The separation of powers as a safeguard of nationalism

Notre Dame Law Review

Volumn 83, Issue 4, 2008, Pages 1601-1637

  Vázquez, Carlos Manuel ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 50949106978     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (158)

1. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001).
2. See id. at 1328-31.
3. See id. at 1331-46.
4. See id. at 1328-29 ("The Founders designed 'the interior structure of the government' not only to empower the political branches to check each other, but also to ensure that they would consider state prerogatives in performing their functions.").
5. See id. at 1342-43 ("Federal lawmaking procedures... maximized state influence by singling out the Senate - the federal institution in which the states had the greatest influence - to participate in all forms of federal lawmaking.").
6. See id. at 1338-39. Clark does not agree with Professors Wechsler and Choper that the Constitution entirely relegates state interests to the political safeguards of federalism. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-76 (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 558 (1954). Clark clearly does not maintain that the courts should decline to exercise judicial review of federal legislation to enforce the limits of congressional power. See Clark, supra note 1, at 1368; cf. CHOPER, supra, at 175-76 (noting that "the constitutional issue of whether federal action is beyond the authority of the central government and thus violates 'states' rights' should be treated as nonjusticiable"). But he does maintain that the procedural requirements for enacting supreme federal law were among the Constitution's mechanisms for protecting state interests. See Clark, supra note 1, at 1375.
7. See U.S. CONST. art. I, § 7, cl. 2.
8. See id. art. II, § 2, cl. 2.
9. I borrow that gauntlet metaphor from Ernest A. Young, State Sovereign Immunity and the Future of Federalism, 1999 SUP. CT. REV. 1, 25.
10. See Clark, supra note 1, at 1339.
11. See infra notes 24-34 and accompanying text.
12. 128 S. Ct. 1346 (2008).
13. See Clark, supra note 1, at 1331.
14. See id. at 1338.
15. Assume also that such a law would not otherwise exceed legislative power under the Constitution. Clark's structural protection for federalism serves to supplement, not replace, judicial review for conformity with Article I, Section 8. In any event, a federal contract law would pass muster under United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), and Gonzales v. Raich, 545 U.S. 1 (2005), as it would regulate commercial activity.
16. See RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S FEDERAL COURTS AND THE FEDERAL SYSTEM 495 (5th ed. 2003) [hereinafter HART & WECHSLER] ("[A]t present federal law appears to be more primary than interstitial in numerous areas.").
17. See Clark, supra note 1, at 1344.
18. U.S. CONST. art. I, § 7, cl. 2.
19. See Goldwater v. Carter, 481 F. Supp. 949, 950 (D.D.C. 1979) ("Plaintiffs seek to have this Court declare that the termination of the 1954 Treaty cannot be legally accomplished... without the advice and consent of the United States Senate or the approval of both houses of Congress."), rev'd, 617 F.2d 697 (D.C. Cir. 1979), vacated, 444 U.S. 996 (1979).
20. Goldwater, 444 U.S. at 1002-05 (Rehnquist, J., concurring). In a concurring opinion, Justice Powell described the issue as not ripe for judicial review because Congress had not confronted the President regarding the termination. "The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." Id. at 997 (Powell, J., concurring). Justice Blackmun, joined by Justice White, dissented in part. He agreed to grant the petition for certiorari but would have also set the case for oral argument and given the issues plenary consideration. See id. at 1006 (Blackmun, J., dissenting in part). Justice Brennan argued that the President had power to terminate the treaty at issue. Noting that "the power to recognize, and withdraw recognition from, foreign regimes" is committed to the President alone, Justice Brennan viewed the treaty termination as a "necessary incident" to the executive's recognition of the People's Republic of China. See id. at 1007 (Brennan, J., dissenting). The treaty was based on the "now-abandoned view" that the Taiwan government was China's only legitimate regime. See id.
