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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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See Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999) (upholding the validity of a “surrender agreement” between the United States and the International Criminal Tribunal for Rwanda despite the fact that the agreement took the form of a congressional-executive agreement and there was no precedent for such an agreement, which was akin to an extradition agreement, taking the form of anything but an Article II treaty).

Hathaway, Treaties’ End, supra note 96, at 1241 (arguing that “nearly everything that is done through the Treaty Clause can and should be done through congressional-executive agreements”).

See RAMSEY, supra note 11, 283–299 (discussing American Insurance Association v. Garamendi, 539 U.S. 396 (2003).) In Garamendi, the U.S.

Supreme Court struck down, by a 5–4 vote, a California insurance regulation act on the ground that it interfered with the President’s ability to conduct foreign relations).

26 [MAY 2013] However, their relationship to federal statutes remains unsettled.103 The problem is not particularly troubling because the executive utilizes this form of international agreement primarily to govern relations between the United States and other states or international entities, and the authority of the President to do so as the “sole organ” of U.S. foreign relations is widely acknowledged.104 Second, given the need for congressional cooperation on the implementation of treaties that have domestic consequences, the President simply ought not to ratify treaties unless and until he has lined up support for the required implementing legislation. To the extent that the domestic implementation of a treaty regime costs money, this is true whether the treaty is self-executing or non-selfexecuting. Either way, if the treaty is to have domestic efficacy, Congress must appropriate money, and so there is no point in entering into a treaty regime without first securing support for that regime in both Houses of Congress. Indeed, because the Constitution requires the President to “take care” that the laws are faithfully executed,105 the President may have a constitutional duty to ensure such support and such implementation. To the extent that treaties are laws, the President has a constitutional duty to ensure that Congress implements substantive treaty provisions.106 Finally, if all else fails and the United States is unable to abide by its international obligations by incorporating treaty norms into the domestic legal order, the President should give appropriate notice and lawfully withdraw the United States from the treaty regime.107 This solution is obviously not optimal, but it at least CRS, TREATIES, supra note 75, at 5.

United States v. Curtiss-Wright, 299 U.S. 304, 319 (1936).

U.S. CONST. art. II, § 3.

Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions? 90 CORNELL L. REV. 97 (2004) (concluding that the Take Care Clause entails a presidential duty to execute treaties); Edward T. Swaine, Taking Care of Treaties, 108 COLUM. L. REV. 331, 343–46 (2008) (assembling key statements from the Framers expressing the view that the President’s Take Care duties includes a duty to execute treaties).

See Vienna Convention on the Law of Treaties, U.N. Doc. A/Conf.39/27, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969), arts. 54–64 (providing mechanisms for lawful withdrawal from treaty obligations).

Monist Supremacy Clause 27 prevents any U.S. violation of its treaty obligations from being long-standing.

IV. CONCLUSION

While the U.S. Constitution’s Supremacy Clause contemplates a monist system in which treaty obligations would automatically become a part of the U.S. domestic legal order, structural, constitutional impediments, sounding in principles of federalism and separation of powers, present challenges to automatic treaty supremacy. The Supreme Court’s decision in Medellín further complicates these structural impediments to monism and in fact puts the United States on a path towards a dualist model that could negatively affect U.S. foreign relations. The United States has thus far been able to exploit its economic, diplomatic, and military strength to avoid any legal penalties that have arisen from its violation of its international treaty obligations. As a result, its current practice more resembles a dualist system, in which the federal government makes certain international commitments that it is unable to incorporate into the domestic legal order. There being no readily identifiable legal penalties for the resulting breaches, there really are two distinct legal orders; one pertaining to the United States in the conduct of its foreign affairs, and another pertaining to the United States in the conduct of its domestic affairs.

Should the United States relinquish its status as the world’s lone remaining superpower, it may be forced to confront the consequences of this dualism. There may be, from a legal perspective, no way to reconcile the Supremacy Clause’s monism with federalism and separation of powers principles. It thus falls to the political branches to work out a political solution so as to avoid repeated lapses in the United States’ fulfillment of its treaty obligations.

28 [MAY 2013]

BIBLIOGRAPHY

BOOKS Anthony Aust, Modern Treaty Law and Practice, 2d ed., Cambridge University Press, Cambridge, UK, 2007.





Jochen von Bernstoff, The Public International Law Theory of Hans Kelsen: Believing in International Law, Thomas Dunlap, transl., Cambridge University Press, Cambridge, UK, 2010.

