president and treaty powers

[david golove]

Although I do not agree with Eugene in all respects -
and understand the implications of some of his
normative propositions somewhat differently than he
does - nevertheless he is quite right in his
suspicions about the current state of the law. In my
view - and I suspect that this is a widely shared view
among scholars of the constitutional law of foreign
affairs - the last in time rule applies to both
bilateral and multilateral treaties, human rights and
mutual defense treaties, etc. However unfortunate it
might be for Congress to pass a statute placing the
U.S. in violation of its treaty obligations, the
courts will enforce Congress's will if clearly
expressed. Moreover, although the Supreme Court may
never have considered the case of a multilateral
treaty, the lower courts surely have (the Diggs case
in the DC Circuit for example), and there is very
little reason to expect a different result should a
case raising the issue ever go to the Court. None of
this is to say that the last in time rule was
inevitable, is followed in all other countries, is
necessarily required by principles of popular
sovereignty, follows from the Supremacy Clause, or
could not be revised. Likewise, the same applies to
customary international law, including even jus cogens
norms. Few U.S. scholars have any substantial doubt
about Congress' power to override a principle of
customary international law. The principle debates
have been over whether a new principle of customary
international law will override a preexisting
congressional statute (i.e., do customary law norms
get the benefit, as well as the detriment, of the
last-in-time rule), whether and when the President can
violate customary law, and more recently (as was
reflected in some earlier posts) over the relationship
between customary law and state law. Professor
Martin's approach may or may not be desirable, but it
is far more reformist than status quo in spirit.


--- "Volokh, Eugene" <VOLOKH at mail.law.ucla.edu> wrote:
>         I wonder whether other members of the list
> agree that U.S. courts
> would refuse to enforce a duly enacted Congressional
> Act because it
> contradicts an earlier-ratified treaty.
>
>         It seems to me that this would be quite a
> striking constraint on
> self-government, especially since the only other
> alternative Prof. Martin
> suggests -- the enactment of a new treaty --
> requires the cooperation of at
> least one foreign nation *and* the President.  I had
> thought that under our
> system of government, the Congress, especially when
> acting with a veto-proof
> majority, could enact any laws that do not violate
> the Constitution itself.
> Is there any caselaw that should lead us to think
> the contrary?
>
>         By the way, it might be good for me to make
> explicit what has been
> implicit throughout all my posts on this subject:  I
> think that it is often
> quite wise for Americans to enter into treaties, and
> I think that once we
> enter into such a treaty, we may well have a moral
> obligation not to
> abrogate the treaty except in certain accepted ways.
>    But in my view the
> essence of our constitutional self-government is
> that we Americans govern
> ourselves, and if it seems necessary to do so, we
> may -- acting through our
> duly authorized legislative body -- enact whatever
> laws do not conflict with
> our own (not someone else's) Constitution, without
> any interference from the
> judiciary or the executive.  This may be a breach of
> faith with other
> nations, and may bring down their wrath (perhaps
> justifiable wrath) on us --
> but it is a decision for us and our duly elected
> legislators, not for
> judges, the President, or foreign nations to make.
>
>         Again, if there's caselaw to the contrary, I
> would love to hear it,
> but it would frankly much surprise me to think that
> this pretty basic axiom
> of self-government is not indeed the case.
>
> > -----Original Message-----
> > From: Francisco Forrest Martin
> [SMTP:ricenter at IGC.ORG]
> > Sent: Thursday, August 10, 2000 4:53 PM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: president and treaty powers
> >
> > Prof. Volokh wrote:
> > "Might I ask Prof. Martin to again clarify what
> exactly is meant here by
> > "cannot" and "may."  Is the claim that it would
> violate international law,
> > in the eyes of the international community, for
> Congress to just enact a
> > statute that repudiates the treaty?"
> >
> > Clearly yes, according to the Restatement.
> >
> > Prof. Volokh wrote:
> >
> > "Or is it that as a matter of domestic U.S. law, a
> Congressional statute
> > that repudiates the treaty will not be enforced,
> and the treaty (if it is
> > self-executing) will be enforced instead until it
> is abrogated by a new
> > multilateral treaty?"
> >
> > To date, many U.S. courts have interpreted the
> Last-in-Time Rule to mean
> > that a federal statute trumps an earlier bilateral
> treaty.  However, there
> > are other cases to the contrary dealing with,
> e.g., "vested rights." Prof.
> > Paust has written some good articles about this
> issue.  My point is that
> > multilateral human rights treaties are a different
> "animal," and no court
> > has yet applied the Last-in-Time Rule to such
> treaties.
> >
> > Prof. Volokh wrote:
> >
> > "To have a concrete example, let's assume the
> following:  The President
> > signs and the Senate ratifies a self-executing
> treaty.  U.S. courts later
> > interpret the treaty to, say, require state
> hospitals to provide
> > abortions.  Congress disagrees and enacts a
> statute (duly signed by the
> > President, or vetoed but then re-enacted by the
> requisite 2/3 majority)
> > that repudiates the treaty, and declares that
> state hospitals are no
> > longer federally obligated to provide abortions.
> Is the claim that a U.S.
> > court would have the obligation to continue
> enforcing the treaty,
> > notwithstanding the statute?"
> >
> > Yes, I believe that a court would be required to
> continue enforcing the
> > treaty.  And, by the way, this example probably
> actually does reflect U.S.
> > international legal obligations.  The ICCPR
> prohibits discrimination on
> > the basis of "other status," which includes
> wealth, and prohibits
> > disparate discrimination.  Simunek v. Czech
> Republic (1995).  The U.S.'
> > Understanding deposited with its instrument of
> ratification that states
> > such discrimination may be allowed if it fulfills
> a minimum rational basis
> > test probably is unconstitutional under City of
> Bourne v. Flores.
> >
> > Francisco Forrest Martin
> > Ariel F. Sallows Professor in Human Rights
> > University of Saskatchewan College of Law
>


__________________________________________________
Do You Yahoo!?
Kick off your party with Yahoo! Invites.
http://invites.yahoo.com/