21. President Bush's recent termination of the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Dis-putes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487, which agreed to the compulsory jurisdiction of the International Court of Justice over VCCR disputes, id. art. I, 21 U.S.T. at 326, 596 U.N.T.S. at 488, appears to have generated little constitutional controversy. The United States withdrew from the protocol on March 7, 2005. See Philip V. Tisne, The ICJ and Municipal Law: The Precedential Effect of the Avena and Lagrand Decisions in U.S. Courts, 29 FORDHAM INT'L L.J. 865, 865 n.3 (2006).
22. For a critique of this approach, see Jack M. Balkin, Abortion and Original Meaning 24 CONST. COMMENT. 291, 295-303 (2007); see also Mitchell N. Berman, Originalism and Its Discontents (Plus a Thought or Two About Abortion) 384 (Univ. of Tex. Sch. of Law, Pub. Law & Legal Theory Research Paper No. 117, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957630 (asserting that almost nobody embraces the original expected application approach).
23. Clark, supra note 1, at 1425 (describing the clear statement rule of Gregory v. Ashcroft, 501 U.S. 452, 464-70 (1991)).
24. The legislative powers of Congress consisted of the power of "establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated [, and] granting letters of marque and reprisal in times of peace" as well as regulating the alloy and value of coin struck by their own authority, or by that of the respective States - fixing the standards of weights and measures throughout the United States - regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated - establishing or regulating post offices from one State to another, throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office... making rules for the government and regulation of the said land and naval forces, and directing their operations. ARTICLES OF CONFEDERATION art. IX (U.S. 1781).
25. See id.
26. See id. (providing that "no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever").
27. See id.
28. See id. art. XIII.
29. See id. (providing that "[e]very State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them"); see also New York v. United States, 505 U.S. 144, 163 (1992) ("Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly. In practice, Congress 'could not directly tax or legislate upon individuals; it had no explicit legislative or governmental power to make binding law enforceable as such.'" (quoting Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1447 (1987))).
30. See James McHenry, Notes on the Constitutional Convention (May 29, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 24, 24-27 (Max Farrand ed., rev. ed. 1937) [hereinafter FARRAND'S RECORDS] (enumerating the problems of the Articles of Confederation that the Constitutional Convention aimed to correct, including the ability of state governments to encroach on national power); see also James Madison, Notes on the Constitutional Convention (July 17, 1787), in 2 FARRAND'S RECORDS, supra, at 25, 27 ("The necessity of a general Govt. proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled."); James Madison, Notes on the Constitutional Convention (June 8, 1787), in FARRAND'S RECORDS, supra, at 164, 167 ("To correct [the Articles of Confederation's] vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts.").
31. Compare ARTICLES OF CONFEDERATION art. IX (U.S. 1781) ("The United States assembled in Congress shall never [exercise most enumerated powers] unless nine States assent to the same"), with U.S. CONST. art. I, § 8 (enumerating the powers of Congress without imposing a supermajority voting requirement).
32. The Articles established a unicameral Congress, see ARTICLES OF CONFEDERATION art. V (U.S. 1781), and no separate executive branch.
33. See id.
34. Compare ARTICLES OF CONFEDERATION art. IX (U.S. 1781) (enumerating limited congressional powers, see supra note 24), and id. art. XIII ("[N]or shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State"), with U.S. CONST. art. I, § 8 (enumerating the powers of Congress under the Constitution, including the power to "to regulate Commerce" and to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof").
35. On June 26, 1787, delegates to the Constitutional Convention dismissed proposals that would have tied senators more directly to the states they represented. Oliver Ellsworth proposed dial states, rather than the nation, should pay their senators. See James Madison, Notes on the Constitutional Convention (June 26, 1787), in 1 FARRAND'S RECORDS, supra note 30, at 421, 427. James Madison argued against the proposal, noting that it would make the Senate "the mere Agents & Advocates of State interests & views, instead of being the impartial umpires & Guardians of justice and general Good." Id. at 428. Madison's vision of impartial, national senators prevailed in this regard when Ellsworth's motion failed. See id. Similarly, General Charles Pinckney argued that senators should serve only four year terms, so that they would not "settle in the State where they exercised their functions; and would in a little time be rather the representatives of that than of the State appoint'g them." Id. at 421. For an analysis holding that the rejection of these proposals meant "[t]he Senate itself would embody the mixed character of the Constitution," see JACK N. RAKOVE, ORIGINAL MEANINGS 170-71 (1996).
