumer contracts.”). In some cases, this refusal has been based on concerns about the substantive content of the chosen law. See, e.g., Masters v. DirecTV, Inc., Nos. 08-55825 & 08–55830, 2009 WL 4885132, at *1 (9th Cir. Nov. 19, 2009) (holding that California law, rather than the parties’ chosen law, applied to consumer class action waivers because such waivers were contrary to a fundamental policy in California); see also William J. Woodward Jr., Legal Uncertainty and Aberrant Contracts: The Choice of Law Clause, 89 Chi.-Kent L. Rev. 197, 207–09 (2014) [hereinafter Woodward, Aberrant] (discussing case law on enforcement of choice-of-law clauses in questions regarding the applicability of state statutes that convert one-way attorney’s-fee-shifting provisions into two-way provisions). Procedural concerns about information asymmetry and bargaining power disparities in form consumer contracts may also weigh in favor of non-enforcement. See generally Giesela Rühl, Consumer Protection in Choice of Law, 44 Cornell Int’l L.J. 569 (2011) (considering these issues and advocating for European-style limits on choice of law in consumer contracts). ↑

44. See Andrew Elmore, Franchise Regulation for the Fissured Economy, 86 Geo. Wash. L. Rev. 907, 954 n.229 (2018) (“States prohibit choice of law provisions and waivers in franchise agreements to contract around state franchise law obligations, which will foreclose evasions of a liability through waiver.”). For example, in Wright-Moore Corp. v. Ricoh Corp., the court found that Indiana law applied, rather than the parties’ chosen law of New York, because Indiana had a materially greater interest in the dispute and waiver of a franchisee’s rights was against Indiana’s fundamental policy. 908 F.2d 128, 132–33 (7th Cir. 1990). ↑
45. See, e.g., In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 1169–70 (N.D. Cal. 2016) (concluding that a California choice-of-law provision could not be enforced where “California has not legislatively recognized a right to privacy in personal biometric data and has not implemented any specific protections for that right” and biometric data protection was a fundamental policy in Illinois, the state of the most significant relationship). ↑
46. See J. Kelly Barnes, Telemedicine: A Conflict of Laws Problem Waiting To Happen—How Will Interstate and International Claims Be Decided?, 28 Hous. J. Int’l L. 491, 526–28 (2006) (discussing potential enforceability of choice-of-law clauses in the context of telemedicine). ↑
47. See O’Hara, Opting, supra note 40, at 1564–65 (“Antenuptial agreements are also incorporating choice-of-law provisions with mounting, albeit tentative, judicial support.”); see also John F. Coyle, A Short History of the Choice-of-Law Clause, 91 Colo. L. Rev. 1147, 1162–63, 1162 n.42 (2020) (noting that an example of such a clause exists as far back as 1874). ↑
48. See Linda J. Ravdin, Premarital Agreements and the Migratory Same-Sex Couple, 48 Fam. L.Q. 397, 406 (2014). ↑
49. See, e.g., Hodas v. Morin, 814 N.E.2d 320, 325–26 (Mass. 2004) (applying Section 187 of the Second Restatement to determine that a surrogacy agreement was valid and finding that no state other than the state of the chosen law, Massachusetts, clearly had the “materially greater” relationship to the dispute). Martha A. Field summarizes the manifold approaches states take toward surrogacy contracts, including fairly broad enforcement, enforcement provided certain requirements are met, toleration without explicitly regulating the subject, and criminalizing paid surrogacy. See Martha A. Field, Compensated Surrogacy, 89 Wash. L. Rev. 1155, 1161–65 (2014). Parties to such contracts have sometimes selected the law of a state hospitable to surrogacy, clauses that courts have enforced in some cases “notwithstanding manipulated contacts with the selected state and strong anti-surrogacy policies in the gestational carrier’s domicile.” Susan Frelich Appleton, Leaving Home? Domicile, Family, and Gender, 47 U.C. Davis L. Rev. 1453, 1512 (2014). Parties, however, cannot count on such a result, meaning that “the safest approach [for parties to a surrogacy contract] is to do something substantial in connection with the surrogacy arrangement in that state beyond just choosing its law.” See Joseph F. Morrissey, Surrogacy: The Process, the Law, and the Contracts, 51 Willamette L. Rev. 459, 509 (2015) (also noting that “courts may not honor the choice-of-law provision” in the absence of a substantial contact such as “using a clinic in [the] state [of the chosen law], or using an agency, surrogate or egg donor from that state”). ↑
50. See supra note 23 and accompanying text. ↑
51. See Woodward, Aberrant, supra note 42, at 208–09 (discussing the uncertainty created by the “fact-based and hopelessly uncertain” analysis under Section 187). ↑
52. See infra notes 89–94 and accompanying text. ↑
53. See infra Subsection II.B.3. ↑
54.  See David A. Linehan, Due Process Denied: The Forgotten Constitutional Limits on Choice of Law in the Enforcement of Employee Covenants Not To Compete, 2012 Utah L. Rev. 209, 213 (positing that courts, rather than respecting relevant constitutional constraints, “expansively apply their own restrictive rules against noncompetes to virtually any dispute tried within their borders”). ↑
55.  See Timothy P. Glynn, Interjurisdictional Competition in Enforcing Non-competition Agreements: Regulatory Risk Management and the Race to the Bottom, 65 Wash. & Lee L. Rev. 1381, 1386–87 (2008) (describing and positing the likely future growth of a phenomenon whereby states seek to export their employer-friendly policies extraterritorially by broadly enforcing both noncompetes and choice-of-law clauses). ↑
56. See Linehan, supra note 53, at 212 (arguing that courts have applied their choice-of-law principles in noncompete cases in a way that “fail[s] to respect due process constraints on their power to prefer their own laws to those of sister states”). ↑
57. See id. at 211. ↑
58.  See, e.g., Lawrence J. La Sala, Note, Partner Bankruptcy and Partnership Dissolution: Protecting the Terms of the Contract and Ensuring Predictability, 59 Fordham L. Rev. 619, 643 n.135 (1991) (“Because parties normally will not enter into a contract if they are unable to foresee accurately their rights and liabilities under the contract, predictability is a prime objective of contract law.”). ↑
59.  See Glynn, supra note 54, at 1385 (calling attention to “the rise of interjurisdictional disputes involving [noncompete] enforcement”). ↑
60.  See, e.g., Woodward, Aberrant, supra note 42, at 212 (noting that “many rational clients will forego using a lawyer in a small claim or defense if they risk paying their lawyer more (probably far more) than the claim or defense is worth”). ↑
61.  See O’Hara, Opting, supra note 40, at 1566 (“Unfortunately, however, enforcement of these clauses often turns on an ex post race to judgment.”); see also Viva R. Moffat, Making Non-Competes Unenforceable, 54 Ariz. L. Rev
    

    .

    939, 959 (2012) (noting that disparities in enforcement of both choice-of-law clauses and noncompetes lead to a situation in which both parties “race to the courthouse in an effort to have the jurisdiction with the more favorable law hear the case”). A widely invoked example of this situation is the litigation underlying Advanced Bionics Corp. v. Medtronic, Inc., in which parallel proceedings in Minnesota and California considered the same noncompete but arrived at different outcomes. 59 P.3d 231 (Cal. 2002) (analyzing both Minnesota and California court proceedings). The two courts each ultimately issued contradictory injunctions forbidding the parties from proceeding in the other court, a standoff only resolved when the California Supreme Court ultimately gave way and dissolved the Californian lower court’s injunction. See id. at 237–38; see also Moffat, supra note 60, at 960–63 (describing the case’s procedural history in detail). ↑

62. See infra notes 130–34 and accompanying text. ↑
63. See infra notes 155–58 and accompanying text. ↑
64. See Second Restatement § 187(2) (delineating a three-pronged exception to the general policy of enforcement). ↑
65. See, e.g., Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 391 (6th Cir. 2017) (finding “no reason to disturb the parties’ choice of Michigan law” with respect to a noncompete where no state had a materially greater interest than Michigan). ↑
66. See infra Subsection II.B.3. ↑
67. See Moon, supra note 42, at 325. ↑
68. Notably, Larry Ribstein has argued that courts should “enforce express written choice-of-law clauses notwithstanding common law or statutory restrictions on enforcement, except when the clause is explicitly prohibited by a state where a contracting party resides and no party resides in the designated state.” Ribstein, Efficiency, supra note 30, at 368. Elsewhere, Erin A. O’Hara and Ribstein advocate for a somewhat similar approach under which “choice-maximizing rules proposed in this Article operate as default rules that legislatures can overrule by explicit statutes where necessary to preserve their power to legislate effectively.” Erin A. O’Hara & Larry E. Ribstein, From Politics to Efficiency in Choice of Law, 67 U. Chi. L. Rev.
    

