14 Sep Judge Roberts and the Treaty Power
Listening to the Roberts hearing is amusing for a few minutes, but only the true Supreme Court geeks can stand it for more than an hour. Luckily, in the age of the internet, we can skip the hearings and simply go straight to the transcript portions that interest us. So here goes: Senator Feinstein of California asked Judge Roberts a potentially important question about whether he accepted the status of treaties as supreme law of the land. Here is the exchange:
FEINSTEIN: Let me turn to something else that Senator Leahy asked a number of questions on, and that’s the Constitution and executive power. I’m looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?
ROBERTS: : Right.
FEINSTEIN: Which gives it the total weight of law. Can a president, then, decide not to follow a treaty?
ROBERTS: : As a general matter, the answer is no. The treaty power, as long as it’s ratified according to the requirements in the Constitution, by two-thirds of the Senate, you’re perfectly correct, it is under the supremacy clause the supreme law of the land. Now, I don’t know if there are particular arguments about executive authority in that area with which I’m not familiar, and I don’t mean to state categorically, but my general understanding is that treaties that are ratified — and of course we have treaties that aren’t ratified and executive agreements that aren’t submitted for ratification and so on — but the treaty that’s ratified by the Senate under the supremacy clause is part of the supreme law of the land.
FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?
ROBERTS: : Yes. Now, there are questions, of course, that arise under those — and have arisen under those — about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated.
But that’s an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.
This seems fairly bland stuff. After all, it is undisputed that treaties are the law of the land (And therefore U.S. law) under the Constitution. But as Roberts surely knows, many treaties are “non-self-executing” under U.S. law meaning that, in most cases, private parties can’t sue in court to enforce those treaties against the government. In fact, he joined the opinion in Hamdan v. Rumsfeld holding that the Geneva Conventions are non-self-executing. And he probably knows that the Convention against Torture was ratified on the condition that it also be treated as non-self executing. So while those treaties are “binding” as a general matter, Roberts probably also believes that they cannot be judicially enforced.
Unfortunately, nothing in his answer to Senator Feinstein makes this complexity about the status of treaties in U.S. law clear. So if he is confirmed, she is probably in for a big surprise somewhere down the road…
Your comments are well taken Julian: it’s very difficult to understand how Roberts could give this answer and sign off on the Hamdan opinion.
Notice that the opinion never once actually mentions the term “self-executing” — what it does is misrepresent the doctrine by citing dicta from the Head Money Cases to the effect that there is a “tradition” that treaties don’t grant rights that are enforcible in court.
That misrepresents both the Head Money Cases and Foster, and it flies in the face of the Supremacy clause, as I explain in detail in my Commentary on Hamdan v. Rumsfeld.
I think many Senators feel that these sorts of hearings can be used to educate the public.
While this discussion is “bland” to you lawyer types, it may not be so to the rest of us. Some folks might be surprised to find out that there are extra-constitutional laws that are the “supreme law of the land”.
In particular, the question “did President Bush follow the Geneva Convention?” becomes a question about the constitution. To your average voter, whether or not the President acted unconstitutionally is more important than whether or not the President broke a promise or committed a misdomeanor, etc.
In general, I think Senator Feinstein asked this question (and questions like it) to help educate the rest of us.
I don’t want to have to go to law school just so I can have a general understanding of the law (especially the constitution).