War

[Fisch, William B.]

I quite agree with the view that the later-in-time rule has not changed with respect to treaties and Acts of Congress.  I think that there is no significant evidence of the development of authority, applicable in a U.S. domestic court, that would give any treaty priority over a subsequent Act of Congress clearly inconsistent with it.  As for Prof. Martin's question of how one can apply the later-in-time rule to a multilateral treaty, I should think it quite simple: identify the date on which the treaty in question entered into force for the U.S. (a combination of currently valid U.S. ratification and the entry into force of the treaty according to its own terms), and ask whether the Act of Congress in question took effect after that date.  Each requirement may have its potential complications, but they can be sorted out, and the U.S. Supreme Court will be the ultimate arbiter of whether they have been met.
Bill Fisch