Analyzing the Obama Doctrine

Julie Dostal '19
Features Editor

Last Thursday, the J.B. Moore Society of International Law and the Virginia Journal of International Law co-sponsored a daylong symposium entitled The Obama Doctrine: International Law and Foreign Policy Under the 44th President. Co-Directors Lauren Sandground from the J.B. Moore Society and Gannam Rifkah from VJIL planned the symposium to feature three panels and one keynote address cohesively aimed at assessing four separate hallmarks of the Obama administration’s legal and policy decisions. The symposium also attempted to look forward to whether and how such initiatives will continue under President Trump. The ultimate question the symposium contemplated is what place in history will the Obama Doctrine will hold following the presidency of Donald Trump.

The symposium appropriately began with introductory remarks by UVa Law Professor Saikrishna Prakash on the executive’s power, or lack thereof, to issue executive orders and the possible questions and confusion arising from their implementation. Controversy surrounded a notable number of executive orders issued by President Obama during his eight-year presidency. From 2009 to 2017, President Obama issued 277 executive orders. While the former President issued one fewer executive order per year than former President George W. Bush and averaged fewer than any U.S. President in the last 120 years, the scope and weight of President Obama’s executive orders were a continued talking point in President Trump’s campaign platform.

President Obama’s executive orders were generally comparable in content to those of his two most recent predecessors. Under Presidents Clinton, Bush, and Obama, executive orders most frequently made changes related to government commissions, boards, and committees. However, former President Obama’s sweeping reforms in U.S. immigration policy, including the Deferred Action for Childhood Arrivals (DACA) program and his call for a one-third cut to carbon emissions, currently occupy a unique place in American political rhetoric. Professor Prakash briefly discussed the ability of President Trump to alter the policies implemented under the Obama administration with the use of his own executive orders. He then tackled the possible confusion surrounding President Trump’s presently issued executive orders. The future of key pieces shaping the current conception of the Obama Doctrine is unknown in the complicated and somewhat constitutionally vague realm of dueling Presidential executive orders.

Following the introductory remars, the symposium featured a three-person panel moderated by UVa Law professor John Norton Moore, discussing the Obama administration’s pivot to Asia. “Pivot” quickly became a buzzword for the Obama administration’s foreign policy shift from the Middle East to Asia-Pacific. An overarching topic driving panel discussion was the increase – or perceived increase – in the threat posed by North Korea and how the Trump administration’s response will define national security relationships in the region. On the topic of relationships, the panelists also unanimously agreed that the success of Japanese Prime Minister Shinzo Abe in creating a positive relationship with President Trump is envied by other Asia-Pacific leaders. In February, President Trump reaffirmed the United States’ dedication to the security of Japan. 

Further, each member of the panel highlighted a different aspect of the pivot. Georgetown Law Professor Jon T. Oliver discussed the intention of the Obama administration to expand trade relations by implementing the now-dead Trans-Pacific Partnership. Bloomberg News White House correspondent Toluse Olorunnipa went into detail about perceived differences in how the Obama and Trump administrations approach the region. Mr. Olorunnipa emphasized the importance the Obama administration placed on acting within relevant socio-cultural norms and additionally mentioned that this attention to cultural practices and preferences appeared to be lacking at the beginning of President Trump’s foreign policy interactions. The panel concluded that the pivot to the Asia-Pacific as an element of the Obama Doctrine is noticeably absent from the foreign policy prerogatives of the Trump administration. 

Following the “Pivot to Asia” discussion, UVa Law Professor Paul B. Stephan moderated a discussion between Georgetown Law Professor David P. Stewart and international law attorney Richard D. Klinger on the impact of the Justice Against Sponsors of Terrorism Act of 2016 (JASTA) on the Doctrine of Sovereign Immunity. In September 2016, Congress overrode President Obama’s veto of JASTA, allowing families of 9/11 victims to bring suit against instrumentalities of foreign nations that provide material support to terrorists. While the bill’s sponsors asserted that JASTA is narrowly drawn, the Obama administration contended that such legislation imperils Americans abroad. While the panelists engaged in a heavily technical discussion, a few takeaways were clear. The panelists first discussed the possible positives arising from the passage of JASTA. The Act is intended to compensate the family members of victims of terrorist attacks, who have no likely source to recover tortious or other forms of damages available to family members experiencing similar losses from differing causes. The Act may also provide a deterrent effect against state-sponsored terrorism. However, after a quick discussion of compensation and deterrence in a positive light, the panelists and moderator agreed that neither compensation nor deterrence were likely to result from bringing a suit under JASTA. Furthermore, both panelists warned about the dangers of expanding exceptions to Sovereign Immunity. Yet all three participants in the panel concurred that JASTA is not likely to be overturned due to the problematic reputational issues resulting from members of Congress attempting to disable a legal remedy for families who undoubtedly suffered a great personal tragedy on 9/11.

The symposium continued with a moderated discussion concerning the corporate challenges posed after the Joint Comprehensive Plan of Action (JCPOA) with Iran. UVa Law alum Eric J. Kadel who now serves as the principal partner in Sullivan & Cromwell’s international trade and investment practice, discussed the history of the JCPOA. NYU School of Law Professor Zachary K. Goldman, an expert on national security and international sanctions law, discussed the regulatory implications of the JCPOA. Finally, Lindsey Meyer, the head of the international trade practice for Venable LLP, enlightened the audience on the content of the plan, including a helpful analysis of the JCPOA’s primary and secondary sanctions. The two members of the panel actively involved in private litigation both expressed the difficulties facing their clients in entering into business dealings with Iran due to JCPOA sanctions. Banks and private interest entities continue to hesitate to enter the Iranian market. This panel more than any other questioned the survival of an Obama Doctrine element under the Trump administration. As relations with Iran become increasingly strained under the Trump administration, the weakening of sanctions against Iran and the continuation of the JCPOA is far from certain.

The symposium concluded with a keynote address titled, “Weathering the Perfect Storm: Can the United States Accommodate the Mass Migration of Refugees While Guarding Against Nefarious Actors and Combating Terrorism at Home and Abroad?” The keynote address was co-sponsored by the Immigration Law Program. UVa Distinguished Professor of Law David Martin introduced keynote speaker and fellow UVa Law alumnus Peter S. Vincent. As the current Assistant Director General of International Policy for Borderpol and the General Counsel for Thomson Reuters Special Services, LLC, Mr. Vincent is a leading expert on international intelligence information and cybersecurity. Mr. Vincent focused heavily on a forward-looking evaluation of immigration policy. Mr. Vincent concentrated on the rhetoric currently defining immigration. He attempted to explain the exclusionary and sometimes fearful presentation ofimmigrants and refugees in the United States as a manifestation of domestic issues. Mr. Vincent went so far as to call the opioid crisis and the loss of employment among the specific demographic of white men living in rural America a national security crisis based on the mass loss of life and an increase in hate crimes. In response to an audience question, Vincent was also quick to highlight the importance of the United States’ relationship with Mexico, specifically the assistance the Mexican government provides in our country’s attempts to halt the import of illicit substances across the border. The takeaway of the keynote panel echoed the conclusions of the previous three panels: the future of the Obama Doctrine is precarious at best, dependent on the decisions of both President Trump and a Republican Congress.