Disaggregating deference: The judicial power and executive treaty interpretations

Iowa Law Review

Volumn 92, Issue 5, 2007, Pages 1723-1782

  Chesney, Robert M ^a  

^a WAKE FOREST UNIVERSITY   (United States)

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EID: 34948862283     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (342)

1. This Article focuses on treaty interpretation, to the exclusion of the parallel issues that might arise with respect to other forms of international agreement, largely because the courts have addressed the deference issue thus far only in the treaty context. Whether and to what extent judges do, or should, defer to executive-branch interpretations in other contexts is an important question but one beyond the scope of this Article. Cf. Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1243 (2007) (presuming that "the executive retains substantial capacity to interpret and even abandon executive-made law" as in the case of sole executive agreements).
2. Cf. Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions!, 90 CORNELL L. REV. 97, 180 (2004) (observing that a treaty will bind the executive only in a formal but not a practical sense if courts refrain from reviewing executive interpretations out of a sense of deference or any of several other doctrines of restraint).
3. Marbury v. Madison, 5 U.S. 137, 177 (1803).
4. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). The Court in Chevron did not perceive itself as ceding any of its interpretive authority to the executive branch but rather indulged the assumption that Congress, in enacting ambiguous language, implicitly intended to delegate authority to resolve the ambiguity to the agency responsible for implementing the statutory scheme. On this theory, deferring under Chevron is itself an act of statutory interpretation.
5. For an insightful discussion, see generally Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833 (2001).
6. See David Sloss, Judicial Deference to Executive Branch Treaty Interpretations, 62 N.Y.U. ANN. SURV. AM. L. 497, 505-23 (2007) (surveying treaty-interpretation cases in which the United States was a party from 1789 through 1838 and concluding that courts in that era did not defer at all to executive interpretations).
7. See infra Part III.C (reviewing the cases in which the Court articulated the doctrine). The Restatement (Third) of the Foreign Relations Law of the United States recognizes the deference doctrine. Section 326(2) asserts that courts have "final authority to interpret an international agreement for purposes of applying it as law in the United States" but acknowledges that courts nonetheless "will give great weight to an interpretation made by the Executive Branch."
8. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 326(2) (1987).
9. See, e.g., David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 U.C.LA. L. REV. 953, 960-63 (1994).
10. Hamdan v. Rumsfeld, 415 F.3d 33, 35-36 (D.C Cir. 2005).
11. See id. at 41.
12. Id. at 42 (emphasis added).
13. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796-98 (2006).
14. Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2685 (2006).
15. See G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL 33-93 (2000) (documenting upheaval in an array of constitutional doctrines relating to foreign affairs);
16. see generally G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1 (1999) (same).
17. White, supra note 13.
18. David Sloss recently observed that the judicial branch became more deferential to the executive in foreign affairs cases in conjunction with the "rise of executive dominance in foreign affairs" that accompanied the growth of American power. Sloss, supra note 5, at 523 & n.143.
19. Bederman, supra note 7.
20. See Martin Flaherty, Globalization and Executive Power 5-20 (unpublished manuscript, on file with the Iowa Law Review).
21. See, e.g., Ahmed E. Taha, Data and Selection Bias: A Case Study, 75 U.M.K.C. L. REV. 171, 173-74 (2006) (discussing the selection bias inherent in reliance on datasets compiled from published judicial opinions).
22. The following account of Hamdan's actions is based on the lengthy profile provided by Jonathan Mahler in The Bush Administration v. Salim Hamdan, N.Y. TIMES MAG., Jan. 8, 2006, at 44.
23. Hamdan v. Rumsfeld, 415 F.3d 33, 41 (D.C Cir. 2005) (quoting Geneva Convention Relative to the Treatment of Prisoners of War ("GPW"), art. 3(1) (d), Aug. 12, 1949, 75 U.N.T.S. 135).
24. Hamdan, 415 F.3d at 41.
25. Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 75 U.N.T.S. 135.
26. President George W. Bush, to the Vice President, et al., on Humane Treatment of Al Qaeda and Taliban Detainees, (Feb. 7, 2002) at ¶ 2.c,
27. reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter TORTURE PAPERS].
28. See Memorandum from Jay Bybee, Legal Counsel to White House, on Treaties and Laws to Al Qaeda and Taliban Detainees to Alberto Gonzales, Legal Counsel to White House, and William J. Haynes, Defense Department General Counsel (Jan. 22, 2002),
29. reprinted in TORTURE PAPERS, supra note 23, at 85-89.
30. See id.
31. Hamdan, 415 F.3d at 33.
32. Id. at 41 (citing United States v. Stuart, 489 U.S. 353, 369 (1989);
33. SemitoneSumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,185 (1982);
34. Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)).
35. Id. (quoting Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003)).
36. The majority also stated that "the President's decision to treat our conflict with the Taliban separately from our conflict with al Qaeda is the sort of political-military decision constitutionally committed to him." Id. at 41-42 (citing Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986)). That is not a question of treaty interpretation, however; the Geneva Conventions do not address the question of whether and how to distinguish among simultaneous conflicts. Thus, while it may be correct to say that the President's decision to distinguish between these conflicts is unreviewable-for lack of judicially manageable standards, among other reasons - it does not follow that executive treaty interpretations are unreviewable as well.