     

    1151, 1153 (2000). In contrast to O’Hara and Ribstein, this Article’s central focus in reforming contractual choice of law is not on legislative involvement, although it does argue that a legislative role in defining areas of significant policy is desirable. See infra notes 269–70 and accompanying text. Rather, this Article argues that targeted and non-targeted choice-of-law clauses are fundamentally different and require distinct treatment. ↑

69. See infra Section III.A. ↑
70. See infra Section III.B. ↑

The post Substance-Targeted Choice-of-Law Clauses first appeared on Virginia Law Review.

This Comment does both. Miller/Cherry adopted a narrow understanding of the political question doctrine and instead embraced a robust vision of judicial review which closely resembles that of famed mid-century law professor Herbert Wechsler. The U.S. Supreme Court’s recent decision in Rucho v. Common Cause, however, took the opposite approach. Where Miller/Cherry offered a full-throated Wechslerian defense of the judiciary’s obligation to police constitutional constraints, Rucho channeled Wechsler’s contemporary and frequent interlocutor Alexander Bickel. Holding that challenges to partisan gerrymandering are not justiciable, Rucho, following Bickel, emphasized institutional humility and the need for courts to act cautiously in light of the “counter-majoritarian difficulty.”

Miller/Cherry and Rucho thus continue the great debate between Wechsler and Bickel, offering contradictory answers to the same foundational questions. Read together, they present a fascinating and transatlantic juxtaposition, illuminating key questions about the political question doctrine, judicial review, and the proper role of the courts.

Introduction

On September 24, 2019, the Supreme Court of the United Kingdom (UKSC) issued its decision in R (Miller) v. Prime Minister (Miller/Cherry),¹ 1.R (Miller) v. Prime Minister (Miller/Cherry) [2019] UKSC 41 (appeals taken from Eng. & Scot.). The case goes by many names in its nascent scholarly treatment, including the delightful, if presumptuously historical, “Case of Prorogations.” E.g., Paul Daly, Talking About the Case of Prorogations,Admin. L. Matters (Sept. 27, 2019), https://www.administrativelawmatters.com/blog/2019/09/27/talking-about-the-case-of-prorogations/ [https://perma.cc/8U7K-JXL3]. In order to avoid confusion with the lower court decision also captioned R(Miller) v. Prime Minister, I will refer to the case as “Miller/Cherry”both in text and in citations.Show More and British politics turned on its head. In an understated oral announcement² 2.For the video of the announcement, see Supreme Court: Suspending Parliament Was Unlawful, Judges Rule,BBC News (Sept. 24, 2019), https://www.bbc.com/news/uk-politics-49810261 [https://perma.cc/5UPG-EV35].Show More and an unadorned written opinion, a unanimous Court held that Prime Minister Boris Johnson’s five-week suspension of Parliament—in Parliamentary jargon, “prorogation”³ 3.For more specifics on prorogation, see infra notes 22–24 and accompanying text.Show More—was unlawful and therefore void. The decision overturned the Prime Minister’s latest gambit in his duel with a recalcitrant House of Commons over “Brexit,” the U.K.’s planned exit from the European Union. Miller/Cherry was immediately controversial, prompting calls for the Prime Minister to resign,⁴ 4.E.g., Karla Adam & William Booth, U.K. Supreme Court Rules Prime Minister Boris Johnson Suspended Parliament Illegally, Wash. Post (Sept. 24, 2019, 2:00 PM), https://www.washingtonpost.com/world/europe/britains-supreme-court-set-to-rule-on-boris-johnsons-decision-to-suspend-parliament/2019/09/24/af719d70-dd9e-11e9-be7f-4cc85017c36f_story.html [https://perma.cc/U8EH-B29V].Show More jubilant declarations that the rule of law had been vindicated,⁵ 5.See Owen Bowcott, Ben Quinn & Severin Carrell, Johnson’s Suspension of Parliament Unlawful, Supreme Court Rules, Guardian (Sept. 24, 2019), https://www.theguardian.com/­law/2019/sep/24/boris-johnsons-suspension-of-parliament-unlawful-supreme-court-rules-prorogue [https://perma.cc/9ED9-B9V2].Show More and accusations that the Court had perpetrated a “constitutional coup.”⁶ 6.E.g.,Jonathan Ames & Chris Smyth, Supreme Court Ruling: Senior Judges Could Face US-Style Grillings, Times (Sept. 26, 2019), https://www.thetimes.co.uk/article/supreme-court-ruling-senior-judges-could-face-us-style-grillings-mh22znd5j [https://perma.cc/G6TV-ASYF] (quoting prominent pro-Brexit MP Jacob Rees-Mogg).Show More

Although many British commentators have analyzed and criticized Miller/Cherry since its decision,⁷ 7.Perhaps most notable was a vehement and extensive criticism published only four days after the decision by John Finnis, a professor at Oxford and the former doctoral advisor to U.S. Supreme Court Justice Neil Gorsuch. SeeJohn Finnis, Pol’y Exchange, The Unconstitutionality of the Supreme Court’s Prorogation Judgment (Sept. 28, 2019), https://policyexchange.org.uk/wp-content/uploads/2019/10/The-unconstitutionality-of-the-Supreme-Courts-prorogation-judgment.pdf [https://perma.cc/9RS4-FGFU]. Other critics of varying degrees of vehemence abound in Anglophone academic circles. E.g., Martin Loughlin, Pol’y Exchange, The Case of Prorogation (Oct. 15, 2019), https://policyexchange.org.uk/publication/the-case-of-prorogation/ [https://perma.cc/9E8D-FXC9]; Steven Spadijer, Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/steven-spadijer-miller-no-2-orthodoxy-as-hersey-hersey-as-orthodoxy/ [https://perma.cc/DQ2T-W­2RY]; Paul Yowell, Is Miller (No 2) the UK’s Bush v Gore?, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/paul-yowell-is-miller-no-2-the-uks-bu­sh-v-gore/ [https://perma.cc/A8GJ-ZZWN].The decision has also had its defenders. E.g., Nick Barber, Constitutional Hardball and Justified Development of the Law, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/nick-barber-constitutional-hardball-and-justified-development-of-the-law/ [https://perma.cc/Z3FH-2NV2]; Alison Young, Deftly Guarding the Constitution, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/­alison-young-deftly-guarding-the-constitution/ [https://perma.cc/R6JP-Z4J3] (arguing that Miller/Cherry “demonstrates a delicate balance between law and politics, affirming the Supreme Court’s role as the guardian of the UK’s constitution”). For a more extensive list of pieces commenting on Miller/Cherry, see Paul Craig, The Supreme Court, Prorogation and Constitutional Principle, Pub. L. (forthcoming) (manuscript at 1–2 nn.4–8), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3477487 [https://perma.cc/Y6ZR-PB­XD].Show More the case has not received sustained or detailed attention on this side of the Atlantic.⁸ 8.One exception is Sam Shirazi, The U.K.’s Marbury v. Madison: The Prorogation Case and How Courts Can Protect Democracy, 2019 U. Ill. L. Rev. Online 108. Shirazi compares and contrasts Miller/Cherry with Marbury v. Madison and more generally focuses on the salutary role of judicial review in constitutional systems. Id. Shirazi spends little time discussing Miller/Cherry in the context of the political question doctrine, see id. at 113, and only fleetingly connects it to Rucho v. Common Cause, see id. at 118 n.79. See also Gerard N. Magliocca, Judicial Review Comes to Britain, Balkinization (Sept. 24, 2019), https://balkin.blogspot.com/2019/09/judicial-review-comes-to-britain.html [https://perma.cc­/5HUQ-8ZBB] (providing brief summary of Miller/Cherry by an American law professor).Show More This lack of American attention is regrettable. Miller/Cherry holds important lessons for the American lawyer, especially through its striking contrast with recent decisions of the U.S. Supreme Court.