36. U.S. CONST. art. VI., cl. 2.
37. Medellín v. Texas, 128 S. Ct. 1346, 1356-57 n.2 (2008).
38. See id. at 1356-67.
39. See 1 OPPENHEIM'S INTERNATIONAL LAW § 582, at 1199-203 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
40. See id. § 21, at 82.
41. See id. at 82-86.
42. See id.
43. See id. at 83.
44. See id.
45. See, e.g., IAN BROWNLIE, STATE RESPONSIBILITY: PART I, at 241 (1983); 1 OPPENHEIM'S INTERNATIONAL LAW, supra note 39, § 21, at 82-83 ("From the standpoint of international law states are generally free as to the manner in which, domestically, they put themselves in the position to meet their international obligations; the choice between the direct reception and application of international law, or its transformation into national law by way of statute, is a matter of indifference, as is the choice between the various forms of legislation, common law, or administrative action as the means of giving effect to international obligations. These are matters for each state to determine for itself according to its own constitutional practices."); Pierre-Marie Dupuy, Reviewing the Difficulties of Codification: On Ago's Classification of Obligations of Means and Obligations of Result in Relation to State Responsibility, 10 EUR. J. INT'L L. 371, 375-82 (1999).
46. See Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Presumption of Self Execution, 122 HARV. L. REV. (forthcoming 2008) (manuscript at 15-16), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1118063.
47. See id.
48. See id. (manuscript at 16-19).
49. U.S. CONST. art. VI., cl. 2. For a discussion of the Framers' reasons for taking this step and the ramifications of this decision, see Vázquez, supra note 46 (manuscript at 19-28).
50. U.S. CONST. art. II, § 3.
51. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
52. U.S. CONST. art. VI, cl. 2.
53. See Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AM. J. INT'L L. 695, 695 (1995).
54. U.S. CONST. art. VI, cl. 2.
55. See Vázquez, supra note 53, at 722-23.
56. See id. at 718-19.
57. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 cmt. i (1987). But see Jordan J. Paust, Self-Executing Treaties, 82 AM. J. INT'L L. 760, 775, 778, 780-81 (1988).
58. See Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir. 1980) ("Treaty regulations that penalize individuals... are generally considered to require domestic legislation before they are given any effect."); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111 cmt. i (1987); Yuji Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 VA. J. INT'L L. 627, 676 n.239 (1986). But see Paust, supra note 57, at 775, 780. In The Over the Top, 5 F.2d 838 (D. Conn. 1925), the court said that "[i]t is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose no treaty is self-executing." Id. at 845.
59. See Vázquez, supra note 53, at 710-18.
60. See INS v. Stevic, 467 U.S. 407, 428-29 n.22 (1984) (describing Article 34 of the Refugee Convention as "precatory and not self-executing"); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J., concurring) ("Articles 1 and 2 [of the United Nations Charter] contain general 'purposes and principles,' some of which state mere aspirations and none of which can sensibly be thought to have been intended to be judicially enforceable at the behest of individuals."); Sei Fujii v. State, 242 P.2d 617, 619 n.2 (Cal. 1952) (en bane) (holding that a United Nations Charter provision requiring states to "promot[e] and encourag[e] respect for human rights" was not self-executing).
