The political branches and the law of nations

Notre Dame Law Review

Volumn 85, Issue 5, 2010, Pages 1795-1822

  Bellia Jr , Anthony J ^a   Clark, Bradford R ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 79952937938     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (173)

1. See Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 COLUM. L. REV. 1 (2009).
2. U.S. CONST, art. VI, cl. 2. The Constitution recognizes only "This Constitution," "the Laws of the United States," and "Treaties" as "the supreme Law of the Land." Id. For a textual, historical, and structural argument that these are the exclusive sources of supreme federal law,
3. see Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001).
4. Bellia & Clark, supra note 1, at 55-75.
5. Id. at 58.
6. The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 146 (1812).
7. By "depart," we mean either to violate a customary international law rule without judicial recrimination or to "opt out" of a customary international law rule in a way that international law recognizes as legitimate.
8. See generally Curtis A. Bradley & G. Mitu Gulati, Withdrawing from International Custom, 120 YALE L.J. (forthcoming 2010), available at http://ssrn.com/abstract=1523906 (analyzing the authority of nations to withdraw from customary international law rules).
9. Louis Henkin, The President and International Law, 80 AM. J. INT'L L. 930, 931 (1986).
10. Id. at 933.
11. Id. at 933-34.
12. Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555, 1568 (1984).
13. Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 MICH. J. INT'L L. 301, 316 (1999);
14. see also JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 88, 124-25, 143-46, 154-60 (1996) (arguing that federal officials are bound by customary international law).
15. Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1130-31 (1985).
16. Id. at 1130;
17. see id. at 1131 (suggesting that many of the framers understood the Constitution to incorporate fundamental international principles as limitations on government conduct);
18. cf. Henkin, supra note 7, at 933 ("[T]here are plausible arguments that the Framers accepted customary law as binding on the United States, including Congress, and that it was intended to be of higher status than the laws of Congress in the domestic legal hierarchy.").
19. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 844-46 (1997) (describing such an argument).
20. See John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 STAN. L. REV. 1175, 1226-30 (2007).
21. U.S. CONST, art. II, §3, cl. 4;
22. see Michael J. Glennon, Can the President Do No Wrong?, 80 AM. J. INT'L L. 923, 923 (1986) ("Federal common law is binding on every executive branch official, including the President. ... [I]n the face of congressional silence, he is required to respect a clearly defined and widely accepted norm of customary international law." (footnote omitted));
23. Michael J. Glennon, Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. REV. 321, 325 (1985) [hereinafter Glennon, Raising] ("When the President acts in the face of congressional silence, federal common law governs the controversy. Because federal common law includes norms of customary international law, presidential violation of certain of those norms should be considered prima facie unconstitutional." (footnote omitted));
24. Lobel, supranote 12, at 1119 ("The President has a constitutional obligation to execute international law because it is the law of the land.");
25. Jordan J. Paust, Is the President Bound by the Supreme Law of the Land?-Foreign Affairs and National Security Reexamined, 9 HASTINGS CONST. L.Q. 719, 727 (1982) ("[T] he President of the United States is ... bound by international law, which is part of the supreme law of the land under article VI . . . .").
26. Henkin, supra note 7, at 936.
27. Id. at 935. He explains that "the President can supersede a principle of international law or a treaty by law made under his own authority, in those special circumstances when the President has constitutional authority to make law in the United States."
28. Id.
29. Id. at 936. Specifically, Henkin argues that "acting within his constitutional authority, the President may take actions that have the effect of ending an international obligation of the United States with the result that the obligation is no longer law in the United States."
30. Id. Relatedly, Jonathan Charney has argued that the Executive Branch may violate die law of nations, subject to no judicially enforceable limitations, when it is "participating in the legitimate process of developing customary international law." Jonathan I. Charney, The Power of the Executive Branch of the United States Government to Violate Customary International Law, 80 AM. J. INT'L L. 913, 919 (1985). "Just as the international system requires that the President be able to enter into executive agreements and, apparently, to terminate treaties unilaterally, so must the President have die unilateral power to enter into the international lawmaking process.
31. " Id. at 917.
32. Henkin, supra note 7, at 935.
33. See, e.g., Glennon, Raising, supra note 16, at 325 (arguing that "federal common law invalidates presidential acts in violation of international law until Congress, by statute, supersedes die federal common law rule");
34. Henkin, supra note 7, at 935 (arguing diat the President must "give effect to an act of Congress tfiat is inconsistent widi a preexisting principle of customary law");
35. cf. Lobel, supra note 12, at 1119 ("If congressional deviation from international law is allowed, there may be limited circumstances in which the President may also depart from international law.").
