Presidential Extra‐Territorialization: How Presidents Go Abroad to Bypass Domestic Constraint

ABSTRACT This paper introduces the concept of presidential extra‐territorialization—the process whereby presidents act through or within a foreign jurisdiction in order to achieve a policy goal which implicates the rights commonly held by US citizens or residents. At the heart of presidential extra‐territorialization is the practice of jurisdictional arbitrage, which is defined as the strategic leveraging of the differences between legal and political conditions in the United States and a foreign territory. Jurisdictional arbitrage allows the president to evade political or legal constraints that would prevent a president from carrying out an activity on US soil, generally because they infringe upon rights. After developing the concepts of extra‐territorialization and jurisdictional arbitrage and exploring empirical and normative aspects of them, the paper discusses three examples covering both Democratic and Republican presidential administrations. The paper also situates its contribution within the literature on executive agreements, which are the mechanism which enables presidential extra‐territorialization.