61. See Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976) (holding a Security Council Resolution not self-executing because it "does not provide specific standards"); Saipan v. U.S. Dep't of Interior, 502 F.2d 90, 99 (9th Cir. 1974) (asking whether the Trusteeship Agreement over the Pacific Islands was "too vague for judicial enforcement"); Greenpeace USA v. Stone, 748 F. Supp. 749, 767 (D. Haw. 1990) (citing the lack of "standards or procedures to judicially enforce the treaty"); Am. Baptist Churches in the U.S.A. v. Meese, 712 F. Supp. 756, 770 (S.D. Cal. 1989) (holding that Article 1 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War was not self-executing because "[t]he language used does not impose any specific obligations on the signatory nations," and therefore did not provide "any intelligible guidelines for judicial enforcement").
62. See Baker v. Carr, 369 U.S. 186, 217 (1962).
63. See Vázquez, supra note 53, at 719-22.
64. See id. at 719.
65. See id. at 719-20.
66. See id. at 720.
67. See id.
68. 27 U.S. (2 Pet.) 253, 314 (1829).
69. See id. at 253-54; Carlos M. Vázquez, Foster v. Neilson and United States v. Percheman: Judicial Enforcement of Treaties, in INTERNATIONAL LAW STORIES 151, 152-58 (John E. Noyes et al. eds., 2007).
70. Foster, 27 U.S. (2 Pet.) at 314.
71. Id. at 314-15.
72. The statement that non-self-executing treaties lack the force of domestic law has been repeated (without analysis) in lower-court cases, articles, and books. For a small sampling, see ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 162 n.21 (2d Cir. 2007) ("Non-self-executing treaties do not become effective as domestic law until implementing legislation is enacted."); Payne-Barahona v. Gonzáles, 474 F.3d 1, 3 (1st Cir. 2007) ("The treaties... have been held to be non-self executing.... They thus do not have the force of domestic law."); Fund for Animals, Inc., v. Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006) (Kavanaugh, J., concurring) ("Like statutes, self-executing treaties automatically become part of domestic American law. By contrast, non-self-executing treaties have no effect or force as a matter of domestic law (though Congress may choose to incorporate parts of non-self-executing treaties into domestic law by enacting implementing statutes)."); Renkel v. United States, 456 F.3d 640, 643 (6th Cir. 2006) ("'[N] on-self-executing' treaties do require domestic legislation to have the force of law."); SUE DAVIS, CORWIN AND PELTASON'S UNDERSTANDING THE CONSTITUTION 198 (17th ed. 2008); LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 198-209 (2d ed. 1996); Alona E. Evans, Some Aspects of the Problem of Self-Executing Treaties, 45 PROC. AM. SOC'Y INT'L L. 66, 68 (1951); Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781, 831 (1994). Compare Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (concluding that because "the [Warsaw] Convention is a self-executing treaty," "no domestic legislation is required to give [it] the force of law in the United States"), with United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (suggesting that a treaty's self-executing character and its having "the force of law" are separate questions).
73. See Foster, 27 U.S. (2 Pet.) at 314; cf. Medellín v. Texas, 128 S. Ct. 1346, 1356, 1362-63 (2008) (citing Foster for the proposition dial non-self-executing treaties lack the force of domestic law).
74. U.S. CONST. art. VI, cl. 2.
75. For elaboration of this thesis, see Vázquez, supra note 46 (manuscript at 38-39).
76. See Government in the Sunshine Act, 5 U.S.C. § 552b(g) (2000) ("Any person may bring a proceeding in the United States District Court for the District of Columbia to require an agency to promulgate such regulations if such agency has not promulgated such regulations within the time period specified herein."); Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1038-39 (1985) (challenging the Council of Economic Advisers for not promulgating regulations under the Sunshine Act). 77 See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent").
77. Except, perhaps, if implementation of the treaty is the sole constitutional basis for the statute and the claim is that the statute goes beyond what the treaty authorizes. Cf. Missouri v. Holland, 252 U.S. 416, 433-34 (1920) (holding that statutes implementing treaties may be valid even if they would not otherwise fall within the federal legislative power under Article I).
