Rethinking treaty interpretation

Texas Law Review

Volumn 86, Issue 4, 2008, Pages 777-817

  Sullivan, Scott M ^a,b  

^a Department of Law ^*

^b UNIVERSITY OF TEXAS   (United States)

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EID: 42949138258     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (241)

1. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
2. See Skidmore v. Swift & Co., 323 U.S. 134 (1944).
3. See generally LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 132 (2d ed. 1996) (highlighting the deference courts give to the statutory interpretations of the political branches of government when evaluating matters of foreign affairs);
4. Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 650 (2000) (noting that courts have generally employed varying degrees of deference to the Executive Branch regarding foreign-affairs matters in order to avoid the uncomfortable choice of either applying the law to limit the international power of the Executive Branch or abdicating their judicial function);
5. Jonathan I. Charney, Judicial Deference in Foreign Relations, 83 AM. J. INT'L L. 805, 805 (1989) (outlining the spectrum of judicial prerogatives when deciding matters regarding foreign affairs, from deferring completely to the Executive Branch's position to disregarding the position of the Executive entirely).
6. See, e.g., David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. COLO. L. REV. 1439, 1442-45 (1999) (discussing the increase injudicial deference during the twentieth century);
7. Robert M. Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 IOWA L. REV. 1723, 1741-52 (2007) (outlining the development of the U.S. Supreme Court's deference doctrine);
8. G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1, 3 (1999) (documenting the "triumph of 'executive discretion' in the constitutional regime of foreign relations").
9. See Chesney, supra note 4, at 1733 ("There is no question that a deference doctrine of some kind currently exists with respect to executive-branch treaty interpretations. But the precise nature of that doctrine, its triggering conditions, and the obligations it imposes on judges are far from clear.").
10. SEE U.S. DEP'T OF STATE, TREATIES IN FORCE: A LIST OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES IN FORCE ON NOVEMBER 1, 2007 (2007), available at http://www.state.gov/documents/treaties/83046.pdf (listing over 10,000 treaties and executive agreements as "in force" within U.S. law).
11. See generally, e.g., United Nations Convention Against Corruption, G.A. Res. 58/4, U.N. GAOR, 58th Sess., U.N. Doc. A/RES/58/4 (Oct. 31, 2003);
12. International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368.
13. See generally ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY, at xv, xv-xvii, 420-21 (First Mariner Books ed. 2004) (observing a long-term trend toward greater executive control over "the war-making power, the power of the purse, and the power of oversight and investigation").
14. 252 U.S. 416 (1920).
15. Id. at 435.
16. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287;
17. Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
18. See John Yoo, Politics as Law?; The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV. 851, 862 (2001) (book review) (explaining that treaties have reciprocal international and legal obligations).
19. 126 S. Ct. 2749 (2006).
20. Id. at 2761.
21. Id. at 2759.
22. Military Order of November 13, 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).
23. Hamdan, 126 S. Ct. at 2759.
24. Id. at 2762.
25. Geneva Convention Relative to the Treatment of Prisoners of War, supra note 11, art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135.
26. The Article is a "common" article as it is present in all four of the Geneva Conventions. See id.;
27. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, supra note 11, art. 3, 6 U.S.T. 3516, 75 U.N.T.S. 287;
28. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85;
29. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces and in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31.
30. Memorandum from President George W. Bush to the Vice President et al. (Feb. 7, 2002), in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 134-35 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter THE TORTURE PAPERS].
31. See Susan L. Turley, Note, Keeping the Peace: Do the Laws of War Apply?, 73 TEXAS L. REV. 139, 141 (1994) ("[T]he 1949 Geneva Conventions are the most well known and oft-quoted of the laws of war....").
32. Memorandum from President George W. Bush to the Vice President et al., supra note 20, at 134-35.
33. Id. at 135, 134-35 (quoting Common Article 3);
34. see sources cited supra note 19.
35. See Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, Gen. Counsel of the Dep't of Def. (Jan. 22, 2002), in THE TORTURE PAPERS, supra note 20, at 81, 90 (explaining that the conflict with al Qaeda is of "an international character" because "Al Qaeda operates in many countries and carried out a massive international attack on the United States on September 11, 2001").
