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«A Monist Supremacy Clause and a Dualistic Supreme Court: The Status of Treaty Law as U.S. Law D. A. Jeremy Telman Valparaiso University School of ...»

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L. REV. 869 (2007); Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Numerous scholarly essays

on the topic are gathered in International Law in the U.S. Supreme Court:

Continuity and Change (David L. Sloss, et al. eds., 2011).

U.S. CONST. art. VI, 2.

Monist Supremacy Clause 7 that it puts into force international law for the state concerned, but merely that international law—by a general clause—is transformed into national law.

Such transformation is needed, if the organs of the state, especially its tribunals are authorized (by the constitution) to apply national law; they can, therefore, apply international law only if its content has assumed the form of national law.... 19 However, when the Supremacy Clause is considered in the context of the Constitution as a whole, neither the Constitution nor U.S.

constitutional history provides unequivocal support for a monistic interpretation of the domestic legal order.

The Supremacy Clause raises problems from the perspectives of both federalism, that is, the allocation of powers between the federal government and several states, and the separation of powers among the three branches of the federal government.

While the Framers clearly wanted to resolve the federalism issues in favor of a federal government empowered to bind the states through treaties, they did not establish clear mechanisms for doing so and would have had difficulty doing so because the issue was so explosive. Still, after a few controversies during the Early Republic, the issue did not arise in earnest until the late twentieth century.20 The separations of powers implications of the Supremacy Clause are far more vexing. If treaty law automatically became incorporated into the U.S. domestic legal order, the executive branch rather than the legislature could be the source of domestic law. U.S. courts still struggle to specify how treaty obligations can have domestic legal effect without federal implementing legislation and to identify the mechanisms that provide private rights of action in domestic courts where obligations arising under international law have been violated.

KELSEN, supra note 2, at 336–37.

See Michael P. Van Alstine, Treaties in the Supreme Court, 1901–1945, in

SLOSS ET AL., INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUITY

AND CHANGE 191, 194–206 (detailing how the Supreme Court routinely enforced the United States’ international commitments of domestic law in the first half of the twentieth century).

8 [MAY 2013] A. The Supremacy Clause and Monism The Framers of the U.S. Constitution intended to incorporate treaties into domestic law with something like direct effect. The purpose of the Supremacy Clause was to prevent U.S. treaty violations “by empowering the courts to enforce treaties at the behest of affected individuals without awaiting authorization from state or federal legislatures.”21 The Framers viewed this presumption of “self-execution,” as it came to be called, as a marked departure from the laws of England and to American practice under the Articles of Confederation.22 As Justice Breyer noted in his dissent in Medellín,23 the Framers thought the Supremacy Clause was necessary to prevent the federal government from being embarrassed by state regulation that substantially frustrated the government’s ability to comply with treaty obligations, as had occurred in the 1780s.24 Although the drafters of the U.S. Constitution debated the matter and reached a clear consensus that treaties should have direct effect as domestic law, they did not specify how that result would be achieved.25 While James Madison hinted vaguely at a role for the House of Representatives in implementing at least some treaties, John Jay thought it acceptable if treaties were made binding without the approval of the legislature. He did not view legislatures as the exclusive source of law, because courts can also make law. Nor did he think it appropriate that the legislature have a power to repeal treaties, because treaties are a pact between two Carlos M. Vázquez, The Four Doctrines of Self-Executing Treaties, 98 AM.

J. INT ’L L. 695, 696 (1995) [hereinafter Vázquez, The Four Doctrines].

John T. Parry, Congress, the Supremacy Clause, and the Implementation of Treaties, 32 FORDHAM. INT’L L.J. 1209, 1217–18 (2009); Vázquez, The Four Doctrines, supra note 21, at 698.

Medellín v. Texas, 552 U.S. 491, 543–44 (Breyer, J., dissenting, 2008).

See THE FEDERALIST NO. 42, at 270 (Edward Mead Earle ed., 1937) (J.

Madison) (noting that the power of the federal government to enter into treaties was “frustrated by regulations of the states” under the Articles of Confederation).

See Parry, supra note 22, at 1223–27 (concluding that while the Constitutional Convention reached an agreement about treaties, “it failed to explore the implications of that agreement”).

Monist Supremacy Clause 9 states and one party should not be permitted unilaterally to cancel such a bargain.26 The issues that the Framers failed to resolve at the Constitutional Convention gave rise to lively debates in the state ratification assemblies. During the ratification debates, the supporters of the Constitution, known as Federalists, took a number of positions. Nearly all agreed that treaties would be supreme law, overriding inconsistent state law. Some went further and argued that all treaties would be self-executing and would trump federal statutes. But leading Federalists, including Alexander Hamilton and Madison, acknowledged that, whether or not treaties were law, they could only be implemented effectively through action by both Houses of Congress. Anti-Federalist positions mirrored those of the Federalists and were at least as divergent. Not surprisingly, among Federalists, Madison seems to have had the greatest appreciation for the dangers self-executing treaties posed for the constitutional doctrine of separation of powers. Unfortunately, Madison reached no clear conclusions.27 B. Structural Constitutional Elements Suggesting Dualism In the decades that followed, constitutional tensions between the Supremacy Clause and both federalism and separation of powers doctrines became a source of political contestation. The states were reluctant to accept the supremacy of treaty law over their sovereign power. At the same time, the House of Representatives sought a greater role in the approval and implementation of legal norms arising from treaty obligations. The federalism issue was settled quite quickly and largely remained settled in favor of the federal government until the end of the Compare THE FEDERALIST NO. 53, at 351–52 (J. Madison) (observing that treaty implementation will “sometimes demand particular legislative sanction and cooperation”) with THE FEDERALIST NO. 64, at 421 (J. Jay) (describing treaties as binding and “beyond the reach of legislative acts”).





