Court legitimacy undergirds international institutions and credibility – decline causes global war.

These factors make the current system much more stable, peaceful and durable than the past multi-polar and bipolar systems in which the United States operated for all of its history until 1991. The lack of balancing means that the United States faces weak structural pressure.330 The internal processes of the U.S. matter now more than any other nations’ have in history.331 As one realist scholar has argued, the U.S. can best ensure the stability of this unipolar order by ensuring that its predominance appears legitimate.

332 Hegemonic orders take on hierarchical characteristics, with the preeminent power having denser political ties with other nations than in a unipolar order.333 Stability in hegemonic orders is maintained in part through security guarantees and trade relationships that result in economic specialization among nations.334 For example, if Nation X’s security is supplied by Hegemon Y, Nation X can de-emphasize military power and focus on economic power. In a hegemonic system, the preeminent state has “the power to shape the rules of international politics according to its own interests.”335 The hegemon, in return, provides public goods for the system as a whole.336 The hegemon possesses not only superior command of military and economic resources but “soft” power, the ability to guide other states’ preferences and interests.337 The durability and stability of hegemonic orders depends on other states’ acceptance of the hegemon’s role. The hegemon’s leadership must be seen as legitimate.338

The United States qualifies as a global hegemon. In many ways, the U.S. acts as a world government.339 It provides public goods for the world, such as security guarantees, the protection of sea lanes, and support for open markets.340 After World War II, the U.S. forged a system of military alliances and transnational economic and political institutions such as the United Nations, NATO, the International Monetary Fund, and the World Bank that remain in place today. The U.S. provides security for allies such as Germany and Japan, maintaining a strong military presence in Asia and Europe.341 Because of its overwhelming military might, the U.S. possesses what amounts to a “quasi-monopoly” on the use of force.342 This prevents other nations from launching wars that would tend to be truly de-stabilizing. Similarly, the United States provides a public good through its efforts to combat terrorism and confront—even through regime change—rogue states.343 The United States also provides a public good through its promulgation and enforcement of international norms. It exercises a dominant influence on the definition of international law because it is the largest “consumer” of such law and the only nation capable of enforcing it on a global scale.344 The U.S. “was the primary driver behind the establishment of the United Nations system and the development of contemporary treaties and institutional regimes to effectuate those treaties in both public and private international law.”345 Moreover, controlling international norms are sometimes embodied in the U.S. Constitution and domestic law rather than in treaties or customary international law. For example, whether terrorist threats will be countered effectively depends “in large part on U.S. law regarding armed conflict, from rules that define the circumstances under which the President can use force to those that define the proper treatment of enemy combatants.”346

These public goods provided by the United States stabilize the system by legitimizing it and decreasing resistance to it. The transnational political and economic institutions created by the United States provide other countries with informal access to policymaking and tend to reduce resistance to American hegemony, encouraging others to “bandwagon” with the U.S. rather than seek to create alternative centers of power.347 American hegemony also coincided with the rise of globalization—the increasing integration and standardization of markets and cultures—which tends to stabilize the global system and reduce conflict

348 The legitimacy of American hegemony is strengthened and sustained by the democratic and accessible nature of the U.S. government. The American constitutional separation of powers is an international public good. The risk that it will hinder the ability of the U.S. to act swiftly, coherently or decisively in foreign affairs is counter-balanced by the benefits it provides in permitting foreigners multiple points of access to the government.349 Foreign nations and citizens lobby Congress and executive branch agencies in the State, Treasury, Defense, and Commerce Departments, where foreign policy is made.350 They use the media to broadcast their point of view in an effort to influence the opinion of decision-makers.351 Because the United States is a nation of immigrants, many American citizens have a specific interest in the fates of particular countries and form “ethnic lobbies” for the purpose of affecting foreign policy.352 The courts, too, are accessible to foreign nations and non-citizens. The Alien Tort Statute is emerging as an important vehicle for adjudicating tort claims among non-citizens in U.S. courts.

353 Empires are more complex than unipolar or hegemonic systems. Empires consist of a rimless hub-and-spoke structure, with an imperial core—the preeminent state—ruling the periphery through intermediaries.354 The core institutionalizes its control through distinct, asymmetrical bargains (heterogeneous contracting) with each part of the periphery.355 Ties among peripheries (the spokes) are thin, creating firewalls against the spread of resistance to imperial rule from one part of the empire to the other.356 The success of imperial governance depends on the lack of a “rim.”357 Stability in imperial orders is maintained through “divide and rule,” preventing the formation of countervailing alliances in the periphery by exploiting differences among potential challengers.358 Divide-and-rule strategies include using resources from one part of the empire against challengers in another part and multi-vocal communication—legitimating imperial rule by signaling “different identities to different audiences.”359

Although the U.S. has often been labeled an empire, the term applies only in limited respects and in certain situations. Many foreign relations scholars question the comparison.360 However, the U.S. does exercise informal imperial rule when it has routine and consistent influence over the foreign policies of other nations, who risk losing “crucial military, economic, or political support” if they refuse to comply.361 The “status of force agreements” (SOFAs) that govern legal rights and responsibilities of U.S. military personnel and others on U.S. bases throughout the world are typically one-sided.362 And the U.S. occupations in Iraq and Afghanistan have a strong imperial dynamic because those regimes depend on American support.363

But the management of empire is increasingly difficult in the era of globalization. Heterogeneous contracting and divide-and-rule strategies tend to fail when peripheries can communicate with one another. The U.S. is less able control “the flow of information about its bargains and activities around the world.”364 In late 2008, negotiations on the Status of Force Agreement between the U.S. and Iraq were the subject of intense media scrutiny and became an issue in the presidential campaign.365 Another classic imperial tactic—the use of brutal, overwhelming force to eliminate resistance to imperial rule—is also unlikely to be effective today. The success of counterinsurgency operations depends on winning a battle of ideas, and collateral damage is used by violent extremists, through the Internet and satellite media, to “create widespread sympathy for their cause.”366 The abuses at Abu Ghraib, once public, harmed America’s “brand” and diminished support for U.S. policy abroad.367 Imperial rule, like hegemony, depends on maintaining legitimacy.