Although nominally about the Prime Minister’s prorogation of Parliament, Miller/Cherry was really about justiciability: could (or should) the Court decide the case in the first place? The UKSC’s answer to this question not only took sides in a long-standing debate about the proper role for courts in reviewing government action—it also did so in a way directly contrary to the U.S. Supreme Court’s decision three months prior in Rucho v. Common Cause. Whereas Miller/Cherry endorsed a robust judicial role and a correspondingly narrow political question doctrine—a perspective associated with famed mid-century academic Herbert Wechsler—Rucho emphasized constraint on judicial discretion and expressed a concern for institutional legitimacy, two hallmarks of the approach of Professor Alexander Bickel.

Although decided on different sides of the Atlantic, these two cases are fundamentally about the same issue.⁹ 9.There are undoubtedly differences between the broader legal regimes of Britain and the United States which affect how courts in each country think about justiciability. For instance, Britain’s lack of a written constitution means that British courts, unlike American courts, generally would not look to constitutional text as a constraint on judicial discretion. Cf.infranotes 104–08 and accompanying text (discussing this American tendency). This Comment does not—and does not need to—argue that the justiciability inquiry in the two nations is identical. Rather, because the political question doctrine’s basic argumentative contours are shared between the two nations, see infra Section I.B, Miller/Cherry and Ruchocan fruitfully be read together.Show More Far from merely being a curious case from a foreign jurisdiction, Miller/Cherry lays bare the tensions inherent in the political question doctrine and in judicial review more broadly. Especially through its juxtaposition with Rucho v. Common Cause, Miller/Cherry provides an important perspective on judicial review and the judicial office in a time of heightened attention to the proper role of the courts.

1. * J.D., University of Virginia School of Law, 2020; M.A. (History), University of Virginia, 2020. My thanks to Charles Barzun, Justin Aimonetti, Clay Phillips, and especially Hanaa Khan for offering helpful thoughts on previous drafts of this Comment; to Ray Gans, Andrew Kintner, and everyone else at the Virginia Law Review who helped edit and publish it; and to my fiancée Madeline Roth for her constant and loving support. ↑
2. R (Miller) v. Prime Minister (Miller/Cherry) [2019] UKSC 41 (appeals taken from Eng. & Scot.). The case goes by many names in its nascent scholarly treatment, including
   the delightful, if presumptuously historical, “Case of Prorogations.” E.g., Paul Daly,
   Talking About the Case of Prorogations, Admin. L. Matters (Sept. 27, 2019), https://www.administrativelawmatters.com/blog/2019/09/27/talking-about-the-case-of-prorogations/ [https://perma.cc/8U7K-JXL3]. In order to avoid confusion with the lower court decision also captioned R(Miller) v. Prime Minister, I will refer to the case as “Miller/Cherry” both in text and in citations. ↑
3. For the video of the announcement, see Supreme Court: Suspending Parliament Was Unlawful, Judges Rule, BBC News (Sept. 24, 2019), https://www.bbc.com/news/uk-politics-49810261 [https://perma.cc/5UPG-EV35]. ↑
4. For more specifics on prorogation, see infra notes 22–24 and accompanying text. ↑
5. E.g., Karla Adam & William Booth, U.K. Supreme Court Rules Prime Minister Boris Johnson Suspended Parliament Illegally, Wash. Post (Sept. 24, 2019, 2:00 PM), https://www.washingtonpost.com/world/europe/britains-supreme-court-set-to-rule-on-boris-johnsons-decision-to-suspend-parliament/2019/09/24/af719d70-dd9e-11e9-be7f-4cc85017c36f_story.html [https://perma.cc/U8EH-B29V]. ↑
6. See Owen Bowcott, Ben Quinn & Severin Carrell, Johnson’s Suspension of Parliament Unlawful, Supreme Court Rules, Guardian (Sept. 24, 2019), https://www.theguardian.com/­law/2019/sep/24/boris-johnsons-suspension-of-parliament-unlawful-supreme-court-rules-prorogue [https://perma.cc/9ED9-B9V2]. ↑
7. E.g., Jonathan Ames & Chris Smyth, Supreme Court Ruling: Senior Judges Could Face US-Style Grillings, Times (Sept. 26, 2019), https://www.thetimes.co.uk/article/supreme-court-ruling-senior-judges-could-face-us-style-grillings-mh22znd5j [https://perma.cc/G6TV-ASYF] (quoting prominent pro-Brexit MP Jacob Rees-Mogg). ↑
8. Perhaps most notable was a vehement and extensive criticism published only four days after the decision by John Finnis, a professor at Oxford and the former doctoral advisor to U.S. Supreme Court Justice Neil Gorsuch. See John Finnis, Pol’y Exchange, The Unconstitutionality of the Supreme Court’s Prorogation Judgment (Sept. 28, 2019), https://policyexchange.org.uk/wp-content/uploads/2019/10/The-unconstitutionality-of-the-Supreme-Courts-prorogation-judgment.pdf [https://perma.cc/9RS4-FGFU]. Other critics of varying degrees of vehemence abound in Anglophone academic circles. E.g., Martin Loughlin, Pol’y Exchange, The Case of Prorogation (Oct. 15, 2019), https://policyexchange.org.uk/publication/the-case-of-prorogation/ [https://perma.cc/9E8D-FXC9]; Steven Spadijer, Miller No 2: Orthodoxy as Heresy, Heresy as Orthodoxy, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/steven-
   spadijer-miller-no-2-orthodoxy-as-hersey-hersey-as-orthodoxy/ [https://perma.cc/DQ2T-W­2RY]; Paul Yowell, Is Miller (No 2) the UK’s Bush v Gore?, UK Const. L. Ass’n: Blog (Oct. 7, 2019), https://ukconstitutionallaw.org/2019/10/07/paul-yowell-is-miller-no-2-the-uks-bu­sh-v-gore/ [https://perma.cc/A8GJ-ZZWN].