37. Id. at 42 (emphasis added).
38. Hamdan v. Rumsfeld, 126 S. Ct 2749 (2006). Notably, the Court reached the Common Article 3 issue not because the Geneva Conventions were deemed to be directly enforceable via habeas, but rather because the Court construed the Uniform Code of Military Justice to incorporate Common Article 3 by reference with respect to the issue of military commissions.
39. See id. at 2786.
40. Id. at 2795.
41. Id.
42. Id.
43. See id at 2796.
44. See Hamdan, 126 S. Ct. at 2796.36. The Bush Administration took the position that the armed conflict between the United States and al Qaeda was beyond the scope of Common Article 2 of the Geneva Conventions because the conflict was not between two parties to the Conventions.
45. Id. at 2795. Taken in combination, these arguments posit the existence of a gap between the jurisdiction of Common Articles 2 and 3. The Court's holding in Hamdan forecloses the possibility of such a gap, however, by construing the jurisdictional element of Common Article 3 broadly so as to apply in all non-Common Article 2 contexts.
46. See id. at 2795-96.
47. See id. at 2796 & n.63.
48. See id. at 2846 (Thomas, J., dissenting). Interestingly, Justice Ali to joined other aspects of the Thomas dissent, but not this one.
49. Id. Presumably Chief Justice Roberts would have joined had he not recused himself in light of his participation in the opinion below.
50. Id. (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)).
51. Hamdan, 126 S. Ct. at 2846. One might argue that the majority's approach could be explained by assuming that the majority had reached the unspoken conclusion that the language of Common Article 3 was not ambiguous and that it did, in fact, foreclose the President's interpretation, notwidistanding any obligation to defer that might otherwise have arisen. If the majority had taken this view, however, it is difficult to see why it would not have said so expressly.
52. Id.
53. See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2685 (2006) (invoking the deference doctrine to interpret a treaty).
54. Id.
55. See id. In Sanchez-Llamas, the executive branch's preferred interpretation was consistent with the Court's conclusion and contrary to that of the International Court of Justice.
56. See id.
57. See infra Part III.A.1 (discussing methodological context).
58. See infra Part III.A.2 (discussing the transformation of foreign-relations law in the twentieth century).
59. See infra Part III.A.2 (discussing the transformation of foreign-relations law in the twentieth century).
60. For a recent discussion of the unsetded state of treaty-interpretation methodology in U.S. courts, see Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 YALE L.J. 824, 827-28 (2007) (describing the methodology as "undertheorized").
61. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT];
62. id. art. 31(4).
63. Id. art. 31(1).
64. Id. art. 31(2).
65. Id. art. 31(3) (b).
66. The VLCT adds that terms shall be given a "special meaning" if that was the intent of the parties. Id. art. 31(4).
67. Id. art. 32.
68. See, e.g., Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982) ("Our role is limited to giving effect to the intent of the Treaty parties."). For a thorough discussion of the drafting and ratification histories of the VCLT,
69. see Evan Criddle, The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 VA. J. INT'L L. 431, 437-44 (2004).
70. Cf. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 145 (1987) (treating the VCLT framework as customary international law).
71. See United States v. Stuart, 489 U.S. 353, 366 (1989) (referring to "a treaty's ratification history and its subsequent operation" as sources "that often assist us in 'giving effect to the intent of the Treaty parties'" (internal citations omitted)).
72. Id. at 365-66 (emphasis added) (internal citations omitted).
73. See id. Insofar as an executive interpretation occurs or is manifested contemporaneous with the negotiation or ratification processes, its consideration furthers the general goal of ascertaining the intent of the parties (or at least the intent of the United States). But the more interesting question is what to make of interpretations that are articulated post-ratification. Because post-ratification interpretations are not contemporaneous with the negotiating and ratifying processes, there is greater reason to question whether they do in fact reflect the treaty parties' intent.
74. Post-ratification practice arguably is inferior to negotiation and ratification history as evidence of the parties' intent in entering into the treaty, given that the latter are contemporaneous sources. In any event, the VCLT's approach more explicitly concerns mutual post-ratification interpretations. U.S. courts have not always been insistent upon mutuality with respect to evidence derived from post-ratification practice.
75. White, supra note 13, at 3.
76. White's transformation narrative also appears at full length in WHITE, supra note 13. References below are to White's article rather than his book, unless otherwise indicated.
77. For a brief but consistent restatement of this perspective, see 12 WILLIAM M. WIECEK, THE BIRTH OF THE MODERN CONSTITUTION: THE UNITED STATES SUPREME COURT, 1941-53, THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES 368 (2006).
78. White, supra note 13.
79. Id. at 77-146.
80. Id. at 8.
81. Id.
82. Id. at 9.
83. See White, supra note 13, at 8-9.
84. See id, at 11-20.
85. See id. at 18-20.
86. See id.
87. See id. at 28 (discussing, inter alia, Fong Yue Ting v. United States, 149 U.S. 698 (1893);
88. Chae Chan Ping v. United States, 130 U.S. 581 (1889)).
89. See White, supra note 13, at 29-30 & n.91.
90. Id. at 32.
91. Id. at 53.
92. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 333 (1936).
93. WHITE, supra note 13, at 61. This book contains much of the content of White's 1999 article, elaborating on the transformation theme with respect to foreign-relations law in its initial chapters.
94. For a comparable discussion of the continuing impact of geopolitical context in the Cold War era, see generally Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 CAL. L. REV. 671 (1998).