36. Lobel, supra note 12, at 1130-31;
37. Paust, supra note 11, at 316.
38. Henkin, supra note 7, at 935-36.
39. Bradley & Goldsmith, supra note 14, at 844-46.
40. EMMERICH DE VATTEL, THE LAW OF NATIONS *145, *302.
41. Id. at *lxii-lxiii.
42. See generally Bellia & Clark, supra note 1.
43. U.S. CONST art. I, §8, cl. 3.
44. Id. art. I, §8, cl. 4.
45. Id. art. I, §8, cl. 5.
46. Id. art. I, §8, cl. 10. On die implications of this power,
47. see J. Andrew Kent, Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 TEX. L. REV. 843 (2007).
48. U.S. CONST art. I, §8, cl. 11.
49. Id. art. I, §8, cl. 12.
50. Id. art. I, §8, cl. 13.
51. Id. art. I, §8, cl. 15.
52. Id. art. I, §8, cl. 16.
53. Id. art. I, §8, cl. 18. Article I simultaneously restricts the states' ability to conduct their own foreign relations. Section 10 provides that "fn]o State shall enter into any Treaty, Alliance, or Confederation; [or] grant Letters of Marque and Reprisal." Id. art. I, §10, cl. 1. It also prohibits states, without the consent of Congress, from "lay[ing] any Duty of Tonnage, keep[ing] Troops, or Ships of War in time of Peace, entering] into any Agreement or Compact with another State, or with a foreign Power, or engaging] in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
54. Id. art. I, §10, cl. 3.
55. Id. art. II, §1, cl. 1.
56. Id. art. II, §2, cl. 1.
57. Id. art. II, §2, cl. 2.
58. Id.
59. Id. art. II, §3. The power to send and receive ambassadors enabled the political branches, on behalf of the United States, to recognize foreign nations as equal and independent sovereigns under the law of nations. See Bellia & Clark, supra note 1, at 31-32.
60. VATTEL, supra note 25, at *145, *302.
61. Id. at *lxii-lxiii.
62. Bellia & Clark, supra note 1, at 89.
63. 6 U.S. (2 Cranch) 64 (1804).
64. For an earlier example, see Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 29-32 (1801).
65. Federal Nonintercourse Act, ch. 10, 2 Stat. 7 (1800) (expired 1801).
66. See id. §1,2 Stat, at 8.
67. Charming Betsy, 6 U.S. (2 Cranch) at 64-65, 120-21.
68. Id. at 118.
69. Id. at 119 ("If it was intended that any American vessel sold to a neutral should, in die possession of diat neutral, be liable to the commercial disabilities imposed on her while she belonged to citizens of the United States, such extraordinary intent ought to have been plainly expressed." (emphasis omitted))
70. See VATTEL, supra note 25, at *336-37 (recognizing perfect right of neutral nation to engage in neutral trade);
71. see also Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 GEO. L.J. 479, 525-26 (1998) (suggesting that courts should adhere to the Charming Betsy canon to avoid putting "the United States in violation of international law contrary to die wishes of the political branches").
72. 11 U.S. (7 Cranch) 116 (1812).
73. Id. at 117.
74. Id. at 135.
75. Id. at 146.
76. Id. at 145-46.
77. Id. at 146.
78. Id.
79. Id. at 126 (argument of counsel).
80. 13 U.S. (9 Cranch) 388 (1815).
81. Id. at 388-90.
82. Id. at 426.
83. Id. at 427. Like the Court, Vattel described neutral nations to "enjoy perfect liberty to trade" in "goods which have no relation to war .... An attempt to interrupt or put a stop to this trade would be a violation of the rights of neutral nations, a flagrant injury to them." VATTEL, supra note 25, at *336-37 (emphasis omitted).
84. The Nereide, 13 U.S. (9 Cranch) at 422.
85. Id.
86. Id. at 423.
87. Id.
88. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
89. The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 146 (1812).
90. Id.
91. 13 U.S. (9 Cranch) 244 (1815).
92. Id. at 279-80 (argument of counsel).
93. Id. at 287 (Story, J.).
94. The Schooner Exch., 11 U.S. (7 Cranch) at 146.
95. Id.
96. The Nereide, 13 U.S. (9 Cranch) 388, 422 (1815).
97. Id. at 422-23.
98. 175 U.S. 677 (1900).
99. Id. at 686.
100. Id.
101. Id. at 700.
102. See, e.g., Glennon, Raising, supra note 16, at 324 (summarizing commentators' "extensive disagreement as to whether the President may violate international law").
103. See Bellia & Clark, supra note 1, at 78-80.
104. 376 U.S. 398 (1964).
105. Id. at 401.
106. Id. (emphasis added).
107. Id. at 431-32.
108. See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 404 (1990) (stating that the act of state doctrine is best understood as "a consequence of domestic separation of powers").
109. Following Sabbatino, for example, Congress enacted the second Hickenlooper Amendment, which limited the act of state doctrine in cases like Sabbatino. Foreign Assistance Act of 1964 (Hickenlooper Amendment), Pub. L. No. 88-633, §§ 301(d)(4), 78 Stat. 1009, 1013 (codified as amended at 22 U.S.C. §2370(e)(2) (2006)).
