Public Law & Legal Theory
A prominent criticism of U.S. delegations to international institutions – or international delegations – focuses on agency costs. The criticism begins by drawing a stark contrast between international delegations and domestic delegations. For domestic delegations to agencies, U.S. congressional, executive and judicial oversight mechanisms are present to try and maintain the agency’s democratic accountability. Since the agency is democratically accountable, the agency costs are low. For international delegations of binding authority to international institutions, however, the conventional wisdom is that oversight mechanisms are absent and the U.S. cannot monitor the international institution to ensure it acts within its delegated authority. In the international context, agency costs are high. The fear of high agency costs through the loss of democratic accountability, so the argument goes, justifies constitutionally inspired limits on international delegations. This Article challenges the conventional wisdom. It argues that the agency costs claim rests on weak foundations as agency costs will likely vary depending on the type, scope, and nature of the delegation; that the U.S. has actually implemented many of the domestic oversight tools in the international context, ensuring a surprisingly high level of accountability to American interests; and that the potential costs and benefits of international delegations are not meaningfully different from those in domestic delegations. In other words, there is little systematic difference between domestic and international delegations with respect to the efficacy of oversight mechanisms or the balance of costs and benefits. The Article concludes that constitutionally inspired limits on binding international delegations are probably unnecessary because they will increase the costs for the U.S. to participate in potentially beneficial international cooperation.
Daniel Abebe, "Rethinking the Costs of International Delegations," University of Chicago Public Law & Legal Theory Working Paper, No. 391 (2012).