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At the President’s Suggestion — and Now, at His Command

Congressional Quarterly reported yesterday on the then-pending cloture vote on the nomination of Harold Koh to be Legal Adviser to the State Department, and on the anxiety that Republicans have expressed about his legal transnationalism, which seeks to “bring international law home” by subsuming it into the U.S. legal system without Congressional action. Koh, realizing that being tagged with that would hurt his nomination, was at pains to deny that this is what he wants, and CQ notes his denial – with a quotation directly from Koh that makes the case for the opposition:

They are only binding in our court, international and foreign law, when judges make them so, the president suggests that they should be so, or Congress embodies them into an act of Congress that’s signed by the president . . . . International and foreign law don’t become our law unless they are brought into our law by an act of American legal institutions.

I have been reading Koh’s writings for months.  At times, it’s Alice in Wonderland, six impossible things before breakfast stuff.  But this one made my jaw drop.  Forget about the argument that judges have the power to make international and foreign law binding in U.S. courts, even though that’s legal transnationalism in a nutshell.  What really shocked me is Koh’s contention that international and foreign law are binding when “the president suggests that they should be so.”  So not only is the president an “American legal institution,” he also has the power to bind U.S. courts to follow foreign law with a simple suggestion.

True, Koh’s said this kind of thing before.  In 2002, he described “informal state-to-state gatherings” as a “legal process” that constituted “a law-declaring forum that can operate at the global level” and “declare an international norm.”  A few months ago, on the Heritage Foundation’s blog, I pointed out that this “implies that the informal, international word of the President or his representatives is law, and therefore incumbent upon the State Department’s Legal Adviser to enforce.  This is a radical claim.”

But even I didn’t think that Koh would put it quite as plainly as he did in the CQ piece.  As long as Koh likes what he says – because he certainly didn’t extend that kind of deference to George W. Bush – Koh believes the President’s word is law.  With thousands of pages of legal writing behind him, it was always going to be tricky for Koh to escape from his record.  But quotations like this one make me wonder why he even bothered to try, or how anyone can claim with a straight face that his repeatedly-expressed beliefs are not, in fact, his.  Perhaps the answer is simple: it works.  Koh won his cloture vote today, by a pretty comfortable 65-31 margin.