14 Jul The One Rule Everyone Agrees Upon: The Last in Time Rule
Like many of my students, I sometimes find the law’s indeterminacy and disagreement over its content disturbing and frustrating. So it is a relief to return to the very few legal rules things that (almost) everyone agrees with.
As the NYT’s analysis today points out, there is utter and complete consensus among legal scholars that Congress could repeal the domestic effect of the Geneva Conventions via a simple act of legislation. Peter Spiro, Marty Lederman, Scott Silliman, and Derek Jinks are all quoted as being in complete agreement on this point.
In other words, these scholars (all of whom have been critical of the Administration’s military commission policy) agree that Congress could nonetheless endorse and legalize the Administration’s policy through simple legislation via the “last in time rule”, in which a later statute overrides an earlier treaty.
The consensus on this point could matter as the debate in Congress continues. Some in Congress have worried about whether any legislation they pass would further face challenge in court. While there are some constitutional challenges lurking, I think there is almost no chance that even Justice Stevens would question Congress’ ability to override or even to interpret the Geneva Conventions, a treaty of the United States. The choice here is for Congress and Congress alone.
I have a particular interest in this point as I invested way too much time discussing the origins and basis for the “last in time rule” in this Indiana Law Journal piece. While I certainly can’t claim credit for convincing other folks as to the rule’s correctness, it is still gratifying that I have written at least one article with which no one disagrees.
“or even to interpret”? If Congress merely enacted a law disagreeing with the Court’s interpretation of CA3 — e.g., by stating that the conflict with Al Qaeda is a conflict of “international character” — I very much doubt that this Court (or lower courts) would defer to that judgment, any more than it deferred to a similar interpretation by the President in Hamdan. What about on a question that the Court has not yet reached? Imagine a statute declaring that Cold Cell or Waterboarding is not an act of “violence,” an “outrage upon personal dignity,” or cruel treatment. Would the Court defer to that? I doubt it. Which means that if Congress wants to do that which you appear eager to have them do, Julian, it’ll have to specifically authorize conduct that CA3 forbids. (“Specifically” because under Charming Betsy there will be a strong, and reasonable, presumption that Congress does not intend the U.S. to violate Geneva.) And it will also have to write exceptions into the War Crimes Act. That’s not inconceivable, of course; but after yesterday’s remarkable Senate hearing with the JAGS, I hope it is unlikely.
The Geneva Conventions are non-derogable for the duration of hostilities. Further, the crimes have already been committed.
These people are not going to escape responsibility Julian… not if if it tkaes 50 years.
I think Marty makes a great point about the Charming Betsy rule – it seems the necessary complement to the LIT rule in the sense that it keeps an overly eager and short sighted Congress from de facto withdrawing from treaties and agreements that previous Congresses and administrations have worked to construct.
Julian, as there is no unitary Executive, so too is there no unitary Congress. Although Congress could craft language, as you suggest, that endorses and legalizes the Administrations policies, it would not be the end of the issue. And, as I believe Marty pointed out a few weeks ago, it would be extremely politically costly for Congress to propose a withdrawl from the Geneva conventions – the only real way to arrive at the end you (Julian) are seeking.
Aaron, ther’s no unitary executive? I know this term has been thrown around a lot lately (by people who don’t know what it means). There is more than one head of the executive branch? Article II itself spells out that there is a unitary executive, as opposed to the proposals floated at the Founding for a Council of several: “The Executive Power shall be vested in a President of the United States.” Obviously there is no “unitary Congress” – Congress is a plural institution, where no one individual has any power. The one man who is President, however, is vested with all executive power – he is the executive branch, and Congress cannot assign executive power to actors outside his control. That is all that “unitary executive” means.
And Congress cannot “withdraw from the Geneva Conventions” – pulling out of a treaty is the President’s unilateral power as endorsed by SCOTUS in the Goldwater case. Congress could, however, override the legal effect of the treaty by statute, and SCOTUS can do nothing about that whatsoever. That’s why the judiciary was called “the least dangerous branch.”
Looking back at Goldwater, SCOTUS in fact declined to intervene on political question grounds. But check out a list of cases speaking to the lack of the power of courts to get involved in this area: See, e.g., Clark v. Allen, 331 U.S. 503, 514 (1947) (“[T]he question whether a state isin a position to perform its treaty obligations is essentially a political one.”); Terlinden v. Ames,184 U.S. 270, 288 (1902) (“[W]hether power remains in a foreign state to carry out its treatyobligations is in its nature political and not judicial, and the courts ought not to interfere with theconclusions of the political department in that regard.”); Doe v. Braden, 57 U.S. (16 How.) 635,657 (1853) (questions regarding whether the King of Spain had authority to ratify a treaty withthe United States “are political questions, not judicial. They belong exclusively to the politicaldepartment of the government.”); Made in the USA Foundation, 242 F.3d at 1305 (whether NAFTA agreement amounted to a “treaty” requiring Senate ratification is a political question);Earth Island Institute v. Christopher, 6 F.3d 648, 653 (9thCir. 1993) (challenge to statute thatordered “Executive to negotiate and enter into treaties with foreign nations . . . is not one that… Read more »
NomedeDroit,
Splitting hairs are we? You very cleverly determined that I meant the colloquial, bandied about phrase “unitary executive.” (As opposed to the notion that the powers of the executive be vested in one person) Perhaps you haven’t heard of the Unitary Executive Theory? Read a newspaper sometime. But I do agree with you that there is no unitary congress. (err, I think that was MY point).
“Congress could, however, override the legal effect of the treaty by statute, and SCOTUS can do nothing about that whatsoever.” My point was that they wouldn’t, it would be too politically costly. And any legislation that overrides the legal effect of a treaty is for all practical purposes a pull out. (At least I am pretty sure that is how other signatories would see it.)