36. Id. at 86.
37. Id.
38. See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 160-62 (D.D.C. 2004),
39. rev'd, 415 F.3d 33 (D.C. Cir. 2005),
40. rev'd, 126 S. Ct. 2749 (2006).
41. Hamdan v. Rumsfeld, 415 F.3d 33, 40 (D.C. Cir. 2005),
42. rev'd, 126 S. Ct. 2749.
43. Id. at 41 (quoting United States v. Stuart, 489 U.S. 353, 369 (1989)).
44. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2763 (2006).
45. See id. at 2796 ("Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." (internal quotation marks omitted)).
46. Id. at 2795.
47. See id. at 2796 ("Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory 'Power' who are involved in a conflict 'in the territory of a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not).").
48. Id. at 2846 (Thomas, J., dissenting)
49. (quoting Stuart, 489 U.S. at 369 and Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)).
50. Id. The dissent then concluded that, even if applicable, Common Article 3 is already satisfied under the President's military order and accompanying regulations.
51. See id. at 2847 ("In any event, Hamdan's military commission complies with the requirements of Common Article 3. It is plainly 'regularly constituted' because such commissions have been employed throughout our history to try unlawful combatants for crimes against the law of war.").
52. Id.
53. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered sections of 10, 18, 28, and 42 U.S.C).
54. Hamdan, 126 S. Ct. at 2799 (Breyer, J., concurring).
55. See Military Commissions Act § 3(a)(1) (establishing procedures governing the use of military commissions to try alien unlawful enemy combatants violating the law of war and engaging in hostilities against the United States).
56. Id. § 6(a)(3)(A).
57. But see 152 CONG. REC. S10,399 (daily ed. Sept. 28, 2006) (statement of Sen. McCain, with which Sen. Warner concurred) (arguing that with reference to the President's authority to engage in grave breaches of the Geneva Conventions, "Nothing in this bill gives the President the authority to modify the conventions or our obligations under those treaties").
58. See Exec. Order No. 13,440, 72 Fed. Reg. 40,707 (July 20, 2007).
59. 366 U.S. 187 (1961).
60. Id. at 194.
61. United States v. Stuart, 489 U.S. 353, 369 (1989) (quoting Sumitomo Shoji Am., Inc., v. Avagliano, 457 U.S. 176, 184-85 (1982)).
62. Bederman, supra note 4, at 1465 (emphasis omitted).
63. Tim Wu, Treaties ' Domains, 93 VA. L. REV. 571, 573 (2007).
64. Professors Sloss and Yoo offer conflicting views of the originalist view of treaty-interpretation deference. Compare David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497, 506-07 (2007) (surveying judicial decisions of treaty construction in the first fifty years of the Supreme Court and concluding that the Court at this time period utilized a no-deference standard toward executive interpretations of treaties),
65. with John C. Yoo, Rejoinder: Treaty Interpretation and the False Sirens of Delegation, 90 CAL. L. REV. 1305 (2002) (using, inter alia, a textual and structural analysis of the Vesting Clause to support the proposition that an originalist understanding of the Foreign Affairs power would place the task of treaty interpretation within the Executive Branch rather than the Judiciary).
66. See U.S. CONST, art. II, § 2, cl. 2 ("He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .").
67. See id. art. VI ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .").
68. See id. art. III, § 2, cl. 1 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ....").
69. THE FEDERALIST NO. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
70. THE FEDERALIST NO. 75 (Alexander Hamilton), supra note 51, at 451.
71. Id. at 450-51.
72. 5 U.S. (1Cranch) 137 (1803).
73. Id. at 165-66.
74. See Sloss, supra note 47, at 506-08, 506 & n.59 (listing and discussing early cases decided by the Supreme Court).
75. Id.
76. 19 U.S. (6 Wheat.) 1 (1821).
77. Id. at 6.
78. Id. at 14.
79. Id. at 68.
80. Id. at 92 (Johnson, J., dissenting).
81. 26 F. Cas. 875 (D. La. 1812) (No. 15569A).
82. Id. at 875.
83. Id. at 876.
84. See id. (discussing the Treaty for the Cession of Louisiana, U.S.-Fr., Apr. 30, 1803, 8 Stat. 200).
85. Id. at 876-77.
86. Id. at 876, 876-77.
87. Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1202 (2007); .
88. see id. (reviewing courts' reasons for giving deference to the Executive in foreign-relations cases and concluding that "the underlying justifications are often less textual than functional, based on traditional practices and understandings" of institutional competency).