B. Constructing a Hegemonic Model

International relations scholars are still struggling to define the current era. The U.S.-led international order is unipolar, hegemonic, and, in some ways, imperial. In any event, this order diverges from traditional realist assumptions in important respects. It is unipolar, but stable. It is more hierarchical. The U.S. is not the same as other states; it performs unique functions in the world and has a government open and accessible to foreigners. And the stability and legitimacy of the system depends more on successful functioning of the U.S. government as a whole than it does on balancing alliances crafted by elite statesmen practicing realpolitik. “[W]orld power politics are shaped primarily not by the structure created by interstate anarchy but by the foreign policy developed in Washington.”368 These differences require a new model for assessing the institutional competences of the executive and judicial branches in foreign affairs.

One approach would be to adapt an institutional competence model using insights from a major alternative theory of international relations – liberalism. Liberal IR theory generally holds that internal characteristics of states – in particular, the form of government – dictate states behavior, and that democracies do not go to war against one another.369 Liberalists also regard economic interdependence and international institutions as important for maintaining peace and stability in the world.370 Dean Anne-Marie Slaughter has proposed a binary model that distinguishes between liberal, democratic states and non-democratic states.371 Because domestic and foreign issues are “more convergent” among liberal democracies, Slaughter reasons, the courts should decide issues concerning the scope of the political branches’ powers.372 With respect to non-liberal states, the position of the U.S. is more “realist,” and courts should deploy a high level of deference.373

A strength of Dean Slaughter’s binary approach is that it would tend to reduce the uncertainty in foreign affairs adjudication. Professor Nzelibe has criticized this approach because it would put courts in the difficult position of determining which countries are liberal democracies.374 But even if courts are capable of making these determinations, they would still face the same dilemmas adjudicating controversies regarding non-liberal states. Where is the appropriate boundary between foreign affairs and domestic matters? How much discretion should be afforded the executive when individual rights and accountability values are at stake?

To resolve these dilemmas, an institutional competence model should be applicable to foreign affairs adjudication across the board. In constructing a new realist model, it is worth recalling that the functional justifications for special deference are aimed at addressing problems of a particular sort of role effectiveness—which allocation of power among the branches will best achieve general governmental effectiveness in foreign affairs. In the 21st Century, America’s global role has changed, and the best means of achieving effectiveness in foreign affairs have changed as well. The international realm remains highly political—if not as much as in the past— but it is American politics that matters most. If the U.S. is truly an empire— and in some respects it is—the problems of imperial management will be far different from the problems of managing relations with one other great power or many great powers. Similarly, the management of hegemony or unipolarity requires a different set of competences. Although American predominance is recognized as a salient fact, there is no consensus among realists about the precise nature of the current international order.375 The hegemonic model I offer here adopts common insights from the three IR frameworks—unipolar, hegemonic, and imperial—described above.

First, the “hybrid” hegemonic model assumes that the goal of U.S. foreign affairs should be the preservation of American hegemony, which is more stable, more peaceful, and better for America’s security and prosperity, than the alternatives. If the United States were to withdraw from its global leadership role, no other nation would be capable of taking its place.376 The result would be radical instability and a greater risk of major war.377 In addition, the United States would no longer benefit from the public goods it had formerly produced; as the largest consumer, it would suffer the most.

Second, the hegemonic model assumes that American hegemony is unusually stable and durable.378 As noted above, other nations have many incentives to continue to tolerate the current order.379 And although other nations or groups of nations—China, the European Union, and India are often mentioned—may eventually overtake the United States in certain areas, such as manufacturing, the U.S. will remain dominant in most measures of capability for decades to come. In 2025, the U.S. economy is projected to be twice the size of China’s.380 The U.S. accounted for half of the world’s military spending in 2007 and holds enormous advantages in defense technology that far outstrip would-be competitors.381 Predictions of American decline are not new, and they have thus far proved premature.382

Third, the hegemonic model assumes that preservation of American hegemony depends not just on power, but legitimacy.383 All three IR frameworks for describing predominant states—although unipolarity less than hegemony or empire—suggest that legitimacy is crucial to the stability and durability of the system. Although empires and predominant states in unipolar systems can conceivably maintain their position through the use of force, this is much more likely to exhaust the resources of the predominant state and to lead to counter-balancing or the loss of control.384 Legitimacy as a method of maintaining predominance is far more efficient.

The hegemonic model generally values courts’ institutional competences more than the anarchic realist model. The courts’ strengths in offering a stable interpretation of the law, relative insulation from political pressure, and power to bestow legitimacy are important for realizing the functional constitutional goal of effective U.S. foreign policy. This means that courts’ treatment of deference in foreign affairs will, in most respects, resemble its treatment of domestic affairs. Given the amorphous quality of foreign affairs deference, this “domestication” reduces uncertainty. The increasing boundary problems caused by the proliferation of treaties and the infiltration of domestic law by foreign affairs issues are lessened by reducing the deference gap. And the dilemma caused by the need to weigh different functional considerations—liberty, accountability, and effectiveness—against one another is made less intractable because it becomes part of the same project that the courts constantly grapple with in adjudicating domestic disputes.