95. See also Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395, 1408-09 (1999) (explaining the evolution in the 1960s of a trio of foreign-relations-law doctrines at least partially in terms of the prevailing geopolitical climate).
96. White, supra note 13, at 104-11. White was careful to note that "Sutherland's arguments for the proposition that the Executive was the primary repository of foreign relations power were extremely attenuated."
97. Id. at 105.
98. United States v. Belmont, 301 U.S. 324 (1937).
99. Id. at 330-32.
100. White, supra note 13, at 115. The legal literature of this era met these decisions with some skepticism.
101. See id. at 120-22. However, with war underway in Europe and Asia, the decisions also received support on functionalist grounds, with at least one commentator emphasizing what White described as "the innate advantages of flexibility, circumspection, and administrative efficiency that were associated with executive decisionmaking in foreign affairs."
102. Id. at 123 (citing Harry W. Jones, The President, Congress, and Foreign Relations, 29 CAL. L. REV. 565, 567-73 (1941)).
103. United States v. Pink, 315 U.S. 203 (1942).
104. Id. at 222.
105. See White, supra note 13, at 134-45 (discussing, inter alia, Mexico v. Hoffman, 324 U.S. 30 (1945);
106. Exparte Peru, 318 U.S. 578 (1943)).
107. For a small sampling of the extensive literature, see generally THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 83-158 (David G. Adler & Larry N. George eds., 1996);
108. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993);
109. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 3-34 (1990);
110. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 31-62 (2ded. 1996);
111. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION (1990);
112. H. JEFFERSON POWELL, THE PRESIDENT'S AUTHORITY OVER FOREIGN AFFAIRS: AN ESSAY IN CONSTITUTIONAL INTERPRETATION (2002);
113. JOHN YOO, THE POWERS OF WAR AND PEACE (2005);
114. Curtis A. Bradley & Martin Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MIH. L. REV. 545 (2004);
115. Saikrishna Prakash & Michael D. Ramsey, Foreign Affairs and the Jeffersonian Executive: A Defense, 89 MINN. L. REV. 1591 (2005);
116. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001);
117. Michael D. Ramsey, The Myth of Extraconstitutional Foreign Affairs Power, 42 WM. & MARY. L. REV. 379 (2000) (critiquing Curtiss-Wright);
118. LOUIS FISHER, THE LAW LIBRARY OF CONGRESS STUDIES ON PRESIDENTIAL POWER IN FOREIGN RELATIONS (2006), available at http://www.fas.org/sgp/eprint/fisher.pdf.
119. Subsequent geopolitical developments-particularly the Vietnam War-produced a degree of backlash against executive discretion in foreign affairs in the 1970s, as seen in the enactment of the War Powers Resolution. See, e.g., ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 278-330 (1973) (discussing the rise of executive discretion in foreign affairs and the impact of Vietnam). One might have expected the events of September 11 to swing the pendulum quite far in the direction of executive discretion, but more recent developments, especially the ongoing problems associated with the war in Iraq, quite possibly will have the opposite effect. Whether decisions such as Hamdan reflect judicial skepticism about the desirability of executive discretion in foreign affairs in light of such events is not easily known.
120. According to a survey conducted by Professor Sloss, the Supreme Court rejected the executive branch's preferred interpretation on fourteen out of nineteen occasions during the period between 1789 and 1838. See Sloss, supra note 5. Sloss included in his set all published Supreme Court opinions during this period in which (1) the U.S. was a party, (2) a party relied on a treaty to support a claim or defense, and (3) the Court reached the merits of that claim or defense.
121. See id. at 498-99.
122. In re Ross, 140 U.S. 453 (1891). There is an earlier federal case - Castro v. de Uriarte, 16 F. 93 (S.D.N.Y. 1883) - in which a federal judge discusses the weight to give an executive treaty interpretation. Castro, 16 F. at 95-99. The opinion in Castro concerned a false-imprisonment and malicious-prosecution suit against the consul-general of Spain, apparently occasioned by an unsuccessful attempt to obtain the plaintiffs extradition.
123. Id. at 94. The case considered whether an extradition treaty between the United States and Spain required certain procedures to be followed; as to that issue, the Secretary of State, in post-ratification diplomatic correspondence with the Spanish minister, had adopted the view that the procedures in question were not required.
124. Id. at 98. Citing this fact, the court observed (without citation) that [w]hile the construction which may be placed by the executive department upon laws or treaties is not necessarily binding upon the judiciary, yet where its construction is not repugnant either to their letter or obvious intent, and, as in this case, is sustained by such manifest considerations of convenience and expediency, it should be adopted without hesitation.
125. Id. Castro thus appears to have rested on a moderate version of the separation-of-powers account, comparable to that advocated by Mr. Criddle in Part IV.A.3, infra.
126. Cf. HENKIN, supra note 83, at 482 n.118 (citing a much earlier case - Foster v. Neibon, 27 U.S. (2 Pet.) 253 (1829) - as an early indication of a binding deference doctrine. Foster, however, dealt with an interpretation by the political departments acting together (as expressed in legislation) rather than the executive alone).