   The decision has also had its defenders. E.g., Nick Barber, Constitutional Hardball and Justified Development of the Law, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/nick-barber-constitutional-hardball-and-justified-development-of-the-law/ [https://perma.cc/Z3FH-2NV2]; Alison Young, Deftly Guarding the Constitution, Jud. Power Project (Sept. 29, 2019), https://judicialpowerproject.org.uk/­alison-young-deftly-guarding-the-constitution/ [https://perma.cc/R6JP-Z4J3] (arguing that Miller/Cherry “demonstrates a delicate balance between law and politics, affirming the Supreme Court’s role as the guardian of the UK’s constitution”). For a more extensive list of pieces commenting on Miller/Cherry, see Paul Craig, The Supreme Court, Prorogation
   and Constitutional Principle, Pub. L. (forthcoming) (manuscript at 1–2 nn.4–8), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3477487 [https://perma.cc/Y6ZR-PB­XD]. ↑

9. One exception is Sam Shirazi, The U.K.’s Marbury v. Madison: The Prorogation Case and How Courts Can Protect Democracy, 2019 U. Ill. L. Rev. Online 108. Shirazi compares and contrasts Miller/Cherry with Marbury v. Madison and more generally focuses on the salutary role of judicial review in constitutional systems. Id. Shirazi spends little time discussing Miller/Cherry in the context of the political question doctrine, see id. at 113, and only fleetingly connects it to Rucho v. Common Cause, see id. at 118 n.79. See also Gerard N. Magliocca, Judicial Review Comes to Britain, Balkinization (Sept. 24, 2019), https://balkin.blogspot.com/2019/09/judicial-review-comes-to-britain.html [https://perma.cc­/5HUQ-8ZBB] (providing brief summary of Miller/Cherry by an American law professor). ↑
10. There are undoubtedly differences between the broader legal regimes of Britain and the United States which affect how courts in each country think about justiciability. For instance, Britain’s lack of a written constitution means that British courts, unlike American courts, generally would not look to constitutional text as a constraint on judicial discretion. Cf. infra notes 104–08 and accompanying text (discussing this American tendency). This Comment does not—and does not need to—argue that the justiciability inquiry in the two nations is identical. Rather, because the political question doctrine’s basic argumentative contours are shared between the two nations, see infra Section I.B, Miller/Cherry and Rucho can fruitfully be read together. ↑

The post Transatlantic Perspectives on the Political Question Doctrine first appeared on Virginia Law Review.

And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually “wins” in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. Questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decision making, the weight accorded the position of any given decision maker, and the context in which the decision is made together shape the ultimate position the President takes.

This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying “process controls,” as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.

Introduction

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the line between Congress and the President’s formal authority is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security.

But presidential primacy is not the end of the story. While the President might wield far-reaching control over the nation’s foreign affairs and national security policies, Congress can shape the President’s position, and thus the foreign policy of the United States, without necessarily mandating the substance of that policy itself.

This Article explores and critiques the foreign policy role Congress can—and does—play through structuring and rearranging the relative powers of internal executive branch actors and the processes they take to reach their decisions, in order to influence and even direct the President’s ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency simply by manipulating its internal workings.

A recent example illustrates the point. In 2017, the newly elected President threatened a trade war with China, Mexico, Canada and other longtime allies and competitors around the globe, proposing high tariffs on imports of steel and specific products, such as foreign-made vehicles.¹ 1.The President’s 2017 Trade Policy Agenda,Office of the U.S. Trade Representative (2017), https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/Chapter%20I%2­0-%20The%20President%27s%20Trade%20Policy%20Agenda.pdf [https://perma.cc/GV4T-6289]; Bob Bryan & Elena Holodny, Trump’s Considering a Tariff That Could Put the Economy on a Path to ‘Global Recession,’ Business Insider (June 30, 2017, 10:24 AM), https://www.businessinsider.com/trump-steel-tariff-china-germany-japan-global-recession-2017-6 [https://perma.cc/S2QY-YNL8]; Peter S. Goodman, Trump’s Trade War May Have Already Begun, N.Y. Times (Jan. 30, 2017), https://www.nytimes.com/2017/01/30­/business/economy/trumps-mexico-china-tariff-trade.html [https://perma.cc/M5WH-PMVR].Show More His own political party controlled the House and Senate, but there was little appetite in Congress for raising tariffs. So he turned inward, looking to his own cabinet to effectuate his plans. Government lawyers dusted off a rarely-used delegation from Congress, Section 232 of the Trade Expansion Act of 1962, which permits the President to adjust restrictions on imports when the Secretary of Commerce finds that they impose a threat to national security.² 2.19 U.S.C. § 1862(b)–(c) (2012). Prior to the Trump Presidency, presidential authority to impose tariffs had only been exercised a total of five times across the authority’s sixty-four-year existence that began with a temporary authorization in 1955. Rachel F. Fefer et al., Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress app. b, at 35 (2018).Show More

With his statutory authority contingent upon meeting this procedural requirement, the President demanded that the Commerce Secretary consider the effects on national security of steel and aluminum imports, asserting meanwhile, in an expansive interpretation of this statutory exception, that the nation’s economic welfare is itself a matter of national security.³ 3.Memorandum on Aluminum Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 284 (Apr. 27, 2017); Memorandum on Steel Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 259 (Apr. 20, 2017).Show More The Secretary of Commerce, following the statute’s requirements, consulted with the Secretary of Defense, who told him, in a diplomatically-worded missive, that the adjustments proposed by Commerce were in fact unnecessary for national security, and could have negative consequences for U.S. relationships with important allies.⁴ 4.Letter from James N. Mattis, Sec’y of Def., to Wilbur L. Ross Jr., Sec’y of Commerce (2018), https://www.commerce.gov/sites/default/files/department_of_defense_memo_respo­nse_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/HA7Y-UWL6] [hereinafter Letter from Mattis to Ross] (“As noted in both Section 232 reports, however, the U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”).Show More Those steps taken, and despite the Defense Secretary’s warning, the President moved ahead on the Commerce Secretary’s report, imposing additional tariffs on both steel and aluminum imports.⁵ 5.Fefer et al., supra note 2, at 7. The President also negotiated exceptions on a country-by-country basis. Id. at 7–9.Show More

Members of the President’s own party in Congress issued unusual rebukes of the President’s action, denouncing the measures as a “tax hike on American manufacturers, workers and consumers,”⁶ 6.Press Release, U.S. Senate Comm. on Fin., Hatch Statement on Steel, Aluminum Tariffs (Mar. 8, 2018), https://www.finance.senate.gov/chairmans-news/hatch-statement-on-steel-al­uminum-tariffs [https://perma.cc/42YF-KMX8].Show More asking the President to dial back the global tariffs,⁷ 7.Vicki Needham, Ways and Means Sets Hearing on Trump’s Tariffs, The Hill(Apr. 5, 2018, 5:17 PM),https://thehill.com/policy/finance/381875-ways-and-means-set-hearing-on-trump­s-tariffs [https://perma.cc/AN9E-98LU].Show More and most recently passing legislation mandating a report from the Secretary of Commerce.⁸ 8.Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 112, 133 Stat. 2317, 2395–96 (2019) (requiring publication of the Secretary of Commerce’s findings in automobiles and automotive parts market within thirty days of enactment). The Administration has thus far resisted complying with this provision. SeeSteven A. Engel, Office of Legal Counsel, Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security 1–2 (Jan. 17, 2020), https://www.justice.gov/olc/­opinion/file/1236426/download [https://perma.cc/YYC3-AHW6] (arguing that President may assert executive privilege over Secretary of Commerce’s automobile and automobile parts report).Show More Congress did not, however, exercise its power to withdraw the President’s authority to adjust imports, an authority that Congress itself had given to the President through increasingly expansive delegations since the 1930s.⁹ 9.See infra Subsection II.C.1 (detailing historical development of the national security justification for imposing tariffs).Show More

Yet congressional reticence to reassert dominance over trade policy is not the end of the story. There is another tool of control that members of Congress might deploy and which, despite increasingly relinquishing power to the President, Congress has used several times before in order to influence the direction of U.S. trade policy. And that is to restructure the decision-making process inside the executive branch in order to preference decision makers and processes more likely to favor their preferred outcomes.