78. See Vázquez, supra note 46.
79. Medellín v. Texas, 128 S. Ct. 1346, 1356 n.2 (2008).
80. At a number of points in the opinion, the Court focuses on the intent of the President and/or the Senate, see id. at 1358-60, 1362, 1364, 1366-67, suggesting that the relevant intent is that of the United States treatymakers. On the other hand, the majority's focus on the text of the treaty (and its criticism of the dissent for failing to focus on the text) indicates that the relevant intent is that of the parties to the treaty. See id. at 1362 (referring to "our obligation to interpret treaty provisions to determine whether they are self-executing" (emphasis added)). Indeed, even when it refers to the intent of the President and/or the Senate, the majority focuses on their intent as reflected in the treaty's text. See id. at 1364 ("[W]e have held treaties to be self-executing when the textual provisions indicate that the President and Senate intended for the agreement to have domestic effect." (emphasis added)); id. at 1366 ("Our cases simply require courts to decide whether a treaty's terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect." (emphasis added)). But cf. id. at 1367 (referring to the intent of the President and Senate as reflected in "the text, background, negotiating and drafting history, or practice among signatory nations"). Whether a statement that a treaty is self-executing would satisfy the majority's test if it appeared in the executive branch documents submitting the treaty to the Senate, or in the Senate Report consenting to the treaty, or in a declaration attached to the instruments of ratification, remains to be seen. Cf. Vázquez, supra note 46 (manuscript at 48-69) (concluding that a declaration attached to instruments of ratification declaring an otherwise self-executing treaty to be non-self-executing would be valid and effective). Giving legal effect to an "intent" by the President and/or the Senate on an issue not addressed by the treaty itself would appear to violate the constitutional structure as understood by Clark, as it would give the effect of federal law to something that is not a statute, treaty, or constitutional amendment. See id. (manuscript at 68-69).
81. Medellín, 128 S. Ct. at 1356 (internal quotation marks and citation omitted) ("In sum, while treaties 'may comprise international commitments... they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be "self-executing" and is ratified on these terms.'" (alteration in original) (quoting Igartúa-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc))).
82. Id. at 1356 n.2.
83. See id. at 1362.
84. Id. at 1369; see also id. at 1364 ("[W]e have held treaties to be self-executing when the textual provisions indicate that the President and Senate intended for the agreement to have domestic effect."); id. at 1366 ("Our cases simply require courts to decide whether a treaty's terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.").
85. See supra notes 46-47 and accompanying text.
86. See 1 OPPENHEIM'S INTERNATIONAL LAW, supra note 39, at 1199-203.
87. See Carlos Manuel Vázquez, The "Self- Executing" Character of the Refugee Protocol's Nonrefoulement Obligation, 7 GEO. IMMIGR. L.J. 39, 46 (1993).
88. See U.S. CONST. art. II, § 2, cl. 2.
89. Id. art. VI, § 2.
90. Nick Rosenkranz, Assoc. Professor of Law, Georgetown Univ. Law Ctr., Comments from the Federalist Society Online Debate of Medellín v. Texas, Part I: Self-Execution (Mar. 28, 2008), http://www.fed-soc.org/ debates/dbtid.17/default.asp.
91. Medellin v. Texas, 128 S. Ct. 1346, 1354 (2008) (internal quotation marks and citation omitted).
92. Id. at 1356.
93. See U.S. CONST. art. VI, § 2.
94. See Vázquez, supra note 46 (manuscript at 19-21); Carlos Manuel Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1097-114 (1992) [hereinafter Vázquez, Treaty-Based Rights].
95. Cf. James Madison, Notes on the Federal Convention (Aug. 23, 1787), in 2 FARRAND'S RECORDS, supra note 30, at 384, 393 (noting that "Gouverneur Morris was "not solicitous to multiply & facilitate Treaties" as "[t]he more difficulty in making treaties, the more value will be set on them").
96. 3 U.S. (3 Dall.) 199 (1796).
97. Id. at 239 (opinion of Chase, J.) (emphases omitted) (quoting the Definitive Treaty of Peace, art. 4, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80, 82).