127. Foster, 27 U.S. at 303.
128. Ross, 140 U.S. at 457-58.
129. Id. at 467.
130. Id. at 468.
131. See id. at 467-68.
132. Charlton v. Kelly, 229 U.S. 447 (1913).
133. Id. at 465.
134. Id. at 468.
135. Id.
136. Sullivan v. Kidd, 254 U.S. 433 (1920).
137. Id. at 435-36.
138. Id. at 438-39.
139. Id. at 440-42.
140. Id. at 442 (citing Charlton v. Kelly, 229 U.S. 447, 468 (1913);
141. Castro v. De Uriarte, 16 F. 92, 98 (S.D.N.Y. 1883)).
142. In re Ross, 140 U.S. 453 (1891).
143. Nielsen v.Johnson, 279 U.S. 47 (1929).
144. Id. at 49-50.
145. Id. at 50-51.104.
146. Id. at 52
147. (citing Ross, 140 U.S. at 467).
148. Justice Stone also cited to three other decisions: Terrace v. Thompson, 263 U.S. 197 (1923),
149. United States v. Texas, 162 U.S. 1 (1896),
150. and Kinkead v. United States, 150 U.S. 486 (1893). But of these, only one had a bearing of any kind on the executive-interpretation issue. In Texas, Justice Harlan had relied in part on evidence of the course of actual conduct of both the U.S. and Texas governments during the second half of the nineteenth century in determining the proper construction of a treaty between the United States and Spain with respect to certain boundary issues.
151. See Texas, 162 U.S. at 38-41 (describing official acts by both governments in interpretation of the treaty).
152. Nieben, 279 U.S. at 97. The bulk of the analysis consisted of a review of the diplomatic correspondence between American and Danish officials in the course of negotiating the treaty.
153. See id. at 52-56.
154. This may explain why the Court periodically will rely on the course of actual practice under a treaty as an aid to interpretation without giving any indication that the practice is a form of deference to executive interpretations. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 260 (1984) (holding that the "conduct of the contracting parties in implementing [the Warsaw Convention] in the first 50 years of its operation cannot be ignored");
155. Pearcy v. Stranahan, 205 U.S. 257, 272 (1907) (construing a 1898 peace treaty between the United States and Spain not to pass sovereignty over Cuba or the Isle of Pines to the United States, based in part on consistent U.S. practice).
156. Factor v. Laubenheimer, 290 U.S. 276 (1933).
157. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
158. United States v. Belmont, 301 U.S. 324 (1937).
159. Factor, 290 U.S. at 286.
160. Id. at 293-301.
161. Id. at 295. It appears that here, as in Kidd, the Supreme Court had actually ordered reargument of the case with specific direction to review the State Department's records for evidence of the government's post-ratification construction.
162. See id. at 295 & n.5.
163. Perkins v. Elg, 307 U.S. 325 (1939).
164. See id. at 327.
165. See id. at 328.
166. See id. at 336-37.
167. See id. at 337-42.
168. See Perkins, 307 U.S. at 337-42.
169. Kolovrat v. Oregon, 366 U.S. 187 (1961).
170. Id. at 194.
171. See id. at 194-95.
172. Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (1982).
173. See id. at 177-78.
174. See id. at 182-83.
175. See United States v. Stuart, 489 U.S. 353, 371-72 (1989) (Scalia, J., concurring).
176. Sumitomo, 457 U.S. at 184-85 (internal citation omitted).
177. See id. at 184 n.10 (citing Letter from James R. Atwood, Deputy Legal Adviser, U.S. Dep't of State, to Lutz Alexander Prager, Assistant Gen. Counsel, EEOC (Sept. 11, 1979)).
178. See id. (citing Letter from Lee R. Marks, Deputy Legal Advisor, U.S. Dep't of State, to Abner W. Sibal, Gen. Counsel, EEOC (Oct. 17, 1978)). It is unclear whether the reversal of the State Department's position was made with the Sumitomo litigation in mind. Whether it would have mattered even if that were so is an open question. One factor that ought to be relevant in that scenario (where the executive's position is changed with an eye toward litigation) is whether the executive asserts the new position solely in the context of the litigation (for example, in the form of an assertion contained in an amicus brief) or also does so externally (for example, borrowing from Sumitomo, through a letter from the State Department to another government agency setting forth the new position). In both instances, the executive presumably would be able to reverse course again, if desired, after the litigation. But the costs of doing so presumably would be relatively higher in the latter than in the former case, which suggests that courts should be more skeptical of new interpretations that appear solely in the briefs. Such an approach would be consistent with an analogy to the administrative-law context, where statutory interpretations adopted by the executive for litigation purposes do not receive Chevron deference if "wholly unsupported by regulations, rulings, or administrative practice."
179. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).
180. Cf. CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW: CASES AND MATERIALS 105 (2003) (raising this issue);
181. id. at 97-102 (reprinting United States v. Lombera-Camorlinga, 206 F.Sd 882, 891 (9th Cir. 2000) (accepting the State Department's construction of the Vienna Convention on Consular Rights ("VCCR") ) ) (noting that the dissenters in Lombera-Camorlinga questioned the wisdom of relying on an executive treaty interpretation developed for litigation purposes).
182. Sumitomo, 457 U.S. at 185 n.10.
183. Id. Chief Justice Burger also went on to observe that the government of Japan had endorsed the new State Department position and stated that in such circumstances the courts "must, absent extraordinarily strong contrary evidence, defer to that interpretation."
184. Id. at 185.
185. Compare United States v. Stuart, 489 U.S. 353, 366-70 (1989) (finding the text to be clear but expressly defending the practice of also considering the drafting history and, to a lesser extent, post-ratification practice and understandings),
186. with id. at 371-72 (Scalia, J., concurring) (decrying this approach on the ground that extrinsic sources cannot trump unambiguous text).