Indeed, members of Congress have introduced several bills seeking to do just that. In 2018 and 2019, several bipartisan groups of lawmakers introduced bills in both the House and Senate to retract from the Secretary of Commerce the power to invoke a national security justification for raising tariffs on foreign imports.¹⁰ 10.Trade Security Act of 2019, S. 365, 116th Cong. (2019); Bicameral Congressional Trade Authority Act of 2019, S. 287, 116th Cong. (2019); H.R. 6923, 115th Cong. § 4 (2018); S. 3329, 115th Cong. § 2 (2018).Show More The bills would grant that power instead to the Secretary of Defense—the very cabinet secretary who had, as the bill proponents surely noticed, criticized the Commerce Secretary’s proposed indiscriminate tariffs.¹¹ 11.See Letter from Mattis to Ross, supranote 4. Former Defense Secretary Mattis resigned between the 2018 and 2019 bill proposals, but press releases accompanying the 2019 proposals, such as one stating the purpose was to counter “misuse” of the national security justification and “to ensure that the statute is used for genuine national security purposes,” suggest that bill proponents view the Defense Department’s constraining effect on the use of the national security justification as departmental rather than unique to Mattis. See Press Release, Sen. Rob Portman, Portman, Jones, Ernst, Alexander, Feinstein, Fischer, Sinema & Young Introduce Trade Security Act to Reform National Security Tariff Process (Feb. 6, 2019), https://www.portman.senate.gov/newsroom/press-releases/portman-jones-ernst-alexa­nder-feinstein-fischer-sinema-young-introduce [https://perma.cc/4DQZ-AVE4] [hereinafter Press Release, Sen. Rob Portman].Show More Such micro-management over the executive branch decision maker is not an untested tool for Congress. In fact, the bills would make the Office of the Defense Secretary at least the sixth distinct congressionally designated executive branch office to wield that authority since Congress began delegating away its power over the nation’s trade policy.¹² 12.See generally Edward E. Groves, A Brief History of the 1988 National Security Amendments, 20 Law & Pol’y Int’l Bus. 589, 590–93 (1989) (detailing the ways in which Congress has empowered other agencies to conduct trade policy). The executive agents who have been tasked with fulfilling the requirements of Section 232 include: Director of Defense Mobilization (1955), Director of the Office of Defense and Civilian Mobilization (1958), Director of the Office of Emergency Planning (1962), Director of the Office of Emergency Preparedness (1968), Secretary of the Treasury (1974), and Secretary of Commerce (1979). Id.Show More

Why might members of Congress who want to challenge the President’s trade policies deploy an indirect tool of micro-management over the executive branch’s decision-making process, rather than simply direct the policy themselves through substantive legislation? And could such an indirect tool have any real effect?

In fact, indirect tools such as the choice of executive branch decision maker or the restructuring of internal decision-making processes can entirely redirect the President’s policy outcomes, and members of Congress often have reason to prefer these mechanisms to more direct legislation. Thus, while Congress may defer or even delegate to the President on matters of substantive foreign policy—and while members of Congress may not rest assured that the President will implement their will even when they do mandate substance—Congress may nevertheless shape the nation’s foreign policy through what I term “congressional administration.”¹³ 13.I use this term as a congressional corollary to then-Professor Elena Kagan’s “Presidential Administration,” which she identified as presidential control of the bureaucracy as a means to advance “the President’s own policy and political agenda,” particularly in the face of political obstacles to doing so through other means. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2248 (2001). Professor Jack Beermann uses this term directly, to describe Congress’s ongoing involvement in the “day to day administration of the law.” Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 64 (2006).Show More

Congressional administration, as I define it here, is the management and manipulation of internal executive branch decision-making processes for the purpose of advancing a substantive agenda. Congress has an array of measures that it may deploy to influence the nation’s foreign policy, short of mandating the substance itself. These “process controls” include familiar tools such as agency design and procedural requirements, but they also include the designation and reassignment of decision makers within the executive branch. Each of these may be deployed for different purposes, with different effects and risks, and each may have significant effects on the ultimate policy direction the United States takes.

This Article sits at the intersection of two broad bodies of literature: one on congressional-executive turf wars over foreign affairs and national security, and one on agency design and political control over the bureaucracy. Scholars have long debated the proper constitutional allocation of power between the President and Congress over the direction of the nation’s foreign policy. As a practical matter, however, the conventional wisdom holds that “the President (almost) always wins in foreign affairs.”¹⁴ 14.Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J.1255, 1291 (1988); see also Aaron Wildavsky, The Two Presidencies, 4 Trans-Action 7 (1966) (arguing that presidents typically receive support or, at least, a lack of pushback from Congress on their foreign policy agenda).Show More The reasons for presidential primacy are legion: institutional competence; asymmetrical expertise and information; and more costs than benefits to Congress in engaging. Moreover, many argue that even when Congress does engage directly and substantively on a matter, the President often manages to assert authority to act, either by interpreting his statutory authorities broadly,¹⁵ 15.See Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7–11 (2011) (statement of Harold Koh, Legal Adviser, U.S. Dept. of State); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (arguing that administrative law is sufficiently vague to enable Presidents to act without constraint at the invocation of an emergency, and that this is inevitable).Show More or by claiming a constitutional prerogative to act unilaterally,¹⁶ 16.See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).Show More or even by skirting the legal constraints altogether.¹⁷ 17.For a bit of all three, see Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President, Exec. Office of the President (Aug. 1, 2002), https://www.justice.gov/olc/file/886061/download [https://perma.­cc/AM56-F4TD].Show More

But the fact that the President usually “wins” vis-à-vis Congress does not mean that the position the President ultimately chooses to take is preordained. Nor does it mean that the policy the President ultimately adopts at the end of what is often a long and contentious decision-making process is the one he would have chosen if all possible options were simply laid out before him at the outset. In fact, presidential primacy does not even mean that the policy the President ultimately adopts has actually received the personal sign-off of the President.

Indeed there is another dynamic beyond that of the President-Congress relationship that is essential to understanding foreign policy positioning and is as much of a hotbed for diversity of opinion. This is the multi-faceted, many-headed organism that is the executive branch bureaucracy. That there is a diversity of opinion within the executive branch, especially on matters of foreign policy and national security, should be clear these days to anyone who picks up a newspaper.¹⁸ 18.Or, if this is anachronistic, then to anyone who is on Twitter.Show More That the process for decision making inside the executive branch influences the resulting policies is perhaps less intuitive, particularly to those who envision a unitary executive headed by a willful President with his fingers in every pot. And yet it is so. Furthermore, there exist opportunities for influencing these processes, and thus the resulting policy, from the outside. Of specific relevance here, Congress has robust means at its disposal to shape these processes and thus the resulting decision.

I have written previously about the multiplicity of decision makers, processes, overlapping interests, and conflicting proclivities inside the executive branch, and the potential for external actors to shape the President’s positions by triggering different decision-making pathways.¹⁹ 19.Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L.359, 369–73 (2013) [hereinafter Ingber, Interpretation Catalysts].Show More I focused in prior work on the role of litigants, nongovernmental organizations, and international treaty bodies in prompting different processes and the potential for achieving different outcomes.²⁰ 20.Id.Show More But members of Congress have far greater opportunities than most for triggering and even for restructuring different decision-making pathways, including for designating their preferred internal official as the decider over a given matter.

While executive branch decision making may at times appear opaque from the outside—particularly in the realm of foreign policy and national security—savvy government watchers, scholars, and even members of Congress can often glean a sense of its inner workings: which matters are subject to internal debate, who within the administration may be inclined toward particular policies, and where the pressure points lie for decision making.²¹ 21.In fact, members of Congress often have significant ties to the executive branch both through their own personal relationship to members of the political class within the administration and through staffers’ often deep connections to agencies through prior positions, former colleagues, and the fact that they are repeat players on specific issues. See, e.g., Ashley Deeks, Statutory International Law, 57 Va. J. Int’l L. 263, 296–97 (2018).Show More Actors inclined to lean into these pressure points may therefore find they can influence policy outcomes simply by exerting influence on the shape of executive branch decision making.

Members of Congress have especially potent tools for shaping the process of decision making, through legislation directly creating procedural requirements or designating decision makers, as well as through “soft” mechanisms such as requests for testimony from particular executive branch officials,²² 22.See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 3 (2017) (arguing that Congress has many tools, including both “hard” like appropriations and “soft” like speech, which it underutilizes).Show More all of which can shape and shift presidential priorities, force to a head executive branch decisions, exacerbate internal tensions, or place a thumb on the scale in favor of a particular set of actors engaged in intra-executive branch conflict. Through the use of these process controls, Congress can and does shape the process of executive branch decision making and influence policy without necessarily mandating a particular substantive outcome.

