Penn Law Global Affairs Blog Assistant Editor and SJD Candidate Amal Sethi sits down with Penn Law Professor Jean Galbraith to discuss the role of the United States on the global stage and what this election could mean for U.S. foreign policy.
Q: Professor Galbraith, could you tell our readers a bit about your current scholarly work?
A: As a scholar I work in two related fields: one is the design of international legal regimes and the other is U.S. foreign relations law, which is the law of the United States as it relates to foreign affairs. Let me focus for purposes of this conversation just on that latter aspect of my research. I study the ways in which law is used to divide up power between different governmental actors within the United States in the foreign affairs space. For example, who has the power to make war? Who has the power to make international commitments? My research shows that the division of power within the United States between the President and Congress has been influenced throughout history by international law.
Q: As President Obama nears the end of his presidency, are there any reflections you would like to offer on his foreign relations strategy and policy? How have international institutions, the international legal system, and America’s role on the global stage evolved (or not) during his presidency?
A: This hasn’t been a time for dramatic change in the international legal system, at least in terms of formal international law. It hasn’t been a post-World-War-II moment or a post-Cold-War moment, but instead a time of more gradual change and development. On the whole, I think President Obama has done a fairly good job with the cards that he was dealt. He’s made some major and valuable strides in international engagement, such as with the Paris Agreement on climate change, the return to more normalized relations with Cuba, and I think probably with the Iran deal. With the war on terror and the situations in Afghanistan and Iraq, he started from a difficult place and hasn’t made as much progress as I would have hoped.
Q: There is much hand-wringing about the “retreat” of the United States from a position of global leader. How true is this, and how would you describe the increasing multi-polarity we see in the global system? Can international institutions play a role in keeping power dynamics even?
A: I don’t think we have seen a dramatic retreat of the United States from a position of being a global leader. The United States is still in the international legal system the first among equals in terms of its power, both militarily and in softer forms across the globe. That said, we are certainly not in the post-Cold-War moment either, when the United States was the only superpower left standing. There has been the rise of BRICS [Brazil, Russia, India, China, and South Africa], as my colleague Bill Burke-White has written about insightfully. The question of whether international institutions play a role in keeping power dynamics even is one that depends on the international institutions in question. The U.N. Security Council, for example, is explicitly designed to recognize the importance of five major powers by giving them each a permanent seat and a veto power. This perpetuates certain power dynamics, but it also plays a vital role in promoting international peace and stability.
Q: In the context of the election, I am wondering whether you think that foreign policy varies much among Republican and Democratic presidents. Conventional wisdom suggests that there is little variance between the parties when it comes to foreign policy outcomes. How true is this, and do you think there could be a big difference in foreign policy outcomes based on who wins the election? How would you see America’s role on the global stage changing?
A: I certainly think there is considerable variation among the parties with regard to foreign policy. But even setting aside that question in general sense, this election is one in which there is no doubt that there is going to be very high variance. Hillary Clinton has tremendous international experience and is very up to speed already on international affairs, while Donald Trump is a loose cannon. If she is President, the story will mostly be one of continuity with the policies of the Obama Administration. If he is President, then we could have anything from considerable continuity to radical change. For example, Mr. Trump might seek to withdraw the United States from existing international commitments on security, the environment, and trade – since, under our domestic law, one of the powers that the President has acquired over time is the power to withdraw the United States from international treaties. I think such choices would be detrimental to American interests. And this is just one example of the powers that he might exercise – there are many other, more alarming examples. Interestingly, some of the strongest opposition to Mr. Trump within the Republican party comes from elites in the national security space, who are deeply concerned about what he might do.
Q: What can the United States, unilaterally or in coalition with others, legally do about Syria?
A: Let me take that as a question focused on international law rather than on U.S. domestic law. First of all, there is a great deal more that the United States could try to do to contain the fallout from the conflict in Syria, including channeling much more assistance to those countries who are harboring most of the refugees. Second, the United States can pursue diplomatic solutions to the crisis. Third, – and this is probably the core of your question – the United States can use force against ISIS in Syria for purposes of the collective self-defense of Iraq and arguably for its own self-defense, at least if one accepts the position that a state can use force in self-defense against a non-state actor on the territory of another state which itself is unwilling or unable to deal with the threat posed by the non-state actor. Unlike with respect to ISIS, however, the United States currently has little basis under international law for acting directly against the Assad regime. That is harder to justify as a matter of self-defense. One would probably have to invoke the principle of humanitarian intervention in order to justify such actions, and humanitarian intervention is not considered by most to be a legal basis for the use of force abroad.
