President Barack Obama has appointed Harold Koh to be Legal Advisor to the State Department. While a job with this title might seem to be relatively minor, it turns out that this position is quite influential and powerful. Koh’s views on the law indicate that he should not be confirmed by the Senate for this position.
Harold Koh is a transnationalist. What does that mean?
- International law and American law are not distinct
- International law should be incorporated into American law
- American courts should import international law, even when that law conflicts with American legal tradition and laws our elected representatives have passed
According to M. Edward Whelan III of the Ethics and Public Policy Center:
Transnationalists have three primary mechanisms for their revolution. First, they advocate a new understanding of “customary international law” (or CIL) in which they and other international elites, rather than state practice, generate the norms of new CIL and in which those norms supposedly are binding as federal common law. Second, they favor an extravagant reading of the treaty power in which treaties are presumptively self-executing (i.e., applicable as domestic law) and the treaty power is boundless in its scope (i.e., treaties can address the full range of domestic policymaking and thereby supplant — and even go beyond the scope of — congressional legislation). Third, they urge the Supreme Court to reinvent the meaning of constitutional provisions to reflect selected contemporary foreign and international practices. What transnationalism, at bottom, is all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.
The nomination of Harold Koh is dangerous for America. It holds the threat that American representative democracy will be subservient to world view. Our system of liberty and property rights is not respected all across the world. Transnationalism is a way for those who want to attack America to do so through law.