89. Professor Robert Chesney has conducted an extensive study of cases demonstrating the sometimes inconsistent, but often highly deferential, application of great weight deference by the courts. See Chesney, supra note 4, at 1775 (listing cases from 1984 through 2005 in which courts engaged the deference doctrine and indicating a high frequency of cases invoking great weight in which the court adopted the Executive's treaty interpretation). However, the decision of whether or not to invoke the standard itself may be less of an analytic exercise than results justification. Courts facing treaty-interpretation questions that do not invoke the great weight standard are far more likely to interpret a treaty contrary to the Executive's position.
90. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2795-97 (2006) (holding that, contrary to the Executive's assertions, Common Article 3 of the Geneva Conventions applies to an alien captured in connection with the United States' conflict with al Qaeda).
91. Posner & Sunstein, supra note 69, at 1202.
92. John S. Baker, Jr., Competing Paradigms of Constitutional Power in "The War on Terrorism, " 19 NOTRE DAME J.L. ETHICS & PUB. POL'Y 5, 5-6 (2005).
93. Such substantive limitations were fatally compromised following the Court's decision in United States v. Alvarez-Machain, 504 U.S. 655 (1992). In Alvarez-Machain, a defendant abducted from Mexico and brought to the United States to face criminal charges asserted that the U.S. action was in violation of the U.S. extradition treaty with Mexico, which did not authorize removals absent Mexico's consent.
94. Id. at 657-58.
95. For another example of great weight treaty interpretation by the Rehnquist Court, see Itel Containers International Corp. v. Huddleston, 507 U.S. 60 (1993), which rejected the petitioner's challenge to the Executive's proffered treaty interpretation as inconsistent with earlier practice.
96. 457 U.S. 176 (1982).
97. See id. at 184 n.10, 184-85 (demonstrating the Court's deference to the State Department's treaty interpretation even though it was initially "ambiguous").
98. See United States v. Stuart, 489 U.S. 353, 366-70 (1989) (relying on an Internal Revenue Service interpretation of a treaty despite previously finding that the meaning of the treaty was plain on its face).
99. See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 133, 133-35 (1989) (rejecting the Executive's argument that a "drafting error" accounted for a discrepancy between the correct interpretation of a treaty and its clear text).
100. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) ("Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.").
101. See Wu, supra note 46, at 573 (making a descriptive claim that judicial enforcement of treaties "turns mainly on who is accused of being the party in breach and the perceived competence of the judiciary to offer a remedy").
102. Among these are the act-of-state doctrine and the political-question doctrine (largely dead within the context of domestic affairs).
103. See Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. COLO. L. REV. 1395, 1396 (1999) (arguing that courts are not qualified to engage in assessing the effects of judgments on foreign affairs).
104. First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring).
105. See Goldsmith, supra note 81, at 1422 (characterizing this justification as indicative of the "lawlessness" of the foreign-relations-effects test, whether applied by the Executive or the Judiciary).
106. See, e.g., Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp, 333 U.S. 103, 111 (1948) ("[T]he very nature of executive decisions as to foreign policy is political, not judicial.... They are delicate, complex, and involve large elements of prophecy.... They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility. .. .");
107. Att'y Gen. of Can. v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 114 (2d Cir. 2001) ("When a foreign nation appears as a plaintiff in our courts seeking enforcement of its revenue laws, the judiciary risks being drawn into issues and disputes of foreign relations policy that are assigned to-and better handled by - the political branches of government.").
108. See Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71, 130-34 (2000) (discussing the arguments against an active judicial role in foreign affairs, particularly that courts are institutionally incompetent in such matters and that sufficient political safeguards already exist);
109. Yoo, supra note 47, at 1315 (arguing that considering the treaty power as another type of legislative power would contradict the Framers' understanding of the separation of powers between the Legislative and Executive Branches).
110. See ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS 161-81 (2007) (defending the judicial-deference approach against various alternative approaches regarding the President's exercise of emergency powers).
111. See, e.g., Then v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996) (deferring to the interpretations of the State Department in determining that a valid extradition treaty existed between Singapore and the United States);
112. see also Bradley, supra note 3, at 660 (explaining that the Supreme Court has accepted as legally binding the Executive Branch's decision on whether a foreign nation continues to remain a party to a treaty).