Alexander Hamilton, John Jay and James Madison, The Federalist, Edward Mead Earle, ed., Modern Library, New York, New York, 1937.

Hans Kelsen, Pure Theory of Law, 2d ed. Max Knight, transl., University of California Press, Berkeley, CA, 1967.

Michael D. Ramsey, The Constitution’s Text in Foreign Affairs, Harvard University Press, Cambridge, MA, 2007.

Junius P. Rodriguez, ed., The Louisiana Purchase: A Historical and Geographical Encyclopedia, ABC-Clio, Santa Clara, CA, 2002.

David Sloss, ed., The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, Cambridge University Press, Cambridge, UK, 2009.

David L. Sloss, Michael Ramsey, & William S. Dodge (eds.), International Law in the U.S. Supreme Court: Continuity and Change Cambridge University Press, Cambridge UK, 2011.

Harold R. Syrett, ed., 20 The Papers of Alexander Hamilton, Columbia University Press, New York, NY 1974.

ARTICLES

Curtis A. Bradley, Intent, Presumptions and Non-Self-Executing Treaties, 102 American Journal of International Law 540 (2008).

Monist Supremacy Clause 29 Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harvard Law Review 869 (2007).

Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harvard Law Review 815 (1997).

Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale Law Journal 1236 (2008).

Oona A. Hathaway, Sabria McElroy & Sara Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale Journal International Law 51 (2012).

Duncan B. Hollis, Treaties—A Cinderella Story, 102 Proceedings of the American Society of International Law 1 (2008).

Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions? 90 Cornell Law Review 97 (2004).

John T. Parry, Congress, the Supremacy Clause, and the Implementation of Treaties, 32 Fordham International Law Journal 1209 (2009).

Edward T. Swaine, Taking Care of Treaties, 108 Columbia Law Review 331 (2008).

D.A. Jeremy Telman, Medellín and Originalism, 68 Maryland Law Review 377 (2009) Carlos M. Vázquez; Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame Law Review 1495 (2011).

Carlos M. Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harvard Law Review 559 (2008).

30 [MAY 2013] Carlos M. Vázquez, The Four Doctrines of Self-Executing Treaties, 98 American Journal of International Law 695, (1995).

INTERNATIONAL AGREEMENTS

Charter of the United Nations Art. 94(1), June 26, 1945, 59 Stat.

1031, TS No. 993, 3 Bevans 1153.

Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America, 8 Stat.

116 (1794).

Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. no. 6820.

Vienna Convention on the Law of Treaties, UN Doc.

A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969).

U.S. CASES American Insurance Association v. Garamendi, 539 U.S. 396 (2003).

United States v. Belmont, 301 U.S. 324 (1937).

Breard v. Greene, 523 U.S. 371 (1998).

Chae Chan Ping v. United States (The Chinese Exclusion Cases), 130 U.S. 581 (1889).

United States v. Curtiss-Wright, 299 U.S. 304 (1936).

Dames & Moore v. Regan, 453 U.S. 654 (1981).

Erie v. Tompkins, 304 U.S. 64 (1938).

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.

528 (1985).

Head Money Cases, 112 U.S. 580 (1884).

Monist Supremacy Clause 31 LaGrand v. Stewart, 525 U.S. 971 (1998).

Ex parte Medellín, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006).

Medellín v. Texas, 552 U.S. 491 (2008).

Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999).

Owings v. Norwood’s Lessee, 9 U.S. 344 (1809).

United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).

United States v. Pink, 315 U.S. 203 (1942) Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

Ware v. Hylton, 3 U.S. (3 Dall). 199 (1796).

Whitney v. Robertson, 124 U.S. 190 (1888).

INTERNATIONAL CASES

Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).

OTHER AUTHORITIES

5 Annals of Congress (1796).

Congressional Research Service, Treaties and Other International Agreements: The Role of the United States Senate, Government Printing Office, Washington, D.C., 2001.

James C. McKinley, Jr., Texas Executes Mexican Despite Objections, New York Times (Aug. 6, 2008).

Memorandum from President George W. Bush to Alberto R.

Gonzales, U.S. Attorney Gen. (Feb. 28, 2005).

American Law Institute, Restatement (Third) of The Foreign Relations Law of the United States, ALI, Philadelphia, PA, 1987.

32 [MAY 2013] Special Issue on the Domestic Status of Treaties, Valparaiso University Law Review 44 (2010), 759-956.



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