Curtis Bradley’s new book on Historical Gloss and Foreign Affairs is the definitive account of a mode of constitutional interpretation that has proven key to the development of foreign relations law, both within and outside the courts. Bradley is an enthusiastic supporter of using gloss and persuasively explains why doing so is often necessary given the “laconic” nature of the Constitution’s provisions related to foreign affairs (Chap. 2). At the same time, Bradley acknowledges the risk that reliance on historical gloss tends to favor the executive branch, which can act and stake out legal positions more easily than Congress (30). Bradley nonetheless argues that when one understands how Congress benefits from historical gloss, “Congress looks more formidable than it is sometimes described” (166) and “can often have the last word in foreign affairs” (167).
While Bradley convincingly shows that Congress sometimes benefits from gloss, he says less about how Congress can avoid losing out to gloss-based arguments by the executive. If congressional acquiescence is required for a valid executive branch claim of historical gloss (26), then what must Congress do to not acquiesce? In other words, what counts or should count as a congressional objection sufficient to defeat an executive branch claim of acquiescence?