Let’s say you’re a soldier and you get a directive that’s against the law.
You’re under no requirement to obey, right? “Lawful order” and all that.
But what happens when you get an order that’s not against the law but it isn’t consistent with the U.S. Constitution?
Doug Feith at the WSJ provides a query on the basic question “Who makes laws for Americans?”
The standard answer, drawing on the Constitution, is Congress. One of American democracy’s quaint conceits, after all, is that laws should be made by the people American voters have elected.
But that old-school answer doesn’t satisfy those in the progressive "transnational legal norms" movement. Frustrated that elected officials often refuse to enact the measures they favor, these reformers aim to persuade judges that progressive ideas on war crimes, arms control, the death penalty and other matters should be accepted as rights. They encourage judges to ground these rights not in local statutes produced by legislators, but in treaties, laws and court decisions of other countries, in academic writing, and in customary international law.
While Feith is writing on the unratified Protocol 1 to the Geneva Conventions regarding the laws of war, the implications are everywhere, to include U.S. participation in the European Union’s Space Code of Conduct.
This legal movement, potent in Europe, has had less success in this country, where citizens fervently safeguard democratic accountability and national sovereignty.
Feith closes with this:
Mr. Obama has the constitutional authority to make his own detainee policy. And, if he wants to, he can issue a regulation or an executive order using principles from Article 75. But the Constitution does not empower him to recognize as a legal obligation a part of a treaty that the Senate has never approved.
So if the EU’s Space Code of Conduct is embraced (directed) as policy but not law, all is well?