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Congress, the Supremacy Clause, and the Implementation of Treaties

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Congress, the Supremacy Clause, and the Implementation of Treaties Fordham International Law Journal Volume 32, Issue 4 2008 Article 5 Congress, the Supremacy Clause, and the Implementation of Treaties John T. Parry∗ ∗ Copyright c 2008 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Congress, the Supremacy Clause, and the Implementation of Treaties John T. Parry Abstract This Article intervenes in the self-execution debate by revisiting the early American under- standings of treaty implementation in the decades before Foster. I first assess the significant mate- rials from the founding era, some of which have never before been discussed in this context. I also critique the interpretations of other commentators who have been too quick to find support for a broad notion of self-execution in the historical materials. Although I conclude the founding gener- ation generally assumed treaties would be law without congressional intervention, I emphasize that the ordinary story of consensus on these issues is inaccurate. Second, I analyze post-ratification controversies over these issues. The period between ratification and Foster saw sharp dispute about the scope of the treaty power and Supremacy Clause, particularly on issues the framers and ratifiers left unresolved. Contemporary accounts often ignore or minimize the importance of this period, which is unfortunate, because it complicates the history of treaty implementation in important ways. Third, this Article recovers an important aspect of the debate that contemporary scholars downplay: the role of Congress. Congress–and not the framers, ratifiers, or Supreme Court–most fully considered the problems of treaty implementation in this period. CONGRESS, THE SUPREMACY CLAUSE, AND THE IMPLEMENTATION OF TREATIES John T. Parry* I. INTRODUCTION The President has power to make treaties with the advice and consent of two-thirds of the Senate.' Once made, the Supremacy Clause declares treaties "the supreme law of the land."2 One might therefore assume treaties have the same sta- tus in the U.S. legal system as federal statutes; once adopted, they operate as law for all relevant purposes. One scholar has even argued that "it is difficult to imagine that something shall be supreme federal 'law of the land' but not operate directly as 'law' except by believing in one of the most transparent of judi- 3 cial delusions." But the treaty power and Supremacy Clause are deceptively clear. The Constitution also vests Congress with the power to legislate in specific areas, such as the authority "to lay and collect taxes, duties, imposts and excises," and "to regulate commerce with foreign nations."4 Congress's Article I powers risk colliding with the Article II powers of the President and Senate. What happens when a treaty purports to control a matter within the legislative jurisdiction of Congress? What if the treaty conflicts with an existing statute, or if a subsequent statute conflicts with an existing treaty? In 1829, the Supreme Court gave a partial answer to these questions when it announced in Foster v. Neilson that treaties fall into two categories for judicial purposes: * Professor of Law, Lewis & Clark Law School. I am grateful for the comments, thoughts, and assistance of Curtis Bradley, Jacob Katz Cogan, Neal Devins, Louis Fisher, Calvin Johnson, Martin Lederman, Jules Lobel, Pauline Maier, Michael Ramsey, An- drew Shankman, David Sloss, and Seth Barrett Tillman, as well as participants in the 2008 International Law in Domestic Courts Workshop at Temple Law School. Lynn Williams at Lewis & Clark's Boley Law Library provided invaluable assistance with hard- to-find materials. 1. U.S. CONST., art. II, § 2, cl.2. 2. Id., art. VI, cl. 2. 3. JORDAN PAUST, INTERNATIONAL LAw AS LAW OF THE UNITED STATES 71 (2d ed. 2003). 4. U.S. CONST., art. I, § 8, cls. 1, 3. 1209 1210 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 32:1209 Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty ad- dresses itself to the political, not the judicial department; and the legislature must execute the contract before it can be- come a rule for the Court.5 This doctrinal statement means some treaty provisions go into effect as judicially enforceable law without implementing legislation, while other provisions require legislation. Further, some treaties may not be law for judicial purposes, but they may grant power directly to the executive branch without legislative intervention. That is to say, all treaties may be the supreme law of the land for the purpose of creating international legal obliga- tions, but the precise domestic legal effect and status of their provisions-including their impact on existing law-is anything but uniform.6 In recent years, scholars have clashed over the best interpre- tation of Foster, including whether there should be a presump- tion for or against treaties having the status of judicially enforce- able law-that is, as being self-executing.7 Although the weight 5. 