98. See id. at 276-77 (opinion of Iredell, J.).
99. See id.
100. See id. at 272 ("The present Constitution of the United States, affords the first instance of any government [saying] treaties should be the Supreme law of the land....").
101. See Vázquez, supra note 46 (manuscript at 40 n.191).
102. For elaboration, see id. (manuscript at 43-48).
103. Cf. Printz v. United States, 521 U.S. 898, 975 (1997) (Souter, J., dissenting) ("[T]he essence of legislative power, within the limits of legislative jurisdiction, is a discretion not subject to command.").
104. See Vázquez, supra note 46 (manuscript at 39).
105. See Medellín v. Texas, 128 S. Ct. 1346, 1367 n.2 (2008).
106. See id. at 1357-61.
107. See id. at 1365.
108. See, e.g., id. at 1360 (relying on the fact that Mr. Medellín was not a party to the ICJ's judgment); id. at 1372-74 (Stevens, J., concurring in the judgment).
109. See Posting of Julian Ku to Opinio Juris, http://www.opiniojuris. org/posts/12 06464651.shtml (Mar. 25, 2008, 13:04); Rosenkranz, supra note 91; Posting of Paul Stephan to Opinio Juris, http://www.opiniojuris.org/ posts/1206470637.shtml (Mar. 25, 2008, 14:43); Posting of Mark Weisburd to Opinio Juris, http://www.opiniojuris. org/posts/1206547402.shtml (Mar. 26, 2008, 12:03); Posting of Ernie Young to Opinio Juris, http://www.opiniojuris.org/ posts/1206477292.shtml (Mar. 25, 2008, 16:36). But cf. Posting of Mike Dorf to Dorf on Law, http://michaeldorf.org/2008/03/more-medellin-musings.html (Mar. 26, 2008 13:33) (referring to "the majority's presumption that, absent language to the contrary, a treaty should be deemed non-self- executing").
110. See Clark, supra note 1, at 1427-30.
111. See id. at 1423-24.
112. See supra notes 24-35 and accompanying text.
113. The basic rules are now codified in Articles 29-32 of the Vienna Convention on the Law of Treaties. See Vienna Convention on the Law of Treaties arts. 29-32, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 339-40. Although the United States is not a party to the Convention, it regards most of its provisions as reflective of customary international law. See Curtis A. Bradley, Unratified Treaties, Domestic Politics, and the U.S. Constitution, 48 HARV. INT'L L.J. 307, 314 (2007); David S. Jonas, The Comprehensive Nuclear Test Ban Treaty: Current Legal Status in the United States and the Implications of a Nuclear Test Explosion, 39 N.Y.U. J. INT'L L. & POL. 1007, 1031-32 (2007).
114. See Geofroy v. Riggs, 133 U.S. 258, 271 (1890) ("[I]n their construction words [in a treaty] are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended."). The reference to the public law of nations "seems to be a reminder that terms of art are to be construed in view of international usages and customary international law, not domestic constructions." David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953, 967 (1994).
115. See Steven P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AM. J. INT'L L. 193, 200 (1996) (suggesting "it is not clear in light of [the Vienna] Convention whether or how a panel could ever reach the conclusion that provisions of an agreement admit of more than one interpretation" because the Convention provides rules for resolving ambiguities in the text of an international agreement). But cf. Daniel K. Tarullo, The Hidden Costs of International Dispute Settlement: WTO Review of Domestic Anti-Dumping Decisions, 34 LAW & POL'Y INT'L BUS. 109, 175-79 (2002) (questioning whether the Vienna Convention provides rules to resolve all ambiguities in treaty text).
116. See, e.g., Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259-61 (1984); United States v. Rauscher, 119 U.S. 407, 417-18 (1886); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 284-85 (1796).