Parry, supra note 22, at 1228–64 (reviewing relevant debates in the states’ ratification assemblies).

10 [MAY 2013] twentieth century.28 Early in the nineteenth century, Chief Justice John Marshall introduced the distinction between self-executing and non-self-executing treaties in order to address separation of powers concerns. 29 The U.S. Constitution provides that treaties are ratified by the President with the “advice and consent” of two-thirds of the Senate.30 The House of Representatives has no formal role in the approval of treaties, nor do the states, although because Senators are elected on a state-wide basis, they are supposed to represent the state interests in the federal government.31 If the President and the Senate can pass supreme law with direct domestic effect, they can bypass the House of Representatives and thus leave out of the legislative process one of the two houses of the legislature.

Because Representatives are elected every two years,32 the House is the most democratically accountable branch of the U.S.

government. If the Framers’ purpose was to establish a representative government responsive to the wills of the electorate, it would be especially problematic if Congress’s legislative primacy could be bypassed through the treaty power. Moreover, permitting the President and the Senate to bypass the House of Representatives through the treaty power would be politically See Lori F. Damrosch, Medellín and Sanchez-Llamas: Treaties from John Jay to John Roberts, in SLOSS ET AL., INTERNATIONAL LAW IN THE U.S.

SUPREME COURT: CONTINUITY AND CHANGE 451, 457–58 (noting that Medellín and other, similar cases rejecting the enforceability of treaty rights in favor of state procedural rules “arguably invert the priority established by the Supremacy Clause” and intimating that the Supreme Court would not have considered doing so until recently).

See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (finding a treaty between the United States and Spain to be non-self-executing). But see United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833) (reviewing the Spanish text of the same treaty and finding the treaty to be self-executing).

U.S. CONST. art. II, § 2, cl. 2. 6.

See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551–53 (1985) (citing authorities on the ways in which the federal government is designed to be responsive to the interests of the states); RAMSEY, supra note 11, at 300–17 (noting that the treaty power was not originally viewed as a threat to the states because state legislatures controlled election to the Senate).

U.S. CONST. art. I, § 2, cl. 1.

Monist Supremacy Clause 11 hazardous, because all appropriations bills must begin in the House.33 The executive branch could, with the blessing of the Senate, commit the United States to international obligations that Congress could prevent it from fulfilling. The result would be an untenable dualism.

Madison recognized this problem during the ratification debates. Although he viewed treaties as supreme law,34 he acknowledged that commercial treaties might require “particular legislative sanction and cooperation.”35 Hamilton also recognized that some treaties could not be implemented fully without congressional participation. At times, however, Madison suggested that the participation of the Senate alone was enough, and Hamilton concluded that Congress had a duty to implement obligations entered into through treaty.36 The Framers thus transformed the legal question into a political question, and that is where things have remained to this day.

While the House of Representatives has no formal, constitutional role in treaty making, treaties with domestic consequences require House approval for implementation. If the United States were to enter into a treaty without first securing congressional support, it would likely take on an international obligation that it could not fulfill due to domestic impediments, thus putting the government in violation of its international obligations and negating any substantive or foreign policy benefits that might derive from participation in the treaty regime.

III. INTERNATIONAL LAW DUALISM IN CONSTITUTIONAL PRACTICE

Because the Framers of the U.S. Constitution did not resolve the tensions between the Supremacy Clause and two structural elements of the Constitution, federalism and the separation of powers, the status of international law in the U.S. domestic order has been far more a product of U.S. constitutional history than it U.S. CONST. art. I, § 7, cl. 1.

THE FEDERALIST NO. 44, at 295–96 (J. Madison).

THE FEDERALIST NO. 53, 352 (J. Madison).

THE FEDERALIST NO. 75, at 486 (A. Hamilton).

12 [MAY 2013] has been determined by the text of the Constitution. The separation of powers issue was resolved in part through political mechanisms and in part through the doctrine of non-self-execution.

The federalism issue seemed resolved early in U.S. history in favor of treaty supremacy. The U.S. Supreme Court’s decision in Medellín calls that resolution into question.

The tension between the Supremacy Clause and the doctrine of separation of powers led almost immediately to a constitutional crisis over the implementation of the Jay Treaty with Britain of

1794.37 The Jay Treaty was in part a commercial treaty, and as the Constitution allocates powers over international commerce to Congress, leaders of what would become the Jeffersonian Republican Party in the House of Representatives, including James Madison and Albert Gallatin (Jefferson’s Treasury Secretary), insisted on a congressional role in implementing the Jay Treaty.38 Federalists sought to insist that treaties were supreme and that the House of Representatives had a duty to pass laws necessary to implement them.39 In the end, the House of Representatives narrowly approved appropriations to implement the treaty but refused to acknowledge its duty to do so.40 Republicans in the House similarly objected to the surrender of a criminal suspect pursuant to extradition provisions of the Jay Treaty that had never been implemented through congressional legislation.41 Republican insistence on a role for the House of Representatives in the treaty process diminished markedly during Thomas Jefferson’s administration when it became necessary to bring negotiations with France over the Louisiana Purchase to a Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America, 8 Stat. 116 (1794).

5 ANNALS OF CONGRESS 437 (1796).

Id. at 722. Hamilton made similar arguments in the press. See 20 THE PAPERS OF ALEXANDER HAMILTON 3 ff. (Harold R. Syrett ed., 1974).

5 ANNALS OF CONGRESS 1291 (___).

See Parry, supra note 22, at 1295–1303 (summarizing congressional debates from 1800).



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