113. Bradley, supra note 3, at 661, 661-62;
114. see also, e.g., Regan v. Wald, 468 U.S. 222, 242 (1984) (noting foreign interest in economic sanctions targeting Cuba).
115. See Bradley, supra note 3, at 659-63 (discussing a variety of situations in which the courts generally defer to the Executive Branch in its handling of foreign affairs).
116. See, e.g., Chesney, supra note 4, at 1732 ("[T]here is considerable confusion with respect to the obligation to give at least some deference to executive treaty interpretations");
117. Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941, 975 (2004) (proposing a comparative-institutionalism approach to analyzing the political-question doctrine in the context of foreign affairs).
118. See generally Nzelibe, supra note 90, at 967-75 (systematically criticizing the early Court's formalist approach to the foreign-affairs power, the "internationalist" approach to the problem, and the "liberalist" response to the internationalist approach, and advocating a comparative institutionalist analysis).
119. The institutional values and deficiencies included in this Part are not exhaustive in nature but rather designed to highlight core institutional concerns and values present in determining a system of deference.
120. See supra notes 20-21, 85-89 and accompanying text.
121. See U.S. CONST, art. II, § 2, cl. 2.
122. Avoiding ratification procedures enables the President to create international agreements with other nations with the most minimal interference of other branches of government. But see John K. Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?, 31 J. LEGAL STUD. S5, S12-16 (2002) (outlining reasons why a rational, utility-maximizing President may desire to forego an executive agreement and attempt to gain congressional approval for ratification in conformance with Article II requirements).
123. This burden is not limited to self-executing treaties. Non-self-executing treaties may, in fact, place a greater burden on the Executive as other signatories pressure the Executive to craft and pass legislation implementing provisions of such a treaty.
124. See generally RICHARD F. GRIMMETT, FOREIGN POLICY ROLES OF THE PRESIDENT AND CONGRESS (1999), http://fpc.state.gov/fpc/6172.htm (discussing different methods by which the Executive and Congress affect foreign policy).
125. See, e.g., World Opinion Roundup, http://blog.washingtonpost.com/ worldopinionroundup/2006/07/guantanamo_reaction_seen_as_us.html (July 26, 2006, 12:38 EST) (discussing positive reaction to the Supreme Court ruling in United States v. Hamdan among world newspapers); .
126. see also Joseph Carroll, Slim Majority of Americans Approve of the Supreme Court, GALLUP, Sept. 26, 2007, http://www.gallup.com/ poll/28798/Slim-Majority-Americans-Approve-Supreme-Court.aspx (highlighting a national opinion poll giving the Supreme Court a 51% approval rating, as compared with President Bush's 36% approval rating and Congress's 24% approval rating).
127. See POSNER & VERMEULE, supra note 86, at 272 ("To be able to respond to international crises, the president cannot be hemmed in by international treaties and constitutional limitations, as interpreted by judges.").
128. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). For example, Thomas Franck describes the Judiciary's retreat from cases involving "political questions" as a "Faustian pact." THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF LAW APPLY TO FOREIGN AFFAIRS? 13, 10-13 (1992);
129. see also, e.g., Bradley, supra note 3, at 665 ("Almost invariably these commentators [criticizing judicial deference to the executive] invoke the importance of the 'rule of law' and quote reverently from Marbury.... [They] use phrases like 'judicial abdication' and talk about the courts having made 'Faustian pacts.'"
130. (citing FRANCK, supra, at 10-11
131. and Bederman, supra note 4, at 1442)).
132. Treaty on the Limitation of Anti-Ballistic Missile Systems, U.S.-U.S.S.R., May 26, 1972, 23 U.S.T. 3435.
133. See Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2647, 2646-48 (1997) (book review) (outlining the Reagan Administration's proposed "reinterpretation" of the ABM Treaty, which would in essence have amended the treaty without the consent of either the Senate or the Soviet Union).
134. Id. at 2646-48.
135. Id. at 2647.
136. See U.S. CONST, art. I, § 8, cl. 10 (establishing that Congress shall have the power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations").
137. Id. art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur (emphasis added)).
138. Id. art. I, § 8, cl. 18 (establishing Congress's power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers").
139. Hamdan serves as an example where the Court found such delegation lacking in the context of the Uniform Code of Military Justice. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774-75 (2006).
