Foreign Relations Law and the Purported Shift Away From Exceptionalism

In prior writings, I coined the term “foreign relations exceptionalism” to refer to the view that the federal government’s foreign affairs powers are subject to a different, and generally more relaxed, set of constitutional restraints than those that govern its domestic powers. In a recent article in the Harvard Law Review, The Normalization of Foreign Relations Law, the authors contend that during the past twenty-five years there has been a revolutionary shift away from foreign relations exceptionalism, that this “normalization” trend is likely to continue, and that this development should be welcomed and encouraged. This essay points out various conceptual and methodological limitations with the normalization thesis. In particular, the essay argues that the authors’ definition of foreign relations exceptionalism is problematic because it relies on artificial distinctions in constitutional law; that their account is too exclusively focused on the Supreme Court and does not present a compelling case even on its own terms; and that their lack of an underlying theory of why normalization is occurring weakens their empirical, predictive, and normative claims