Totemic Functionalism in Foreign Affairs Law

Authors

Elad D. Gil, Duke Law ScoolFollow

Document Type

Article

Publication Date

2019

Abstract

In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. The travel ban, the exit from the Irannuclear deal, and the airstrikes against the Bashar al-Assad regime in Syria are just a few recent illustrations of unilateral assertions of presidential power. A large part of the justification for treating foreign affairs differently than other areas of public policy, in which political and judicial checks on the executive are more robust, is functional. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts afford the President considerable deference in cases relating to foreign affairs. But there is something deeply flawed in the way judges apply functionalist reasoning in this context. Instead of using functionalism for what it is—a contextual and adaptable paradigm for ascertaining whether and how much deference is desired in order to make the challenged policy or act work best—judges frequently simply rely on the executive’s special competence to apply a de facto presumption of near-total deference. I term this practice “totemic functionalism.”

This Article traces the conceptual underpinnings of totemic functionalism and critically analyzes its pervasive effect in foreign affairs law. Using three case studies and other recent examples, it then shows how totemic functionalism undermines the system of checks and balances, first between the organs of government and then, indirectly, inside the executive branch. As a result, while judicial deference in foreign affairs is often excused with the assertion that other non-judicial checks provide adequate substitute, I show that the near-total deference arising from totemic functionalism insulates the President from any sort of accountability.

Comments

This article is submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.), Duke University School of Law, 2019.

Citation

Elad D. Gil, Totemic Functionalism in Foreign Affairs Law, 10 Harvard National Security Journal 316-376 (2019)