140. Note, however, that the Court recognized that Congress did delegate some authority to promulgate regulations, procedures, and substantive law under U.S. courts-martial. Id.
141. See Yoo, supra note 12, at 870-77 (providing examples of the Executive's ability to better adapt to the turbulent landscape of international relations, such as the notion that the President's decision-making processes can take on degrees of speed, secrecy, flexibility, and efficiency that no other governmental institution can match).
142. See, e.g., id. at 869 ("Article II's Vesting Clause must refer to inherent executive and judicial powers unenumerated elsewhere in the document.").
143. Id. at 870.
144. It is easy to imagine that after repeated instances of treaty "reinterpretations" rendering treaty violations lawful, the treaty partners will react similarly in retaliation. A rejoinder to this concern would contend that as long as those politically accountable are making that decision, they can be held responsible in the course of elections. This rebuttal is only effective to the extent one believes that such accountability will preclude "reinterpretations" generally. Alas, most evidence is to the contrary, essentially demonstrating that the political branches are the most likely to follow the path most politically expedient at that moment. See generally Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2319-22 (2006) (discussing perverse incentives in decision making by the political branches). As such, short-term calculations are likely to sacrifice long-term policy goals, such as generalized treaty compliance and good faith.
145. See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2684 (2006) ("If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law is emphatically the province and duty of the judicial department." (internal quotation marks omitted)).
146. 126 S. Ct. 2669 (2006).
147. Id. at 2684-85.
148. Id. at 2685-86.
149. 2001 I.C.J. 466 (June 27).
150. 2004 I.C.J. 12 (Mar. 31).
151. Sanchez-Llamas, 126 S. Ct. at 2684 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
152. Id.
153. 529 U.S. 362 (2000).
154. Id. at 378-79.
155. E.g., Bradley, supra note 3, at 679 (focusing on three types of foreign-affairs law to which Chevron deference should apply: federal statutory law, both treaty-based and customary international law, and the federal common law of foreign relations);
156. Posner & Sunstein, supra note 69, at 1228 (concluding that courts should defer to executive interpretations of ambiguous enactments and that because clear legislation is controlling under Chevron step one, nothing in that argument excludes the possibility that Congress is entitled to the last word).
157. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
158. Id. at 843.
159. See Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. ON REG. 1, 30-31 (1998) (analyzing court applications of the Chevron doctrine and finding a substantial majority of courts uphold agency interpretations, especially when courts reach the question of reasonableness).
160. See, e.g., Texas v. United States, 497 F.3d 491, 501-04 (5th Cir. 2007) (applying versions of these three factors when determining the reasonableness of the agency's interpretation of the Indian Gaming Regulatory Act).
161. See Bradley, supra note 3, at 703 (arguing that Chevron-deference principles and values fit comfortably within the realm of foreign affairs generally and treaty interpretation in particular).
162. See Posner & Sunstein, supra note 69, at 1177 n.14 (distinguishing the approach offered by Professor Bradley).
163. Id. at 1176-77.
164. See Bradley, supra note 3, at 673 (explaining that the Executive is particularly well suited for "interpretive lawmaking" because it has "more expertise and democratic accountability than courts");
165. Posner & Sunstein, supra note 69, at 1177, 1176-77 (arguing that the resolution of statutory ambiguities in this context requires "judgments of policy and principle" and that the Executive has both the foreign-policy expertise and the "constitutional warrant" for making those underlying judgments).
166. Specifically, the doctrine has been the subject of substantial scrutiny and has gathered an increased level of procedural clarity as a result. The Judiciary is familiar with the doctrine and presumably comfortable with its application.
167. Posner & Sunstein, supra note 69, at 1226. While not a "proponent" of Chevron deference in foreign affairs, Professor Robert Chesney asserts that Chevron "preserves a relatively meaningful degree of judicial independence." Chesney, supra note 4, at 1766.
168. See Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1269 (2007)
169. (critiquing the application of "genuinely ambiguous" or "vague and ambiguous" standards (quoting Posner & Sunstein, supra note 69, at 1217, 1227)).
170. See Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1057-59 (finding that circuit courts deferred to agency decisions at a higher rate after Chevron was decided - a rate that shows it is very unlikely an agency's interpretation will be deemed unreasonable if entitled to Chevron deference).
171. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 825-26 (2006).
172. See Goldsmith, supra note 81, at 1396 (arguing that the foreign-relations doctrines involve judicial identification and assessment of the foreign-relations interests of the United States and predicting "the effects of certain acts ... on these interests").
173. See generally Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 236, 231-47 (2006) (noting the problems with the Supreme Court's current framework for deciding when to apply Chevron deference, including its apparent endorsement of an "exception" from Chevron deference for "major questions" of statutory interpretation that in the Court's view require judicial review).
174. See, e.g., United States v. Mead Corp., 533 U.S. 218, 234 (2001) (holding that classification rulings issued by the U.S. Customs Office are not entitled to Chevron deference because they are more akin to policy statements, agency manuals, and enforcement guidelines);
175. Matz v. Household Int'l Tax Reduction Inv. Plan, 265 F.3d 572, 575 (7th Cir. 2001) ("Upon reading Mead, we find that a litigation position in an amicus brief, perhaps just as agency interpretations of statutes contained in formats such as opinion letters, policy statements, agency manuals, and enforcement guidelines are entitled to respect only to the extent that those interpretations have the power to persuade pursuant to Skidmore." (citation omitted)).
176. Here Gonzales v. Oregon, 546 U.S. 243 (2006) is instructive. In this case, the Court rejected an interpretive position offered by the Attorney General due to lack of medical expertise.
177. Id. at 268-75.
178. See Christensen v. Harris County, 529 U.S. 576, 588 (2000) (holding that an agency opinion letter was not entitled to Chevron deference because it was not subject to notice-and-comment rule making).
179. This is essentially the position of Posner and Sunstein. Compare Posner & Sunstein, supra note 69, at 1177 n.14 (advocating for the application of Chevron deference to foreign-relations doctrines based on theoretical and functional reasons, such as the Executive's "superior expertise in foreign relations"),
180. with Bradley, supra note 3, at 673, 673-74 (arguing, on largely doctrinal grounds, that applying a "Chevron perspective" to foreign-affairs cases would provide a valuable framework for understanding many of the foreign-affairs doctrines and impose legal constraints on the Executive while accounting for executive expertise and authority in foreign affairs).
181. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (explaining that Congress has delegated policy making responsibilities to agencies, in part because those agencies possess "great expertise" in their respective areas).
182. See supra note 135 and accompanying text.
183. Unlike questions as to the content of customary international law, treaties form part of the "supreme Law of the Land" of the United States. U.S. CONST. art. VI. This status embeds treaties as part of the domestic legal landscape alongside the Constitution and statutes of the United States.
184. See David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 211 (characterizing application of the Chevron doctrine as subject to a judicial finding of "indicia of contrary congressional desire" regarding deference to agency authority). Subsequent decisions and academic commentary have mainly divided the potential rationale for deference into three elements. First, administrative agencies possess unique expertise and flexibility in their field of operation. Judicial interpretations rejecting administrative counterparts would hinder administrative operation by requiring a congressional act, or higher judicial action. Such contrary interpretive decisions would be more numerous absent robust deference. Second, the resolution of "gaps or ambiguities" in federal law should be left to an institution politically accountable for its actions. Interpretive acts inherently require policy judgments that the Judicial Branch is least equipped to make. Finally, the complexity of the administrative state and plethora of policy judgments left to Congress has meant that the Legislative Branch intentionally delegates the task of interpretation to the relevant agency. This delegation enables the agency to utilize its institutional benefits of flexibility and expertise clothed with the authority of legitimate power.
185. See generally, e.g., Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 391 n.12 (3d Cir. 1994) (listing two paramount rationales for deference as expertise and congressional intent);
186. Mich. Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1293
187. off'd by an equally divided Court, 493 U.S. 38 (1989);
188. Fed. Election Comm'n v. Christian Coal., 52 F. Supp. 2d 45, 82 n.40 (D.D.C. 1999) (listing two leading rationales for deference as agency expertise and a preference for political branches to make policy decisions because of political accountability);
189. Elliot Greenfield, A Lenity Exception to Chevron Deference, 58 BAYLOR L. REV. 1, 19-20 (2006) (listing rationales of expertise, accountability, and congressional intent);
190. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 743-44 (2004) (same).
191. 533 U.S. 218 (2001).