117. See Vázquez, Treaty-Based Rights, supra note 95, at 1102-03, 1162.
118. See Medellin v. Texas, 128 S. Ct. 1346, 1361 (2008).
119. Cf. Olympic Airways v. Husain, 540 U.S. 644, 660 (2004) (Scalia, J., dissenting) ("[I]t is reasonable to impute to the parties [to a treaty] an intent that their respective courts strive to interpret the treaty consistently.").
120. See Clark, supra note 1, at 1429.
121. See id. at 1435 ("Under the Supremacy Clause... the relevant inquiry is whether Congress intended to displace state law."). Clark observes that state law should be displaced only when the federal statute requires a court to do so. See id. at 1433.
122. See, e.g., William S. Blatt, Interpretive Communities: The Missing Element in Statutory Interpretation, 95 Nw. U. L. REV. 629 (2001); Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162 (2002); Ethan J. Leib, Friendship & the Law, 54 UCLA L. REV. 631 (2007); Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549 (2005).
123. Or she might not. Cf. Berman, supra note 22, at 385-89 (asserting that almost nobody embraces original expected application approach).
124. 17 U.S. (4 Wheat.) 316, 425-37 (1819).
125. See Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. REV. 559, 567-68 (1997) (noting that McCulloch established "a broad proscription [that] would allow courts to strike down vast numbers of state laws"); S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. REV. 685, 715 (1991) (noting that, under McCulloch, "merely 'interfering' with federal law justifies nullification of state law" (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210 (1824); McCulloch, 17 U.S. (4 Wheat.) at 430)).
126. See Clark, supra note 1, at 1423-24.
127. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964).
128. See Cannon v. Univ. of Chi., 441 U.S. 677, 740 (1979) (Powell, J., dissenting) ("Determining whether a private action would be consistent with the 'underlying purposes' of a legislative scheme permits a court to decide for itself what the goals of a scheme should be, and how those goals should be advanced."); RICHARD A. POSNER, THE FEDERAL COURTS 271-72 (1985) (discussing the effect of "a clash of interest groups" on the legislative process). My point in Part II is that the constitutional structure was not designed solely to safeguard federalism or the status quo, but reflects a compromise between federalism and nationalism or between continuity and change.
129. See Clark, supra note 1, at 1424.
130. See id. at 1423 (arguing that such actions by the Court undercut the Constitution's separation of powers and federal lawmaking procedures); see also Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (evaluating whether a statutory cause of action exists consistently with the restrictive approach by stating the question is one of "statutory construction" (citing Cannon, 441 U.S. at 688)); George D. Brown, Of Activism and Erie - The Implication Doctrine's Implications for the Nature and Role of the Federal Courts, 69 IOWA L. REV. 617, 644-49 (1984) (defending Justice Powell's position in Cannon denying the implication of private rights of action except in cases of compelling congressional intent); Richard W. Creswell, The Separation of Powers Implications of Implied Rights of Action, 34 MERCER L. REV. 973, 995 (1983) (explaining that the congressional intent approach safeguards federalism because the states are represented in the Senate). But see Susan J. Stabile, The Role of Congressional Intent in Determining the Existence of Implied Private Rights of Action, 71 NOTRE DAME L. REV. 861, 903-04 (1996) (arguing that implication decisions should not be based on congressional intent alone; rather, the decision to imply a private right of action should weigh several other factors).
131. See, e.g., Brown, supra note 131, at 645 (noting that in the absence of private rights of action, "state common-law remedies may well be available, at least if the area of law is not one of exclusive federal jurisdiction").
132. See Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 GEO. L.J. 1015, 1020, 1062 (2006) (noting that "[t]he Constitution... was written against a backdrop of... traditional common law interests").
133. See Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842) ("In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws."), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 VAND. L. REV. 1387, 1393 (1997) (characterizing "premodern" jurisprudence as "retain[ing] a faith in natural law principles as the foundation of the common law system and the ultimate source of legal knowledge").
134. See Erie, 304 U.S. at 78-79 (rejecting the premise that there is a "'transcendental body'" of common law that federal courts may ascertain independently of the states because " 'law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law... is not the common law generally but the law of that State existing by the authority of that State'" (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting))).