This Article proceeds as follows: Part I first considers scholarly debates over the legal and practical allocation of the foreign affairs power, including the extent to which Congress is able effectively to constrain the President in this sphere. Acknowledging the practical reality of presidential primacy in matters of foreign affairs, it turns to scholarship considering the interaction of Congress with the internal workings of the executive branch bureaucracy. This scholarship largely brackets off the fields of foreign policy and national security, thus bringing insights from administrative law and political science scholarship on political control of the bureaucracy to bear on debates about the allocation of foreign policy power is one contribution of this Article.

Part II introduces and classifies what I term “process controls,” the mechanisms that Congress may deploy to influence the executive branch decision-making process, and through it, the shape of foreign policy. Two types of measures that I include within the term process controls—agency design and the imposition of administrative procedures—have been the subject of significant scholarship in both administrative law and political science.²³ 23.See infra Part II.Show More I therefore consider these each in turn in order to examine their relevance and influence on questions of foreign policy and national security, which are generally excluded from scholarship concerning agency design and administrative procedure.

I devote the majority of this Part, and of the Article, to identifying and analyzing a specific type of process control that has not been the focus of scholarship: the designation of executive branch decision makers. Among the controls I discuss in this Article, Congress wields significant, targeted control over decision making inside the executive branch simply through its choice of the intra-executive decider. This is not a one-off decision; Congress may—and does—reassign the decision maker as new events arise or policy preferences shift. Members of Congress thus may seek to shift a delegation of authority horizontally, from one executive branch official or office to another who may espouse policy preferences more in sync with their own. Or they may allocate power vertically, such as upward toward a high-level official if they are looking to increase political accountability for a decision, or downward to professionals and technocrats when seeking to buffer an issue from partisan politics. Or they may try to diffuse power, perhaps as a means of constraining government action, by requiring consultation among or even certification by several different officials.

Part III considers the implications of Congress turning to process controls to shape foreign policy. It considers when and why Congress might turn to process controls over more direct efforts to mandate substance, and which particular process controls are likely to be effective at implementing particular purposes. This Part also probes the unique constitutional questions raised by congressional administration of foreign policy, as well as the risks at stake—risks to good government and to accountability for decision making.

In considering the influence of internal decision makers and processes on executive branch policy and Congress’s ability to influence its direction through these processes, this Article also adds texture to debates about a “unitary executive” model of executive branch decision making. I discuss the implications of process controls for formal doctrine and the potential for judicial review in Part III. But the influence of process controls on policy I discuss in this paper more broadly provides a functional critique of unitary executive theory. Wherever the line ultimately falls on the formal powers of the President over those within the executive branch, the multiplicity of decision makers and processes will always provide practical opportunities for influencing and even manipulating executive branch policies, from within the executive branch and without.

Congress has ceded significant ground to the President on matters of foreign policy and national security, and continues to do so, often abdicating its responsibility to craft policy or to provide substantive, rigorous oversight. Moreover, Congress has at times lost ground to the President even when it has attempted to assert its prerogative.²⁴ 24.See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015).Show More But this Article nevertheless challenges views of the presidency as completely untethered to law or to congressional constraint. Congress may be overly timid in this space, and it may at times be ineffective. But it can and does exercise its power to shape foreign policy short of mandating substance, and it could deploy these process controls even more instrumentally to impel decision making in its preferred direction. Though the focus here is on foreign policy and national security decision making, this con­sideration of process controls has relevance beyond these spheres, to still-nascent questions of how Congress interacts with the levers and pulleys effectuating decisions inside the executive branch.

1. * Associate Professor of Law, Boston University School of Law, and Senior Fellow, Reiss Center on Law and Security at NYU School of Law. I am indebted to Julian Arato, Jack Beermann, Pam Bookman, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Kathleen Claussen, Ashley Deeks, Kristen Eichensehr, Ryan Goodman, Rebecca Hamilton, Kathryn Kovacs, Harold Krent, Gary Lawson, David Lewis, Henry Monaghan, David Noll, Anne Joseph O’Connell, Nicholas Parrillo, David Pozen, Michael Ramsey, Robert Sloane, Peter Spiro, Kevin Stack, and Matthew Waxman, as well as participants at the Duke-Yale Foreign Relations Law Roundtable, the Vanderbilt International Law Roundtable, the NYU Hauser Colloquium, the Berkeley Law Public Law & Policy Workshop, the Junior International Law Scholars Association Workshop, the AALS New Voices in Administrative Law workshop, the Fourth Annual Administrative Law New Scholarship Roundtable, and faculty workshops at Brooklyn, BU, Cardozo, Hastings, Fordham, and Rutgers Law, for generous discussions and feedback on drafts at many stages of this project. For excellent research assistance, I thank Chloe Aubuchon, James Black, Caroline Lambert, and Tyler Shearer. ↑

2. The President’s 2017 Trade Policy Agenda, Office of the U.S. Trade Representative
   

   (2017)

   , https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/Chapter%20I%2­0-%20The%20President%27s%20Trade%20Policy%20Agenda.pdf [https://perma.cc/GV4T-6289]; Bob Bryan & Elena Holodny, Trump’s Considering a Tariff That Could Put the Economy on a Path to ‘Global Recession,’ Business Insider (June 30, 2017, 10:24 AM), https://www.businessinsider.com/trump-steel-tariff-china-germany-japan-global-recession-2017-6 [https://perma.cc/S2QY-YNL8]; Peter S. Goodman, Trump’s Trade War May Have Already Begun, N.Y. Times

   (

   Jan. 30, 2017), https://www.nytimes.com/2017/01/30­/business/economy/trumps-mexico-china-tariff-trade.html [https://perma.cc/M5WH-PMVR]. ↑

3. 19 U.S.C. § 1862(b)–(c) (2012). Prior to the Trump Presidency, presidential authority to impose tariffs had only been exercised a total of five times across the authority’s sixty-four-year existence that began with a temporary authorization in 1955. Rachel F. Fefer et al., Cong. Research Serv., R45249, Section 232 Investigations: Overview and Issues for Congress app. b, at 35 (2018). ↑
4. Memorandum on Aluminum Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 284 (Apr. 27, 2017); Memorandum on Steel Imports and Threats to National Security, 2017 Daily Comp. Pres. Doc. 259 (Apr. 20, 2017). ↑
5. Letter from James N. Mattis, Sec’y of Def., to Wilbur L. Ross Jr., Sec’y of Commerce (2018), https://www.commerce.gov/sites/default/files/department_of_defense_memo_respo­nse_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/HA7Y-UWL6] [hereinafter Letter from Mattis to Ross] (“As noted in both Section 232 reports, however, the U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production. Therefore, DoD does not believe that the findings in the reports impact the ability of DoD programs to acquire the steel or aluminum necessary to meet national defense requirements.”). ↑
6. Fefer et al., supra note 2, at 7. The President also negotiated exceptions on a country-by-country basis. Id. at 7–9. ↑
7. Press Release, U.S. Senate Comm. on Fin., Hatch Statement on Steel, Aluminum Tariffs (Mar. 8, 2018), https://www.finance.senate.gov/chairmans-news/hatch-statement-on-steel-al­uminum-tariffs [https://perma.cc/42YF-KMX8]. ↑
8. Vicki Needham, Ways and Means Sets Hearing on Trump’s Tariffs, The Hill
   

   (Apr. 5, 2018, 5:17 PM), https://thehill.com/policy/finance/381875-ways-and-means-set-hearing-on-trump­s-tariffs [https://perma.cc/AN9E-98LU]. ↑

9. Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 112, 133 Stat. 2317, 2395–96 (2019) (requiring publication of the Secretary of Commerce’s findings in automobiles and automotive parts market within thirty days of enactment). The Administration has thus far resisted complying with this provision. See Steven A. Engel, Office of Legal Counsel, Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security 1–2 (Jan. 17, 2020), https://www.justice.gov/olc/­opinion/file/1236426/download [https://perma.cc/YYC3-AHW6] (arguing that President may assert executive privilege over Secretary of Commerce’s automobile and automobile parts report). ↑
10. See infra Subsection II.C.1 (detailing historical development of the national security justification for imposing tariffs). ↑
11. Trade Security Act of 2019, S. 365, 116th Cong. (2019); Bicameral Congressional Trade Authority Act of 2019, S. 287, 116th Cong. (2019); H.R. 6923, 115th Cong. § 4 (2018); S. 3329, 115th Cong. § 2 (2018). ↑
12. See Letter from Mattis to Ross, supra note 4. Former Defense Secretary Mattis resigned between the 2018 and 2019 bill proposals, but press releases accompanying the 2019 proposals, such as one stating the purpose was to counter “misuse” of the national security justification and “to ensure that the statute is used for genuine national security purposes,” suggest that bill proponents view the Defense Department’s constraining effect on the use of the national security justification as departmental rather than unique to Mattis. See Press Release, Sen. Rob Portman, Portman, Jones, Ernst, Alexander, Feinstein, Fischer, Sinema & Young Introduce Trade Security Act to Reform National Security Tariff Process (Feb. 6, 2019), https://www.portman.senate.gov/newsroom/press-releases/portman-jones-ernst-alexa­nder-feinstein-fischer-sinema-young-introduce [https://perma.cc/4DQZ-AVE4] [hereinafter Press Release, Sen. Rob Portman]. ↑
13. See generally Edward E. Groves, A Brief History of the 1988 National Security Amendments, 20 Law & Pol’y Int’l Bus.
    

    589, 590–93 (1989) (

    detailing the ways in which Congress has empowered other agencies to conduct trade policy)

    . T

    he executive agents who have been tasked with fulfilling the requirements of Section 232 include: Director of Defense Mobilization (1955), Director of the Office of Defense and Civilian Mobilization (1958), Director of the Office of Emergency Planning (1962), Director of the Office of Emergency Preparedness (1968), Secretary of the Treasury (1974), and Secretary of Commerce (1979). Id. ↑

14. I use this term as a congressional corollary to then-Professor Elena Kagan’s “Presidential Administration,” which she identified as presidential control of the bureaucracy as a means to advance “the President’s own policy and political agenda,” particularly in the face of political obstacles to doing so through other means. Elena Kagan, Presidential Administration,
    

    114

    Harv. L. Rev. 2

    245, 2248 (2001)

    . Professor Jack Beermann uses this term directly, to describe Congress’s ongoing involvement in the “day to day administration of the law.” Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 64 (2006). ↑

15. Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J.
    

    1255, 1291 (1988); see also Aaron Wildavsky, The Two Presidencies,

    4

    Trans-Action 7

    (1966) (

    arguing that presidents typically receive support or, at least, a lack of pushback from Congress on their foreign policy agenda)

    .

    ↑

16. See Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. 7–11 (2011) (statement of Harold Koh, Legal Adviser, U.S. Dept. of State); see also Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (arguing that administrative law is sufficiently vague to enable Presidents to act without constraint at the invocation of an emergency, and that this is inevitable). ↑
17. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015). ↑
18. For a bit of all three, see Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Counsel to the President, Exec. Office of the President (Aug. 1, 2002), https://www.justice.gov/olc/file/886061/download [https://perma.­cc/AM56-F4TD]. ↑
19. Or, if this is anachronistic, then to anyone who is on Twitter. ↑
20. Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking, 38 Yale J. Int’l L.
    

    359, 369–73 (2013) [hereinafter Ingber, Interpretation Catalysts]. ↑

21. Id. ↑
22. In fact, members of Congress often have significant ties to the executive branch both through their own personal relationship to members of the political class within the administration and through staffers’ often deep connections to agencies through prior positions, former colleagues, and the fact that they are repeat players on specific issues. See, e.g., Ashley Deeks, Statutory International Law, 57 Va. J. Int’l L. 263, 296–97 (2018). ↑
23. See Josh Chafetz
    

    ,

    Congress’s Constitution: Legislative Authority and the Separation of Powers 3 (2017) (arguing that Congress has many tools, including both “hard” like appropriations and “soft” like speech, which it underutilizes). ↑

24. See infra Part II. ↑
25. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2086 (2015). ↑

The post Congressional Administration of Foreign Affairs first appeared on Virginia Law Review.

Introduction

This Article focuses on a single doctrinal question: what domestic legal process is necessary for the United States to rejoin a treaty from which it has been unilaterally withdrawn by the President? More specifically, may a President seeking to rejoin a treaty do so in reliance of the original resolution of advice and consent passed by the Senate, or must he or she return to the Senate for a second resolution?

This is a question that has received no sustained attention in scholarship or in practice. This itself is a cause for celebration, a reflection of the fact that unilateral treaty withdrawals by Presidents historically have been rare and usually well-founded. It was controversial when President Carter unilaterally withdrew the United States from its mutual defense treaty with Taiwan, but his successor quickly came to recognize the value of normalized relations with mainland China.¹ 1.Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”).Show More

Since coming to office, President Trump has pursued a policy of international disengagement on many fronts. To date, he has focused mainly on rolling back international commitments made by President Obama which the United States had joined not as “treaties” in the constitutional sense of the word, but rather through other constitutional pathways.² 2.E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017).Show More Yet he and his administration have also shown a willingness to terminate treaties—legal instruments that received the advice and consent of two-thirds of the Senate and thus commanded, at least at one point in history, strong bipartisan support.³ 3.Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”).Show More Specifically:

• News reporting early in the Trump administration indicated that it planned to conduct a widespread review of all multi­lateral treaties other than those “directly related to national security, extradition, or international trade” in order to assess “whether the United States should continue to be a party . . . .”⁴ 4.Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order).Show More
• In October 2018, the Trump administration announced the immediate or planned U.S. withdrawal from three treaties: the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes; the Treaty of Amity, Economic Relations, and Consular Rights with Iran; and the Intermediate-Range Nuclear Forces (INF) Treaty with Russia and other former Soviet Republics.⁵ 5.Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019).Show More
• In remarks related to two of these withdrawals, then-National Security Advisor John Bolton signaled that the Trump administration would more generally consider withdrawing from treaties or treaty provisions in which the United States had consented to the jurisdiction of the International Court of Justice.⁶ 6.Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW.Show More
• President Trump has repeatedly expressed doubts about NATO and has indicated some interest in withdrawing from the North Atlantic Treaty which underlies it.⁷ 7.See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions).Show More

As a matter of U.S. domestic law, the executive branch considers itself authorized to withdraw from treaties without receiving explicit approval to do so from Congress or the Senate, at least provided that the withdrawal is consistent with international law. Although his position has never received the explicit blessing of the U.S. Supreme Court, it is now well-grounded in executive branch practice and it has been accepted both by the Restatement (Third) and the recent Restatement (Fourth) of Foreign Relations Law.⁸ 8.Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe).Show More The prospect of landmark treaties being terminated at the whim of President Trump has motivated some scholarly reexamination of this issue.⁹ 9.E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018).Show More But requiring the explicit approval of Congress or two-thirds of the Senate for treaty withdrawal raises its own normative concerns and in any event is an uphill argument in light of past practice. And unless and until such a claim succeeds with the courts (or Congress explicitly legislates to block termination), President Trump and his successors will continue to possess the putative power of treaty withdrawal.

This Article therefore focuses on the issue of rejoining treaties. The more polarized the office of the Presidency becomes—and the more it is held by individuals who act based on caprice rather than expertise—the greater the likelihood there is that one President will withdraw from treaties that a later President will wish to rejoin. Such rejoining would have to be not only feasible at the international level (i.e., consistent with international law and receiving any necessary approval from treaty partners), but also legal as a matter of domestic law.