192. Id. at 221.
193. See id. at 230 ("Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.").
194. See Michael P. Van Alstine, The Judicial Power and Treaty Delegation, 90 CAL. L. REV. 1263, 1300-01 (2002) (describing the questionable foundation for deference where a private right of action provides little opportunity for the administration of executive agencies).
195. See Evan Criddle, Comment, Chevron Deference and Treaty Interpretation, 112 YALE L.J. 1927, 1931 n.23 (2003) ("Treaties' contractual character helps explain why few, if any, treaties provide textual support for an implied delegation of interpretive authority to municipal executive agencies.").
196. See U.S. CONST, art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur....").
197. Jinks & Katyal, supra note 134, at 1253.
198. See id. (discussing how the Senate can limit the discretion of courts by defining the constraints and allowances to the Executive within treaties).
199. Id. at 1265.
200. Id. at 1244-45.
201. U.S. Dep'ts of the Army, the Navy, the Air Force, and the Marine Corps, Army Regulation 190-8/OPNAVINST 3461.6/AFJI 31-304/MCO 3461.1, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees § 1-1(4) (1997), available at http://www.au.af.mil/au/awc/awcgate/law/ar190-8. pdf.
202. Van Alstine, supra note 150, at 1270.
203. See Jinks & Katyal, supra note 134, at 1234 (defining the "executive-constraining zone" of foreign-relations law).
204. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2789-98 (2006).
205. Id. at 2795, 2795-96.
206. See Chesney, supra note 4, at 1773 (describing Hamdan as a case in which the functional justification for judicial deference is undermined because executive-branch entities did not agree among themselves on the correct interpretation of the treaty).
207. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
208. Id. at 139, 139-40.
209. See id. at 139-40 (discussing, explicitly and implicitly, various factors that courts should consider when weighing the persuasiveness of a particular agency interpretation of a statute);
210. see also Thomas W. Merrill & Kristen E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 853-56 (2001) (discussing the differences between Chevron deference and Skidmore deference and expanding on the factors courts consider when applying Skidmore deference). Although the Court in Skidmore never lists out a fixed set of factors, these four factors capture the essence of the Court's flexible approach to deference to agency action.
211. Skidmore, 323 U.S. at 140.
212. See, e.g., Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749, 1807 (2007);
213. Daniel J. Gifford, The Emerging Outlines of a Revised Chevron Doctrine: Congressional Intent, Judicial Judgment, and Administrative Autonomy, 59 ADMIN. L. REV. 783, 784 (2007).
214. See Molly A. Leckey & Stephanie A. Roy, Recent Decisions of the United States Court of Appeals for the District of Columbia Circuit: Administrative Law, 72 GEO. WASH. L. REV. 946, 954 (2004) (arguing that under Skidmore, "the court will simply engage in a de novo review of the statute through the use of traditional tools of statutory interpretation, and if by chance, the agency's interpretation matches the court's de novo interpretation, only then will the court grant Skidmore deference to the agency's construction").
215. At the margins, any system for deference is subject to manipulation. See Miles & Sunstein, supra note 136, at 847 (showing empirically that independent judicial decisions applying Chevron are largely motivated by ideology).
216. See Merrill & Hickman, supra note 165, at 855 ("Skidmore is properly regarded as a deference doctrine because the court cannot ignore the agency interpretation - the court must assess that interpretation against multiple factors and determine what weight they should be given. After undertaking this analysis, however, agency interpretations receive various degrees of deference, ranging from none, to slight, to great....").
217. A greater concern arises in their misguided attempts to gauge the effects on foreign relations that their own decisions might incur if they were to decide against the Executive's position. See Goldsmith, supra note 81, at 1396 (discussing the "foreign relations effects test").
218. See Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 CORNELL J.L. & PUB. POL'Y 203, 267 (2004) (noting that unlike Skidmore, nowhere under Chevron is it "proper for a court to measure the reasonableness of an agency's interpretation against the criterion of the agency's self-interest").
219. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773 n.23 (2006) (noting that the President "may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers");
220. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (holding an executive order seizing steel mills unconstitutional because congressional legislation on the subject gave the Executive no such right). This is not to say, however, that there are no limitations on the ability of the political branches to preclude or mandate an interpretive issue to the Judiciary without altering the status of the underlying treaty as supreme federal law.