187. See id. at 369 (majority opinion) (implying consistency from the IRS).
188. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 135 (1989) (holding that KAL could claim the benefit of damage caps contained in the Warsaw Convention despite the failure to provide notice of said limit in the form of language appearing in ten-point type or larger on passenger tickets).
189. See id. at 123.
190. See id. at 133-35. The KAL decision is included in the set, but it is not discussed in the recitation of the Supreme Court's deference precedent in the preceding section because the deference issue appears only in a concurring opinion by Justice Brennan (with reference to the Sumitomo standard).
191. See id. at 151 n.15.
192. In 1986, the Court did cite Sumitomo for the proposition that the executive's past practice under a U.S.-Panama treaty with respect to a tax matter is entitled to "great weight." O'Connor v. United States, 479 U.S. 27, 32-33 (1986). O'Connor arguably is best seen as an example of the use of post-ratification practice as evidence of the treaty parties' intent, as opposed to an example of pure deference.
193. El Al Israel Airlines, Ltd., v. Tseng, 525 U.S. 155 (1999) (considering the views of the executive concerning interpretation of the Warsaw Convention, as expressed in an amicus brief).
194. But see Goldsmith, supra note 75, at 1424-25 (describing post-1991 developments in several foreign-relations-law doctrines that tend to restrain the potential for judicial interference in foreign affairs).
195. ElAl Israel Airlines, 525 U.S. at 168.
196. Cf. BRADLEY & GOLDSMITH, supra note 128, at 103 (questioning whether Ginsburg's "respect" formulation entails a meaningful difference in the degree of deference).
197. Justice Ginsburg arguably sought to accomplish something comparable in United States v. Virginia, a 1996 gender-discrimination case involving the Virginia Military Institute. See United States v. Virginia, 518 U.S. 515, 515 (1996). There, Justice Ginsburg described the analytical framework for equal-protection arguments involving gender discrimination in a manner that may have indicated a more robust level of review than that normally associated with "intermediate scrutiny," but she did not expressly call for heightened review.
198. See, e.g., id. at 532-33.
199. See, e.g., Hamdan v. Rumsfeld, 415 F.Sd 33, 37-38 (D.C Cir. 2005) (asserting a binding deference obligation);
200. United States v. Lindh, 212 F. Supp. 2d 541, 554-57 (E.D. Va. 2002) (assertingjudicial independence, but also describing the deference obligation in strong terms).
201. See supra note 12 and accompanying text.
202. See Flaherty, supra note 17.
203. See Bederman, supra note 7.
204. See also David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. COLO. L. REV. 1439, 1440-41 (1999) (critiquing the deference afforded to the executive branch with respect to treaty interpretation).
205. Bederman, supra note 7, at 1016.
206. Id. at 1015-16.
207. See id. at 1016.
208. Id. For a similar perspective, see Martin A. Rogoff, Interpretation of International Agreements by Domestic Courts and the Politics of International Treaty Relations: Reflections on Some Recent Decisions of the United States Supreme Court, 11 AM. U.J. INT'L L. & POL. 559, 583 (1996) (arguing that "the Court shows such great deference to executive interpretation of both statute and treaty, that effective judicial review is all but illusory").
209. See Bederman, supra note 7, at 975 n.108 (listing ten decisions from the Rehnquist era);
210. id. at 1015 n.422 (listing seven Warren Court decisions and six Burger Court cases).
211. Id. at 1015-16 n.422 (reaching this conclusion as to five out of seven Warren Court cases, five of six Burger Court cases, and nine out of ten Rehnquist Court cases).
212. Id.
213. See Flaherty, supra note 17.
214. Id.
215. All of the information reported in this Part derives from the master table set forth in the Appendix to this Article, infra Part VI. In reviewing that table, the reader may notice that the set includes a few instances of opinions from both a lower court and a reviewing court in the same case. I elected to include all such opinions in the set, rather than just that of the reviewing court, on the theory that the goal of the survey is to capture a sense of how judges have been applying the deference doctrine in practice, not to determine the ultimate outcome in these lawsuits. The next desirable step in the data-collection process is to expand the inquiry beyond cases that expressly invoke the deference doctrine to those in which the deference rule goes unmentioned but where there nonetheless is reason to believe that the court was aware of, or presented with, the executive branch's preferred interpretation. Professor Bederman's study, much to its credit, took that broader approach. Once one expands beyond the relatively limited universe of Supreme Court opinions, however, the task of identifying cases that fall into this broader category becomes considerably more difficult.
216. The reversed decisions are: Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1350, 1353 (2d Cir. 1992);
217. United States v. Verdugo-Urquidez, 939 F.2d 1341, 1344 (9th Cir. 1991);
218. Tachiona v. Mugabe, 186 F. Supp. 2d 383, 387 (S.D.N.Y. 2002);
219. and McNamara v. Korean Air Lines, No. 825085, 1987 WL 19606, at *6 (E.D. Pa. Nov. 9, 1987).
220. Tachiona v. Mugabe, 186 F. Supp. 2d 383.
221. Id., rev'd sub nom., Tachiona v. United States, 386 F.3d 205, 210-24 (2d Cir. 2004),
222. cert. denied, 74 U.S.L.W. 3640 (U.S. May 15, 2006).