110. On remand, the judiciary applied the statute retroactively to defeat Cuba's claim to the proceeds from expropriated sugar. Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967).
111. 12 U.S. (8 Cranch) 110 (1814).
112. Id. at 121-23.
113. Id. at 121-22.
114. Id. at 122.
115. Id. at 129.
116. Id. at 128.
117. Id. at 123.
118. Id. at 128;
119. see also id. ("The rule is, in its nature, flexible. It is subject to infinite modifications. It is not an immutable rule of law, but depends on political considerations which may continually vary.").
120. Id. at 123.
121. Id. at 129.
122. Id. at 123.
123. Id. at 126.
124. Id. at 121-22.
125. Id. at 129. Although Justice Story dissented, he did not challenge the Court's premise that Congress must authorize confiscation of enemy property. Rather, he concluded that Congress's declaration of war in fact included such an authorization. Justice Story inquired "whether congress (for with them rests the sovereignty of the nation as to the right of making war, and declaring its limits and effects) have authorized the seizure of enemies' afloat in our ports." Id. at 145 (Story, J., dissenting). Story concluded that the declaration did authorize it, and that even if it did not do so expressly, the President has "a right to employ all the usual and customary means acknowledged in war, to carry it into effect." Id. Thus, "there being no limitation in the act, it seems to follow that the executive may authorize the capture of all enemies' property, wherever, by the law of nations, it may be lawfully seized." Id.
126. 6 U.S. (2 Cranch) 170 (1804).
127. Id. at 177 (emphasis added).
128. Id.
129. Id. at 171 (emphasis added).
130. Id. (emphasis added).
131. Id. at 178 (emphasis added).
132. Id.
133. Id. at 179.
134. 67 U.S. (2 Black) 635 (1862).
135. Id. at 666.
136. Id. 637-38.
137. Id 665.
138. Id. at 668.
139. See Andrew Kent, The Constitution and the Laws of War During the Civil War, 85 NOTRE DAME L. REV. 1839, 1893-1902 (2010) (discussing the legality of President Lincoln's blockade under the law of nations).
140. See Prize Cases, 67 U.S. (2 Black) at 666-67.
141. Id. at 666.
142. Id.
143. Id. at 668.
144. Id. at 670.
145. Id. at 671.
146. 175 U.S. 677 (1900).
147. Cf. id. at 711-12 (noting that "no act of Congress or order of the Presiden" had expressly abrogated the law of nations and discussing relevant presidential proclamations (emphasis added)).
148. See id. at 701-06.
149. Id. at 700.
150. Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 YALE L.J. 845, 868 (1996)
151. (reviewing LOUIS FISHER, PRESIDENTIAL WAR POWER (1996));
152. see also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941, 946 (2008) (examining "how the political branches have actually considered and treated the legislature's power to regulate the President's 'command of the forces' and the 'conduct of campaigns,' from 1789 to the present day");
153. Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 50-56 (1993) (describing early American accounts of presidential power in foreign affairs and the Supreme Court's recognition in the twentieth century of "some independent law-making authority in foreign affairs").
154. Stromseth, supra note 131, at 868.
155. 299 U.S. 304 (1936).
156. Id. at 320.
157. Id.
158. See, e.g., Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 YALE L. J. 1 (1973).
159. See, e.g., H. Jefferson Powell, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 GEO. WASH. L. REV. 527 (1999) (assessing the overlapping powers of Congress and the President over foreign affairs);
160. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE LJ. 231 (2001) (arguing that the constitutional text allocates foreign affairs powers between Congress and the President). Some commentators maintain that the President also possesses certain implied powers.
161. See, e.g., Jack Goldsmith & John F. Manning, The President's Completion Power, 115 YALE L.J. 2280, 2282 (2006) (arguing that the President has "audiority to prescribe incidental details needed to carry into execution a legislative scheme");
162. Monaghan, supra note 131, at 11 (maintaining that the President possesses a narrow, inherent power "to protect and defend the personnel, property, and instrumentalities of the United States from harm").
163. 343 U.S. 579 (1952).
164. Id. at 636 n.2 (Jackson, J., concurring).
165. Id. at 637.
166. Id.; see Dames & Moore v. Regan, 453 U.S. 654 (1981) (resolving question of whether the President had authority to setde foreign claims on the basis of implied congressional audiorization rather than independent presidential power).
167. Id. at 635 (emphasis added).
168. See, e.g., Patricia L. Bellia, Executive Power in Youngstown 's Shadows, 19 CONST. COM. 87 (2002).
169. 453 U.S. 654 (1981).
170. Id. at 678 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). For a critical evaluation of the Supreme Court's approach to sole executive agreements, see Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573 (2007).
171. Brown v. United States, 12 U.S. (8 Cranch) 110, 123 (1814).
172. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543 (2002);
173. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167 (1996).