Dodge on Sosa

This paper explores the role of customary international law in the U.S. legal system after the Supreme Court’s decision in Sosa v. Alvarez-Machain. After discussing Sosa’s impact both on alien tort litigation and on the debate over whether customary international law is federal common law, I apply Sosa’s methodology to some of the open questions concerning the place of customary international law in our constitutional scheme. With respect to Article II’s “Take Care” Clause, I argue that the original understanding was that customary international law bound the President and that modern arguments for abandoning that understanding are not convincing. With respect to Article III, I argue that customary international law was originally understood to be part of the “Laws of the United States” for purposes of Article III arising – under jurisdiction, and that there are good reasons to adhere to that position today. And with respect to the Supremacy Clause of Article VI, I argue that customary international law should today bind the states, subject to congressional override, even though this was probably not the original understanding.