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Hastings Law Journal

Authors

Chantal Thomas

Abstract

This Article argues that the rise of economic regulation by international organizations is transforming federal government in much the same way as the rise of administrative agencies transformed it at the beginning of the twentieth century. Just as administrative agencies came to be recognized as a de facto "fourth branch" of federal government, United States participation in international economic organizations has generated a de facto "international branch" of federal government.

There are striking similarities between this international branch and the administrative branch; the differences that exist suggest the rise of international government may be even more revolutionary. The construction of this international branch, however, remains incomplete. There has not yet been a period of widespread popular deliberation on and input into how the international branch should look, and, as a result, there are some important defects in its current structure. Moreover, the text of the federal Constitution cannot offer clear guidance because it is indeterminate on the proper relationship between the United States government and the international order. The construction effort must fall back, therefore, on a consideration of fundamental values in American democracy. Yet American democratic theory is also an ambiguous guide because it pits the norm of transparency in government against the norm of efficiency in government, particularly with respect to economic policy. Ultimately, the new, international branch of federal government must balance these competing values. The ongoing effort to construct the international branch must correct its current tendency to privilege efficiency over openness and accountability. This reform will prove difficult, but it is essential to securing the legitimacy of international government.

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