27 U.S. (2 Pet.) 253, 314 (1829). 6. For general discussions, see Paul B. Stephan, III, Open Doors, 13 LEwis & CLARK L. REv. 11 (2009); Carlos Manuel Vzquez, The FourDoctrines of Self-Executing Treaties, 89 AM. J. INT'L L. 695 (1995). 7. See generally Martin S. Flaherty, History Right?: HistoricalScholarship, Original Un- derstanding, and Treaties as "Supreme Law of the Land", 99 COLUM. L. REV. 2095 (1999); Vasan Kesavan, The Three Tiers of Federal Law, 100 Nw. U. L. REv. 1479 (2006); Caleb Nelson, The Treaty Power and Self-Execution: A Comment on Professor Woolhandler's Article, 42 VA. J. INT'L L. 801 (2002); PAUST, supra note 3; David Sloss, Non-Self-Executing Treaties: Exposing a ConstitutionalFallacy, 36 U.C. DAvis L. REv. 1 (2002); Carlos Manuel Vdzquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REv. 1082 (1992) [hereinaf- ter Vzquez, Treaty-Based Rights and Remedies]; Carlos Manuel Vdzquez, Laughing at Trea- ties, 99 COLUM. L. REv. 2154 (1999) [hereinafter Vdzquez, Laughing at Treaties]; Carlos Manuel Vdzquez, Treaties as Law of the Land: The Supremacy Clause and theJudicialEnforce- ment of Treaties, 122 HARV. L. REv. 599 (2008) [hereinafter Vdzquez, Treaties as Law of the Land]; Ann Woolhandler, Treaties, Self-Execution, and the Public Law Litigation Model, 42 VA. J. INT'L L. 757 (2002); John C. Yoo, Globalism and the Constitution: Treaties, Non-Self- Execution, and the Original Understanding,99 COLUM. L. REv. 1955 (1999) [hereinafter Yoo, Globalism and the Constitution];John C. Yoo, Treaties and Public Lawmaking: A Tex- tual and StructuralDefense of Non-Self-Execution, 99 COLUM. L. REV. 2218 (1999) [hereinaf- ter Yoo, Treaties and Public Lawmaking]. A related debate concerns the interaction of the treaty power and federalism. See, e.g., Curtis A. Bradley, The Treaty Power and Ameri- 2009] THE IMPLEMENTATION OF TREATIES 1211 of scholarly assertion tends toward a presumption of self-execu- tion as a matter of historical accuracy and normative desirability, the Supreme Court rejected this view last Term in Medellin v. Texas8 and came very close to establishing a presumption against self-execution.9 The Court declared a treaty is "of course, 'pri- marily a compact between independent nations"' and "ordina- rily 'depends for the enforcement of its provisions on the inter- est and the honor of the governments which are parties to it.' ,10 "Only '[i]f the treaty contains stipulations which are self-execut- ing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment."' 11 The text of the treaty is crucial. Courts must ask "whether a treaty's terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect."' 2 In short, for the Medellin Court, treaties are a matter of international politics. Sometimes they also have a status similar to legislation, but only if the language of the treaty supports such an interpretation." This Article intervenes in the self-execution debate by revi- siting the early American understandings of treaty implementa- tion in the decades before Foster. I first assess the significant materials from the founding era, some of which have never before been discussed in this context. I also critique the inter- pretations of other commentators who have been too quick to find support for a broad notion of self-execution in the historical materials. Although I conclude the founding generation gener- ally assumed treaties would be law without congressional inter- vention, I emphasize that the ordinary story of consensus on can Federalism, 97 MICH. L. REv. 390 (1998); David M. Golove, Treaty-Making and the Nation: The HistoricalFoundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REv. 1075 (2000). 8. 128 S. Ct. 1346 (2008). 9. Id. at 1357. 10. Id. (quoting Head Money Cases, 112 U.S. 580, 598 (1884)). 11. Id. (quoting Whitney v. Robinson, 124 U.S. 190, 194 (1888)). 12. Id. at 1366. 13. The Court also said in a footnote that even when a treaty is self-executing, "the background presumption is that '[i] nternational agreements, even those directly bene- fiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.'" Id. at 1357 n.3 (quoting RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 907 cmt. a (1986)). For some of the implications of this statement, see John T. Parry, A Primer on Treaties and § 1983 after Medellin v.
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