135. 542 U.S. 692 (2004).
136. See id. at 729.
137. See Carlson v. Green, 446 U.S. 14, 19 (1980) (recognizing a damages remedy for violation of the Eighth Amendment's prohibition on cruel and unusual punishment); Davis v. Passman, 442 U.S. 228, 244 (1979) (recognizing implied rights of action for damages under the Fifth Amendment's Due Process Clause); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395 (1971) (holding that the Fourth Amendment provides a cause of action for damages against federal officers).
138. In Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v. Chilicky, 487 U.S. 412, (1988), the Court held a new judicial remedy should not be created in light of the existing elaborate remedial schemes constructed by Congress. See id. at 428-29; Lucas, 462 U.S. at 389-90.
139. See supra notes 133-37 and accompanying text.
140. See Carlos M. Vázquez, The Constitution as Law of the Land: The Supremacy Clause and Judicial Review 30-57 (Apr. 18, 2008) (unpublished manuscript, on file with author).
141. See, e.g., THE FEDERALIST NO. 15, at 72-73 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).
142. See Vázquez, supra note 141.
143. In this respect, my argument parallels the textual defense of judicial review in Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 GEO. WASH. L. REV. 91 (2003). However, whereas Clark relies on the Supremacy Clause's denial of legal status to statutes not passed "in Pursuance" of the Constitution, see id. at 99-105, I rely on the Clause's designation of the Constitution as "Law."
144. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) ("Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action-decreeing them to be 'implied' by the mere existence of a statutory or constitutional prohibition."); Carlson v. Green, 446 U.S. 14, 39 (1980) (Rehnquist, J., dissenting) ("The determination by federal courts of the scope of such a remedy [for constitutional violations] involves the creation of a body of common law analogous to that repudiated in Erie...."). But see Ryan D. Newman, Note, From Bivens to Malesko and Beyond: Implied Constitutional Remedies and the Separation of Powers, 85 TEX. L. REV. 471, 476 (2006) (arguing that cases recognizing implied constitutional remedies do not violate the separation of powers).
145. See HART & WECHSLER, supra note 16, at 685 (defining federal common law as "federal rules of decision whose content cannot be traced by traditional methods of interpretation to federal statutory or constitutional commands").
146. See Clark, supra note 1, at 1330-31.
147. See id. at 1453-55.
148. See Boyle v. United Techs. Corp., 487 U.S. 500, 504-07 (1988); Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943).
149. This critique of federal common lawmaking is also developed in Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327, 349-52 (1992).
150. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 861-62 (1989).
151. See THE FEDERALIST No. 78 (Alexander Hamilton), supra note 142, at 407 ("To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them...."); see also Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 8 (2006) ("[T]he Founders expected judges to be constrained... by prior cases....").
152. See Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989) ("[T]he burden borne by the party advocating the abandonment of an established precedent is greater where the Court is asked to overrule a point of statutory construction. Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done."); Ill. Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) ("[Considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation."). See generally William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361 (1988) (examining the Court's "super-strong presumption against overruling statutory precedents").
153. Like statutory decisions, decisions regarding federal common law are subject to congressional revision.
154. For the same reason, it would be inappropriate for the Court to overrule its dormant Commerce Clause and dormant foreign affairs cases, even if one agreed with critics of these doctrines that these cases were erroneous when rendered. See Carlos Manuel Vázquez, W(h)ither Zschernig ?, 46 VILL. L. REV. 1259, 1308 (2001). It is well recognized that dormant Commerce Clause decisions are subject to congressional revision, see Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 75-76 (1993), and the same is presumably true of dormant foreign affairs decisions.
155. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529-42 (1935).
156. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472-76 (2001).
157. See William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 540-43 (1992); Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 179-95 (1994).
158. See Lawrence Lessig, Translating Federalism: United States v. Lopez, 1995 SUP. CT. REV. 125, 213; Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 439-42 (1995).