Harvard Law Review Forum
The field of “ foreign relations law ” encompasses a variety of constitutional, statutory, and common law rules and doctrines that regulate how the United States interacts with the rest of the world.1 In their article on The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth contend that there has been a revolution in U.S. foreign relations law during the past twenty-five years.2 In particular, they claim that there has been a shift away from treating foreign relations law issues as “exceptional ” toward treating them as “normal ” — that is, “as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles.” 3 The authors further contend that this trend of normalization is likely to continue, and that such a development should be welcomed and encouraged.4
Normalization makes a number of important contributions. It use-fully seeks to develop a more rigorous definition of the idea of “foreign relations exceptionalism.” It ties together various Supreme Court decisions since the end of the Cold War that might otherwise have seemed unconnected. Perhaps most notably, its critique of treating a general category of “foreign relations law ” as legally distinct from a general category of “domestic law ” is powerful and likely to have lasting significance. Despite these virtues, the article has some conceptual and methodological limitations. In particular, its definition of foreign relations exceptionalism is under inclusive in certain respects and over inclusive in others; its descriptive account is too exclusively focused on the Supreme Court and is not entirely persuasive even on its own terms; and its lack of an underlying theory weakens its empirical, predictive, and normative claims.
Bradley, Curtis A., "Foreign Relations Law and the Purported Shift Away From “Exceptionalism”" (2015). Articles. 10175.