President Obama’s nomination of Harold Koh to be legal advisor to the State Department has generated opposition among those—primarily conservatives—who take seriously the idea that the United States is a representative democracy. Briefly, the argument against Koh is that he believes the United States should be governed by transnational norms such as international law, and that it is the job of judges and other elites to bring U.S. laws and the Constitution itself into compliance with such norms—even by interpreting the Constitution in light of international norms, rather than the intentions of its authors. Here’s a short buffet of commentary on Koh:
David Kopel, Volokh Conspiracy:
Dean Koh is an excellent writer and an impressive scholar. But his legal vision is for a substantial diminution of the sovereignty of the American people, and as Legal Advisor to the State Department, he would have tremendous power to advance that vision. As Dean Koh has explained, his writings on transnationalism are not merely descriptive; they are also a strategy for activists. Of course Dean Koh has the right to advocate as sees fit. The Constitution, however, requires that major presidential appointees must earn the Advice and Consent of the United States Senate. The Senate’s duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee’s record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.
Ed Whelan, Ethics and Public Policy Center:
What is most striking—and, in a limited sense, refreshing—about Koh’s position is how brazen it is, compared, say, to that of Justices Ginsburg and Breyer, who base their reliance on foreign and international laws on fuzzy grounds (“we can learn from others,” “our people in this country are not that much different than people other places”). … Koh is explicit in stating that he wants American courts to “play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” American courts, of course, cannot revise the “rules of foreign and international law,” so the “coordinating” that Koh has in mind requires that American courts, and especially the Supreme Court, change the meaning of constitutional provisions to comport more closely with the ever-evolving rules of foreign and international law. In other words, what Koh calls “coordinating” is really subordinating the Constitution to international norms.
Koh argues that this role is necessary “not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system.” But in our constitutional system, it is up to the political branches—Congress and the president—to make foreign policy and to determine whether, and to what extent, American domestic law should be coordinated with rules of foreign and international law. It is their job, not that of the courts, to determine whether and how it is in our national interest “to advance the broader development of a well-functioning international judicial system.” (And it is also their job, not the free-floating job of the courts, “to promote American aims.”) There is nothing necessary about the judicial role that Koh advocates, and there is nothing appropriate about it.
[Whelan has produced an extensive analysis of Koh’s writings.]
John Fonte, National Review:
But, of course, the “transnational legal process” articulated by Harold Koh and the politics of transnationalism generally are not democratic. They represent a new form of governance that I call “post-democratic.” To “make, interpret, [and] enforce” international law, “which can in turn be internalized into the domestic law of even resistant nation-states” (as Koh describes it), is to exercise governance. But do these transnational governors have the consent of the governed?
The transnational legal process fails the “government by the consent of the governed” test in two ways. First, the democratic branches of government, the elected representatives of the people, have no direct input either in writing the global laws in the first place, or even in consenting to their domestic internalization, as, for example, happens when the Senate ratifies a treaty or the Congress passes enabling legislation for a non-self-executing treaty.
Second, there is no democratic mechanism to repeal or change these international rules that are incorporated into U.S. law by this process. What if the American people decide that they object to these global norms and transnational laws that were imposed upon them without their consent (on, for example, the death penalty, internal security, immigration, family law, etc.)? What if the American people at first approved, but later changed their minds on, some of these rules: How can these global norms, now part of international law and U.S. constitutional law, be repealed? Legislation to repeal the global norms could be deemed “unconstitutional.” In short, there are no democratic answers to these questions consistent with the transnational legal process, because it is not a democratic process.
In April, a large group opposing Koh sent a letter to the Senate Foreign Relations Committee explaining why they think Koh’s nomination should be rejected. Earlier this month, a group of prominent conservative leaders signed a statement opposing the Koh nomination. More information on Koh can be found at the Web site NoKoh.
Koh’s nomination has been approved by the Senate Foreign Relations Committee and will soon be taken up by the full Senate.