221. See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2684 (2006) (stating that if treaties are to be treated as supreme federal law, "determining their meaning as a matter of federal law 'is emphatically the province and duty of the judicial department'"
222. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))).
223. See Ingrid Brunk Wuerth, The Dangers of Deference: International Claim Settlement by the President, 44 HARV. INT'L L.J. 1, 13 (2003) ("Whatever the appropriate line between sole executive agreements and treaties, the text of the Constitution seems clear that only treaties have the force of domestic law."). One example is the requirement of the dismissal of litigation in order to avoid additional litigation or political turmoil with another nation.
224. See Agreement Concerning the Foundation "Remembrance, Responsibility and the Future," U.S.-F.R.G., July 17, 2000, 39 I.L.M. 1298 (outlining the agreement between the United States and Germany that litigation relating to the Holocaust be dismissed in favor of a German administrative solution designed to provide restitution for victims of the Holocaust).
225. U.S. CONST, art. VI.
226. Id. art. II, § 2, cl. 2.
227. See Skidmore v. Swift & Co, 323 U.S. 134, 140 (1944).
228. See, e.g., Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621, 688 (2004) (describing the monitoring requirements of the six major human rights treaties-to many of which the United States is a party-which include the regular submission of compliance reports to a supervisory organ of the treaty body).
229. See, e.g., Marian Nash Leich, Contemporary Practice of the United States Relating to International Law, 82 AM. J. INT'L L. 336, 348 (1988) (listing monitoring by the United States among provisions in an arms-control and disarmament treaty between the United States and the U.S.S.R.);
230. Thomas F. Mullin, Comment, AIDS, Anthrax, and Compulsory Licensing: Has the United States Learned Anything? A Comment on Recent Decisions on the International Intellectual Property Rights of Pharmaceutical Patents, 9 ILSAJ. INT'L&COMP. L. 185, 196 (2002) (observing that China's obligations relating to its negotiated accession to the World Trade Organization would be monitored by the United States).
231. See Merrill & Hickman, supra note 165, at 855 ("Skidmore is properly regarded as a deference doctrine because the court cannot ignore the agency interpretation - the court must assess that interpretation against multiple factors and determine what weight they should be given. After undertaking this analysis, however, agency interpretations receive various degrees of deference, ranging from none, to slight, to great, depending on the court's assessment of the strength of the agency interpretation under consideration.").
232. Id. at 856;
233. see, e.g., Rust v. Sullivan, 500 U.S. 173, 187, 186-87 (1991) (stating that an agency's interpretation that breaks dramatically from its prior position on a matter will still be afforded deference so long as it is a permissible construction of the statute in question and is justified by a "reasoned analysis"
234. (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983))).
235. Krzalic v. Republic Title Co., 314 F.3d 875, 879 (7th Cir. 2002);
236. see id. (relying on language from Barnhart v. Walton, 535 U.S. 212 (2002) that outlines considerations the Supreme Court has found persuasive in deciding when Chevron deference is appropriately applied).
237. Id. at 882 (Easterbrook, J., concurring) ("I do not perceive in Walton any 'merger' ... between Chevron and Skidmore, which Mead took such pains to distinguish. HUD's interpretation is on the Skidmore side of the line.").
238. Further, any such history is frequently, if not usually, sparse and inconsistent.
239. Professors Posner and Sunstein emphasized that any such ambiguity must be genuine before any controversy as to the propriety of executive action should arise. See Posner & Sunstein, supra note 69, at 1178 (emphasizing that their analysis is restricted to instances of genuine ambiguity in the governing law and would not apply to clear congressional mandates, even with respect to international law created through self-executing treaties or treaties given domestic effect by clear congressional action). Professors Jinks and Katyal, on the other hand, point out the inherent difficulty in determining whether such ambiguity is genuine.
240. See Jinks & Katyal, supra note 134, at 1269 (arguing that "genuine ambiguity" has no consistently measurable standard as, consciously or unconsciously, ambiguity in the law is often identified in line with latent policy goals).
241. See Van Alstine, supra note 150, at 1300 ("[W]ithout an entrustment of continuing administrative authority to an executive-branch agency, what remains is a sliding-scale deference calibrated to the overall persuasiveness of a proffered executive-branch interpretation of a treaty and to any implications for our nation's foreign affairs.").