International law, constitutional law, Clinton, and more

[Jonathan Miller]

I would argue that if a treaty has the same domestic legal effect as a 
law for separation of powers purposes, then Dames & Moore presumably 
gives you the answer.  If a court ever actually looked at the issue, it 
would need to focus on whether the President was acting contrary to the 
will of those who participated in the treaty process (the Executive and 
the Senate, unless the consent was by joint resolution) and would 
balance it against whether there is an emergency or other factor that 
justifies an expansive interpretation of Presidential authority.

Jonathan Miller  --

Volokh, Eugene wrote:

>     Well, Yvette was specifically asking about the "international law 
> question - rather than a domestic constitutional problem."  To the 
> extent that's so, I'm happy for now to set aside the purely 
> international law, non-domestic-constitutional-law problem.
>  
>     If we do think that international law affects the content of 
> domestic constitutional law -- so the question is an international law 
> question that bears on the domestic constitutional problem -- then 
> naturally we have to deal with the international law issue.  But it 
> seems to me that we'd have to explain why this effect is present, and 
> to what extent it's present.  That the U.S. makes a promise to foreign 
> countries surely exposes us to possible international reactions if we 
> break that promise; as a general matter, we should therefore be 
> hesitant to break those promises.
>  
>     But it hardly follows that breaking this promise is a violation of 
> the U.S. Constitution, especially when the promise was expressly made 
> non-self-executing.  And much as I don't like the idea of breaking 
> promises, it may sometimes be prudent and important to national 
> well-being -- or even to morality -- to break them (especially when, 
> though not only when, others are breaking them or see them as easily 
> breakable).  It may sometimes even be prudent and important to enter 
> into such international promises with the understanding that we might 
> break them; my sense is that many countries, including many generally 
> decent ones, do that routinely.  It's not clear to me why the 
> Constitution should be interpreted as preventing domestic actors from 
> engaging in such behavior.
>  
>     Let's then take an example:  Say that we conclude that it violated 
> the UN Charter for President Clinton to have authorized the use of 
> force in the former Yugoslavia without the Security Council's 
> permission (given Russia's veto).  I know there are debates about 
> whether this is so, but I believe that there's at least a plausible 
> argument that it is so, and let's assume this for the purposes of our 
> analysis.
>  
>     Does it follow that the President acted in a way that violates the 
> U.S. Constitution?  I would think not; I would say that the 
> international law questions related to interpretation of the Charter, 
> or to whatever exceptions there might be that might or might not 
> authorize such attacks, are not even relevant to the President's 
> domestic constitutional obligations (at least unless those provisions 
> of the Charter were ratified by the Senate on the theory that they are 
> self-executing).  Or am I mistaken?
>  
>     Eugene
>  
>   
>

-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784

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