The Statutory Foreign Affairs Presidency

Volume 172 of the University of Pennsylvania Law Review is proud to present its annual symposium on a timely legal topic.

Despite the perennial debates about the scope of the President’s constitutional authority, we have today a largely statutory president, even in foreign affairs. Most important actions that presidents take have some connection to a statute. This means that the law governing statutory authorization and delegation—a mix of constitutional law, interpretive principles, and administrative doctrine—has become central to questions of executive power. President Biden’s various forms of support for Ukraine, and his sharp restrictions on economic interaction with China, are ultimately connected to statutes. Many of President Trump’s controversial actions, including the travel ban and the emergency border wall funding, were justified as delegations from Congress. For over two decades, the “war on terrorism” has been fought primarily based on a 2001 statute and series of congressional appropriations. The vast majority of binding international agreements made by the executive branch purport to be authorized by Congress. There are many more examples.

To understand the modern foreign affairs presidency, one must know how to assess and interpret the statutory bases for presidential action. And yet there is an enormous array of unresolved questions about the right way to approach these issues, even as the issues grow increasingly important.

In recent years, the Supreme Court has become much more focused on issues of delegation and authorization and has raised new questions about how these issues should be resolved in the foreign relations law context. Some justices have supported a revival of a stricter nondelegation doctrine. But the same justices in the vanguard on this issue have indicated that foreign affairs delegations should be treated more generously. Some commentators, however, have started to question that exceptionalism for foreign affairs delegations, on both historical and theoretical grounds.

In the meantime, the Supreme Court has been applying a “major questions doctrine,” and there is uncertainty about how that doctrine applies in the foreign affairs context. This question is further complicated by past decisions in which the Supreme Court has suggested that statutory delegations of foreign affairs authority should be construed more generously than delegations of domestic authority, in light of Congress’s awareness of the executive branch’s functional advantages in the foreign affairs arena.

This symposium seeks to bring together diverse scholars to publish leading scholarship addressing the many unresolved and unaddressed questions of statutory delegations of foreign affairs powers.

A detailed schedule, including a description of each panel and its participants, is available at pennlawreview.com/symposium.

The Law Review is proud to partner with Curtis Bradley (University of Chicago) and Jack Goldsmith (Harvard) to present this Symposium.

This year's symposium will be a hybrid event and live streamed. If you would prefer attending virtually, please register for a virtual ticket. We will distribute a zoom link ahead of the actual event.

For more information, please visit our website at pennlawreview.com/symposium or e-mail [email protected].

This program has been approved for 7.0 Substantive CLE credits for Pennsylvania lawyers. CLE credit may be available in other jurisdictions as well. Attendees seeking CLE credit must register for CLE credit and make a payment via the online CLE registration link in the amount of $280.00 ($140.00 public interest/non-profit attorneys). In order to receive the appropriate amount of credit, passcodes provided throughout the program must be noted in your evaluation form.

Penn Carey Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning.

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