This Article is not the first piece to consider the issue of the process for rejoining treaties. Back in 1986, for example, shortly after President Reagan withdrew the United States from the general jurisdiction of the International Court of Justice, a student comment on the subject stated without analysis that rejoining “would be contingent on the advice and consent of the Senate.”¹⁰ 10.Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986).Show More More recently and more significantly, a former leading practitioner for the State Department in the climate context, Sue Biniaz, sketched out some thoughts about the legal process for rejoining in a conference thought paper. Raising the possibility that President Trump might withdraw from the U.N. Framework Convention on Climate Change, she floated the idea that “a new Administration [could] take the position that the Senate’s original resolution of advice and consent had not expired and, as such, the President was free to [resubmit] an instrument of ratification.”¹¹ 11.Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point).Show More Yet while the idea of rejoining treaties is not new to this paper, it is a subject that to date has not received sustained scholarly treatment, unlike the issue of treaty withdrawal.

There are three ways by which the President might rejoin a treaty as a matter of domestic law. One obviously lawful way would be to go back to the Senate for another round of advice and consent by a supermajority. But getting treaties through the Senate has always been challenging and is now even harder than it used to be, due both to increased partisanship and to changed procedural norms. Indeed, from 2001 through 2010, the Senate advised and consented to only one treaty where there were any recorded dissenting votes.¹² 12.Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012).Show More To require another round of Senate advice and consent to rejoin treaties would cause such rejoining to range from challenging to effectively impossible.

A second option would be to rejoin the international agreement not as a treaty but rather through some other domestic process. U.S. constitutional practice has developed several domestic pathways distinct from that set out in the Treaty Clause by which the United States can join international agreements.¹³ 13.For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97.Show More Some important agreements are made by the executive branch without specific legislative approval, such as President Obama’s decision to join the United States to the Paris Agreement on climate.¹⁴ 14.See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power).Show More Others, such as most major trade agreements, receive specific approval from Congress.¹⁵ 15.Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements).Show More There is considerable uncertainty about the extent to which the uses of these other pathways are constitutionally permissible. Accordingly, these alternative pathways might be available as a matter of law for some or even all international agreements which the United States initially joined as treaties but later withdrew from based on unilateral presidential action.¹⁶ 16.This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law.Show More Even if lawful, however, rebranding a former treaty as an agreement that could be joined in a manner akin to the Paris Agreement rather than as an Article II treaty would likely raise procedural concerns within the State Department, face congressional pushback, and potentially complicate the agreement’s implementation. Going to Congress for statutory approval prior to rejoining would reduce concerns about legality and implementation. But obtaining such approval would likely prove difficult as a matter of legislative process, particularly if the shift from treaty to congressional-executive agreement triggered resistance from the Senate Foreign Relations Committee.

The third option, whose legality and availability are the focus of this Article, would be to treat the Senate’s pre-existing resolution of advice and consent as still operative. The President could therefore rejoin the international agreement as a treaty, but without having to go again to the Senate for advice and consent. This approach would presumptively put rejoining on equal footing with withdrawing in terms of the domestic legal process. The presumption would be overcome, however, if rejoining would be inconsistent with the language of the original resolution, with any modifications to this resolution made by two-thirds of the Senate, or with an intervening congressional statute. The President’s ability to rejoin the treaty would also be contingent on this being an available option at the international level.

The doctrinal basis for treating original Senate resolutions of advice and consent as still operative rests on these resolutions’ text, on broader constitutional practice, and on structural principles. As a textual matter, while the Senate often puts substantial conditions into its resolutions of advice and consent, it typically does not include language that renders them ineffective for purposes of rejoining. As a matter of constitutional practice, while there is no specific practice on point for the issue of rejoining, two related strands suggest that the original resolutions should be taken to remain operative. First, these resolutions are already understood to remain operative well after the end of the Senate session in which they are passed, as the executive branch often does not ratify treaties until years after the Senate’s advice and consent has been given. Second, with respect to international agreements other than treaties that rely on some form of congressional authorization, the executive branch has used pre-existing authorizations as a basis for rejoining such agreements following withdrawal. In 2003, for example, President George W. Bush rejoined the United States to UNESCO (from which President Reagan had withdrawn the United States) in apparent reliance on the statutory authorization that has justified the initial U.S. entry into UNESCO many years earlier.¹⁷ 17.See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration).Show More Finally, as a structural principle, treating original Senate resolutions of advice and consent as remaining effective prevents the President from being singlehandedly able, through withdrawal, to undo the actions of a coordinate branch. It is one thing for the President to be able to withdraw the United States unilaterally from a treaty—after all, the President has unilateral discretion over whether to ratify the treaty. It is quite another thing for the President thereby to effectively erase a Senate resolution, unless the Senate or Congress expressly authorized this result.

The claim that a President can rely on the initial resolution of advice and consent to rejoin a treaty fits into a broader framework for the distribution of foreign affairs powers. Foreign relations law rests in an uneasy space between contrasts—foreign and domestic, congressional and presidential, flexible and constrained. A long-standing strand of scholarship raises concerns about the rise of presidential power and about the implications of this rise for U.S. international engagement.¹⁸ 18.For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018).Show More The approach advocated for here in some ways both advances presidential power and brings uncertainty to international law. It advances presidential power by advocating an understanding of Senate resolutions that gives the President the power to treat them as ongoing authorizations, and it brings uncertainty by creating a pathway whereby presidents can zig-zag their way through treaties, if they so choose. In other ways, however, the approach advocated for here both serves as a check on presidential power and a mechanism for continuing international engagement on the part of the United States. For a legal framework in which the President can unilaterally withdraw from a treaty but not unilaterally rejoin it would be a legal framework that puts a heavy thumb on the scale against international engagement and that limits rebalancing by a future President. The approach advocated for here, by contrast, relies on a broader, developing alignment between U.S. foreign relations law and U.S. administrative law. In both cases, the executive branch wields considerable power, but in both cases the decisions of one administration can be revisited by another administration and thus are subject to the long-term checks of democracy.

In terms of structure, this Article has three parts. Part I is descriptive, identifying existing law and practice with respect to treaty formation and withdrawal. Part II is the core of the Article. It elaborates on and defends the doctrinal argument sketched above with respect to treaty rejoining. It argues that Senate resolutions of advice and consent can constitutionally authorize rejoining and, as a matter of their interpretation, should presumptively be read to do so. It also discusses limitations stemming from domestic law, international law, and international relations that might prevent rejoining with respect to particular treaties. Finally, it assesses the practical effect of a presidential power to rejoin treaties and emphasizes that this power is much more likely to be workable with respect to multilateral treaties which are open broadly to membership than with respect to bilateral treaties, which cannot be re-established without the consent of the other nation. Part III situates the doctrinal argument made in Part II within a broader theory of the constitutional distribution of foreign affairs powers.

1. * Professor, University of Pennsylvania Law School. I thank Curt Bradley, Sue Biniaz, Arancha Hinojal Oyarbide, and Duncan Hollis for their generous and thoughtful comments on earlier drafts, as well as participants at the Penn Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Biddle Law Library at Penn Law. Finally, I thank the editors of the Virginia Law Review, especially Justin Aimonetti, Nicholas Allen, Nicole Gilson, and Amanda Swanson for their careful editing. All views and any errors are my own. ↑

2. Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”). ↑
3. E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017). ↑
4. Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”). ↑
5. Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order). ↑
6. Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019). ↑
7. Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW. ↑
8. See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions). ↑
9. Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe). ↑
10. E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018). ↑
11. Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986). ↑
12. Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point). ↑
13. Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012). ↑
14. For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97. ↑
15. See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power). ↑
16. Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements). ↑
17. This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law. ↑
18. See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration). ↑
19. For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018). ↑

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