223. See Tachiona, 186 F. Supp. 2d at 384-85.
224. Id. at 384.
225. See id. at 385-86.
226. Id. at 390.
227. Id. at 393.
228. This may suggest that treaty-interpretation cases in general have become more common in recent years, that litigants and judges have become more familiar with the existence of the deference rule, or perhaps both. It may also be a function of the rather large number of cases that have arisen in the past five years in connection widi the consular notification provision of the VCCR, an issue that has had a very high profile and that is currently pending before the Supreme Court. See Appendix, infra Part VI (listing cases involving VCCR).
229. See, e.g., Bederman, supra note 7, at 960-63 (discussing the history of and competing arguments about judicial deference to executive interpretation). For discussions in the politicalscience literature on the general topic of judicial deference to the executive branch during wartime or in cases involving foreign policy or military concerns,
230. see generally Craig R. Ducat & Robert L. Dudley, Federal District Judges and Presidential Power During the Postwar Era, 51 J. POL. 98 (1989) (examining district-court rulings in "presidential power" cases and concluding that presidents fare better in foreign- and military-policy cases than they do in other contexts);
231. Jeff Yates & Andrew Whitford, Presidential Power and the United States Supreme Court, 51 POL. RES. Q. 539 (1998) (same, with respect to Supreme Court voting patterns).
232. See also Tom S. Clark, Judicial Decision Making During Wartime, 3 J. EMP. LEG. STUDIES 397, 401-02, 414 (2006) (examining court-of-appeals voting patterns in wartime and finding no evidence of increased deference).
233. For a sampling of this debate, see generally Joseph R. Biden, Jr. & John B. Ritch III, The Treaty Power: A Constitutional Partnership, 137 U. PA. L. REV. 1529 (1989);
234. Lawrence J. Block et al., The Senate's Pie-in-the-Sky Treaty Interpretation: Power and the Quest for Legislative Supremacy, 137 U. PA. L. REV. 1481 (1989);
235. Abram Chayes & Antonia H. Chayes, Testing and Development of "Exotic" Systems Under the ABM Treaty: The Great Reinterpretation Caper, 99 HARV. L. REV. 1956 (1986);
236. Harold Hongju Koh, The President Versus the Senate in Treaty Interpretation: What's AU the Fuss About!, 15 YALE J. INT'L L. 331 (1990);
237. David A. Koplow, Constitutional Bait and Switch: Executive Reinterpretation of Arms Control Treaties, 137 U. PA. L. REV. 1353 (1989);
238. Abraham D. Sofaer, The ABM Treaty and the Strategic Defense Initiative, 99 HARV. L. REV. 1972 (1986) ;
239. Phillip R. Trimble, The Constitutional Common Law of Treaty Interpretation: A Reply to the Formalists, 137 U. PA. L. REV. 1461 (1989).
240. Must only one of these models prevail as the preferred normative account? Notably, Professor Roger Alford has identified a comparable array of deference models in connection with a similar issue: When and to what extent should judges defer to the decision of international tribunals? See generally Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 VA. J. INT'L L. 675 (2003).
241. See also Roger P. Alford, Federal Courts, International Tribunab, and the Continuum of Deference: A Postscript on Lawrence v. Texas, 44 VA. J. INT'L L. 913 (2004). Because international tribunals vary widely with respect to the considerations that cut for or against affording their decisions deference in domestic courts, Professor Alford was able to disaggregate the normative inquiry and endorse application of particular levels of deference to particular types of tribunal. In contrast, the sources of executive treaty interpretations are not nearly as diverse. This relative uniformity makes it more difficult to adopt an approach that calls for the degree of deference to vary by context, though not impossible, as I argue below.
242. See infra Part IV.B.
243. See YOO, supra note 83, at 190-214;
244. John Yoo, Politics as Law? The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV. 851, 864-82 (2001) (arguing for deference to presidential interpretation).
245. Yoo, supra note 168, at 914.
246. Id. at 869-70.
247. See id. at 870-77.
248. See id. at 874-76.
249. See id. at 882-901 (discussing conceptions of executive power with respect to foreign relations in the writings of Locke, Montesquiue, and Blackstone; the evolution of executivepower ideas relating to treaty authority during the constitutional drafting and ratification debates; and debates and actions undertaken during the early Republic widi respect to treaty disputes).
250. Yoo, supra note 168, at 883.
251. It is not that Congress is powerless to respond to the President's interpretative move, in Yoo's view, but that it cannot do so on the same terms. Its recourse instead is to invoke its own powers - particularly the spending power - to check the President. See id. at 914. In this respect, Yoo's review essay is consistent with his other work relating to separation-of-powers issues in the context of foreign affairs, a major theme of which is that the Framers intended for interbranch disputes to be worked out by the elected branches in the political sphere rather dian by the judiciary operating as umpire between them in the legal sphere.
252. SeeYOO, supra note 83, at 190-204;
253. see also Trimble, supra note 166, at 1461-63 (presenting a similar separation-of-powers account in the midst of the controversies between the executive and the Senate regarding the Reagan Administration's ABM Treaty reinterpretation).
254. John C. Yoo, Treaty Interpretation and the False Sirens of Delegation, 90 CAL. L. REV. 1305, 1305 (2002)
255. (a rejoinder to Michael P. Van Alstine, The Judicial Power and Treaty Delegation, 90 CAL. L. REV. 1263, 1266 (2002) (criticizing Yoo, supra note 168)).