Q: How do the constraints of domestic U.S. law and international law interact when it comes to U.S. intervention in a situation like Syria?
A: Let me start with what the domestic law constraints are. Congress has not passed any legislation explicitly authorizing intervention in Syria. That means that President Obama is on somewhat uneasy legal grounds domestically in using force in Syria. His administration has cited a shifting mix of justifications over time – his commander-in-chief power, the 2001 legislation that Congress passed authorizing the use of force against Al Qaeda, the 2002 legislation that Congress passed authorizing the second Gulf War, and some recent congressional appropriations related to combatting ISIS. Note that these four justifications relate to uses of force against ISIS. To the extent that President Obama wished to use force against the Assad regime, he could probably only rely on the commander-in-chief power, the contours of which are sharply disputed. In other words, with respect to ISIS, President Obama has a lot of arguable (though not overwhelmingly persuasive) legal justifications for the use of force under both international and domestic law; while with respect to the Assad regime, President Obama has far weaker legal grounds under both international and domestic law for uses of force. My view is that these differences have proved important for how the Administration has acted so far in respect to Syria. In an article I’ve co-authored with Curtis Bradley at Duke, we suggest that Presidents may be especially wary of using force where they are on weak grounds under both international and domestic law. President Obama’s decision not to use force against the Assad regime after its use of chemical weapons in 2013 is a likely example. In an interview with a reporter for The Atlantic, President Obama later identified concerns related to international law and to domestic law as two of four factors that underlay his decision.
Q: Which restrains a U.S. president more in foreign policy—the law, or public opinion? Do the two interact? For example, must a president appeal to legal grounds to gain public support for a foreign policy initiative?
A: Both. Both law and public opinion constrain President – and sometimes empower the President – in the foreign policy context. They also can interact. Where the President is seeking to take an action that is controversial, it can be important in the court of public opinion that this action is on strong legal grounds. Such legality can matter to public opinion at the beginning, and it will certainly be brought up if things go badly. To take a historic example, President Truman decided to take United States into the Korean War without getting an authorization from Congress. At first this wasn’t too much of a problem for him. But when the war began to go badly, he had to face public challenges to both the wisdom and the legality of his decision.
Q: As an expert on foreign relations law, what is the most outrageous thing that you have heard by either of the presidential candidates that made you say ‘the president cannot really do that!’?
A: I have heard a number of outrageous things coming from Donald Trump, even limiting my answer to the foreign policy context. The one that leaps first to mind is one that, to his credit, he did ultimately back away from. That was his statement that he would “take out” the families of terrorists. This would be an appalling violation of international humanitarian law and human rights law. It would stand in stark contradiction to the principles of law and morality that are dear to our military, our society, and our world order. Mr. Trump received sharp and immediate push-back for these remarks and essentially retracted them.
Q: If you could ask either of the presidential candidates a foreign relations question what would it be?
A: When can the President constitutionally use military force abroad without authorization from Congress? The journalist Charlie Savage asked a question along these lines of the candidates during the 2008 election. Barack Obama responded that the President “does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to our nation.” President Obama has not always acted in ways that reflect this response – most notably with respect to Libya – but having this response on the record has proved important to the public debate and maybe also to some of his other decisions. Charlie Savage has posed similar questions to the candidates this time round, but Mr. Trump and Secretary Clinton have not answered them. I’d love to see them given this question in a debate. At the very least, it might raise the level of discourse.
Q: As a legal scholar, what would be one piece of advice you would like to give to the next President?
A: The differences between the candidates are so great that I don’t feel that there is a single piece of advice that would be useful to both of them. For Mr. Trump, the piece of advice that I would give is one that is probably antithetical to how he operates. It would be – “listen to your lawyers and other experts in the civil service.” If followed, that would be a first step to warding off disastrous decision-making. For Secretary Clinton, I would urge the importance of strong and early congressional consultation. There’s a famous quote from Senator Vandenberg along the lines that “if you want us there for the landing, you’d better include us in the take-off.” There’s a great deal that the President can do in the foreign policy space without the formal approval of Congress as a body. But it is nonetheless crucial to keep members of Congress closely informed. At the very least, it helps to reduce the pushback when problems arise, and at best it may help if the executive branch later needs related congressional legislation or treaty approval by the Senate.