256. Yoo, supra note 176, at 1308. At least some of the disagreement between Professors Yoo and Van Alstine concerns the controversy over non-self-execution.
257. See, e.g., id. at 1312-14. This is an important topic to be sure, but it is one that is conceptually distinct in many respects from the issue of judicial deference.
258. Id. at 1333. It should be noted that Treaty Interpretation is no ordinary product of the ivory tower. On the contrary, Yoo appears to have written it in the spring of 2002, while on leave from Boalt Hall to serve as Deputy Assistant Attorney General in the Office of Legal Counsel.
259. See id. at 1305 (author's footnote). Lest there be any uncertainty about die implications of his theory for treaty issues arising out of the war on terrorism, Yoo concludes his essay with a brief discussion of how his views would apply in the context of a judicial challenge to the President's determination in 2002 that members of al Qaeda or the Taliban could not assert status as prisoners-of-war under the GPW.
260. See id. at 1341-42. After reciting the particulars of the President's interpretation, Yoo describes the President's interpretive power as "unilateral," a matter that "should rest solely in [his] discretion."
261. Id. at 1342.
262. Julian Ku & John Yoo, Hamdan v. Rumsfeld, The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 CONST. COMMENT. 179, 199 (2006) [hereinafter Ku & Yoo, The Case for Deference]. Ku and Yoo also acknowledge a "formal basis" for deference rooted in what they describe as "the President's unique constitutional power as the maker of treaties under Article II."
263. Id. at 196-97. But in its prioritization of functional arguments, this article echoes Ku and Yoo's prior work directed at the controversy surrounding the Alien Tort Statute.
264. See generally Julian Ku & John Yoo, Beyond Formalm in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 SUP. CT. REV. 153 (2004) (contending that competing formalist arguments relating to the text, statutory purpose, and history of the statute had resulted in a stalemate, and endorsing functionalism as a preferred approach, at least in that context).
265. Ku &Yoo, The Case for Deference, supranote 179, at 199.
266. Id. at 202.
267. Alex Glashausser, Difference and Deference in Treaty Interpretation, 50 VILL. L. REV. 25, 27 (2005) [hereinafter Glashausser, Difference and Deference]. This article, which focuses on the merits of deference to the executive as a mode of treaty interpretation, is a companion to a larger piece dealing with interpretive methodologies more generally.
268. See generally Alex Glashausser, What We Must Never Forget When It Is a Treaty We Are Expounding, 73 U, CIN. L. REV. 1243 (2005).
269. Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 650 (2000).
270. See Glashausser, Difference and Deference, supra note 182, at 38.
271. Id. at 42.
272. Id. at 43-44.
273. Cf. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power (Univ. of Chicago Law Sch. Pub. Law and Legal Theory Working Paper Series, Paper No. 133, 2006), available at http://www.law.uchicago.academics/publiclaw (discussing the President's power to decline to execute unconstitutional legislation).
274. See Glashausser, Difference and Deference, supra note 182, at 45-46.
275. See id.
276. Sloss, supra note 5.
277. Id. at 522.
278. See Flaherty, supra note 17. Flaherty argues that the phenomenon of globalization has proved particularly beneficial to executive-branch actors, suggesting an enhanced need for the judiciary to assert its capacity to check executive discretion.
279. Id.
280. See id.
281. Id.
282. See Bradley, supra note 183.
283. Chevron U.SA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
284. See Bradley, supra note 183, at 663. Bradley's article distinguishes judicial deference to die executive in this context from several related dynamics, such as "deference" in the form of application of the political-question doctrine or "deference" to an executive determination that a factual predicate to a treaty-interpretation issue does or does not exist.
285. See id. at 660-62.
286. See Chevron, 467 U.S. at 842-43 ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as die agency, must give effect to the unambiguously expressed intent of Congress.").
287. Id. at 843-45.
288. For an overview of the significance of Chevron deference in the context of the September 18, 2001, Congressional Authorization for Use of Military Force, see generally Cass R. Sunstein, Administrative Law Goes to War, 118 HARV. L. REV. 2663 (2005). Sunstein observes diat countercanons of construction-such as the rule against construing an ambiguous statute so as to raise serious constitutional concerns-nonetheless may trump an agency interpretation that otherwise qualifies for Chevron deference; although it might be better to conceptualize that scenario as precluding the conclusion that the agency's interpretation was reasonable in the first place.
289. See id. at 2668.
290. But see Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 ADMIN. L. REV. 429, 431 (2006) (commenting on the use of Chevron to trump stare decisis).
291. Bradley, supra note 183, at 703;
292. Jinks & Sloss, supra note 2, at 196 n.523 (observing that Bradley's model "does a reasonably good job of describing the courts' approach to treaty interpretation"), It may be more accurate to say that the model fits well as a description of how courts describe themselves as making use of such interpretations, which might turn out to be distinct from what they actually are doing in some instances,
293. See Bradley, supra note 183, at 703 (citing Perkins v. Elg, 307 U.S. 325, 335-42, 344-49 (1939)).
294. But cf. United States v. Stuart, 489 U.S. 353, 366-69 (1989) (consulting extrinsic sources - including a reference to agency interpretations of die relevant treaty-to reinforce the majority's treaty interpretation, despite the conclusion that the plain language compels the conclusion);
295. see also id. at 371, 371-73 (Scalia, J., concurring) (criticizing the majority for going beyond unambiguous text). Stuart illustrates the connection between a court's understanding of the deference issue and its larger views concerning the hierarchy of methods used for construing a treaty.
296. Bradley, supra note 183, at 703 (citing generally El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999)).
297. See id. (citing Sumitomo Shoji Am. v. Avagliano, 457 U.S. 176, 184-85 (1982)).
298. See id. (citing Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 68-69 (1993)).
299. See id. at 703-04 & n.236.
300. Insofar as the law of executive treaty interpretations is linked to analogous administrative-law concepts, shifts in the terrain of the latter may impact the former. In that light, it is worth noting the account of Chevron recendy articulated by Justice Stephen Breyer. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION 103-08 (2005). Breyer asserts that it remains unclear whether Chevron deference must always be applied when a responsible agency interprets an ambiguous statute or, if instead, Chevron deference is merely a rule of thumb-a presumption, perhaps.
301. See id. at 103-04. Reasoning that some ambiguities are of sufficient import that a reasonable legislator would not have intended to delegate their resolution to the executive, Breyer ultimately concludes that such circumstances justify a court in declining to apply the Chevron framework and thus permitting rejection of die agency's interpretation.
302. See id. at 106-08,
303. Cf. Christensen v. Harris County, 529 U.S. 576, 596-97 (2000) (Breyer, J., dissenting) (arguing for denial of Chevron deference in connection with relatively informal administrative expressions at least "where one has doubt that Congress intended to delegate interpretive authority to the agency").
304. See, e.g., Jinks & Sloss, supra note 2, at 194-200 (distinguishing Bradley's Chevron approach from Yoo's model of total deference and contending that the President's construction of the certain Geneva Convention provisions is unreasonable and, thus, undeserving of deference even under Chevron-style analysis).
305. Eric A. Posner & Cass R. Sunstein, ChevronizingForeign Relations Law, 116 YALE LJ. 1170 (2007).
306. Id. at 1201-02.
307. Id. 1176.
308. Id. at 1204-07 (listing institutional advantages over the judiciary, including, in particular, the executive branch's superior ability to assess the likely repercussions of various litigation outcomes).
309. Jinks & Katyal, supra note 1, at 1233.
310. Id. at 1232.
311. Id. at 1243 (arguing that the actual practice of courts with respect to deference to executive treaty interpretations is "decidedly more modest than Chevron deference").
312. See id. at 1245.
313. Id. at 1246.
314. See Jinks & Katyal, supranote 1, at 1246-47.
315. See id.;
316. see also id. at 1279 (arguing diat "a precondition for deference should be die use of internal executive processes that permit balanced decision-making"). In this respect, the Jinks-Katyal position builds on Katyal's work with respect to intrabranch separation of powers.
317. See Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE LJ. 2314, 2319 (2006).
318. Jinks & Katyal, supra note 1, at 1262-63.
319. Id. at 1263.
320. Evan Criddle, Comment, Chevron Deference and Treaty Interpretation, 112 YALE LJ. 1927, 1928-34 (2003).
321. For more on die Chevron-versus-Skidmore distinction, see generally Sunstein, supra note 199, at 2665
322. (citing Thomas W. Merrill & Kristin E. Hickman, Chevron 'i Domain, 89 GEO. L.J. 833, 836 (2001);
323. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006)) (describing the threshold inquiry as "Chevron Step Zero").
324. United States v. Mead Corp., 533 U.S. 218, 221 (2001).
325. Id. at 229.
326. See Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944).
327. Mead, 533 U.S. at 234.
328. Bradley, supra note 183, at 662.
329. See Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 GEO. L.J. 1885, 1942-43 (2005);
330. see also Van Alstine, supra note 176.
331. Van Alstine, supra note 227, at 1943-44 (citing El Al Israel Airlines v. Tseng, 525 U.S. 155, 168 (1999)).
332. See id.
333. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).
334. Id. at 428.
335. Van Alstine, supra note 227, at 1944 (internal citations omitted).
336. See Van Alstine, supra note 176, at 1294-95, 1297-98.
337. See id. at 1298, 1300 (accepting that "[f]or diplomatic and national defense treaties, the deference due executive agencies properly may be substantial," but cautioning that "as the degree to which a treaty implicates foreign affairs concerns decreases, so too should the degree of deference to executive views about the meaning of its provisions").
338. Id. at 1298.
339. See id. (describing the appropriate approach as one of valid deference).
340. This is not surprising given the lack of consensus characterizing the larger debate regarding the general nature and scope of executive authority in die realm of foreign affairs. The literature on this topic is vast. See supra note 83 (addressing the debate surrounding unilateral executive discretion).
341. Note that in most, if not all, deference models, courts remain capable of asserting their independence and performing their checking function where the executive interpretation in issue runs contrary to the plain meaning of treaty text. This is true even if, as described in supra Part III.A. 1, the prevailing methodology does not foreclose a court from resorting to odier sources, even where that court has found diat the text is not ambiguous. That a court may resort to extrinsic sources in such a context does not mean that die court should reject the plain meaning of the text as a result.
342. It may also have the virtue of increasing the incentive to resort to treatymaking rather than the executive-agreement model, all other considerations being equal. A relatively robust deference doctrine applicable to treaty interpretation presumably makes treaties more palatable than would otherwise be the case.