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Print This PageMute Swans, Non-Abrogation, and Charming Betsy
The D.C. Circuit rendered an interesting decision in The Fund for Animals, Inc. v. Kempthorne on the interpretation of a federal statute regulating mute swans, a non-native species of migratory birds. At issue is whether the statute and relevant treaties prohibit the hunting and killing of mute swans. The State of Maryland wishes to reduce the population of mute swans because they threaten the Chesapeake Bay ecosystem. A division of the Humane Society opposes this practice.
The key issue is whether a 2004 statute should be read consistent with earlier treaties. The court concluded that the statute was not ambiguous as it explicitly applied only to migratory bird species that are native to the United States or its territories. Applying the last-in-time rule, the court concluded that the 2004 statute must be given force notwithstanding earlier treaties that may or may not have protected the mute swan.
Two issues are of interest. First, Congress passed the 2004 statute to overturn an earlier D.C. Circuit decision. That decision held that the relevant treaties undisputably included the mute swans. In passing the 2004 statute, Congress excluded non-native migratory birds and also included a “sense of Congress” provision that the exclusion of non-native species is consistent with the intent and language of the relevant treaties. The court in Kempthorne did not address what role should be given to the sense of Congress provision, finding that that provision does not alter the plain text of the statute’s other provisions, which clearly and unambiguously exclude mute swans from protection.
Second, the court considered the statutory construction that ambiguous statutes should not be construed to abrogate treaties. The court rightly ignored that canon, finding that it only applies to ambiguous statutes. Judge Kavanaugh concurred in the decision and added an interesting twist. He suggested that the canon should not apply in cases involving non-self-executing treaties. Here is what Kavanaugh suggested:
The canon against interpreting ambiguous statutes to abrogate treaties applies with respect to self-executing treaties, which have the force of American law. The canon is quite similar to the familiar doctrine against implied repeal of statutes–under which courts will not interpret an ambiguous statute to repeal a prior statute. There is little authority squarely analyzing whether those interpretive principles should extend to non-self-executing treaties, which have no force as a matter of domestic law. Courts have reason to be cautious about taking that step, however. When the Legislative and Executive Branches have chosen not to incorporate certain provisions of a non-self-executing treaty into domestic law, we must assume that they acted intentionally. Given such a deliberate decision by the Legislative and Executive Branches, basic principles of judicial restraint counsel courts to refrain from bringing the non-self-executing treaty into domestic law through the back door (by using the treaty to resolve questions of American law). In other words, because non-self-executing treaties have no legal status in American courts, there seems to be little justification for a court to put a thumb on the scale in favor of a non-self-executing treaty when interpreting a statute. Doing so would not reflect the appropriate judicial deference to the Legislative and Executive Branches in determining if, when, and how to incorporate treaty obligations into domestic law.
This canon, of course, is a variation on the Charming Betsy doctrine. To the extent that the doctrines are distinct, Kavanaugh’s concurrence makes perfect sense to me. We should be especially cautious reading an ambiguous federal statute to be inconsistent with another binding federal obligation, such as a self-executing treaty. But to the extent the canon is simply a stricter version of the Charming Betsy doctrine, his concurrence poses real problems. The Charming Betsy doctrine is not simply a rule about reconciling two binding federal laws. It also is a doctrine that promotes separation of powers. Whenever possible, courts will construe statutes to be consistent with international law so as to avoid interpretations that will give rise to international discord. That is, the substantive reach of an ambiguous statute must be construed in light of the implications that an international law violation would have for the executive branch.
In the end, the court undoubtedly reached the right result. The statute was clear, unambiguous, and excluded non-native species of migratory birds. And the parties were in agreement that mute swans are non-native. Regardless of how one might interpret the ambiguous international law obligation, the later-in-time statute must be given appropriate effect.
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The Kavanaugh concurrence — which Garland and Rogers obviously thought did not belong in the majority opinion, even though the opinion was assigned to Kavanaugh — is premised on the false, or misleading, notion that “non-self-executing treaties . . . have no force as a matter of domestic law.”
The phrase “non-self-executing” is so notoriously ambiguous, and covers so many different notions, that it has reached the point of virtual meaninglessness, IMHO. That is to say, the label is singularly unhelpful as a descriptive matter, even about Senate intent. See Carlos Vazquez’s terrific article.
Whether or not it needs additional statutory enactments in order to implement it full, and whether or not it is in any other respect “non-self-executing,” a treaty such as the Migratory Bird treaty is the supreme (domestic) law of the land, with all the “force” that entails — namely, that the Executive and Legislative branches are constitutionally required to execute it, and abide by it, until it is superseded or terminated.
Moreover, the treaty uncontrovertibly establishes international obligations, and the premise of the canon Kavanaugh would ignore is that Congress would not blithely enact laws that place the U.S. in violation of its treaty obligations — and that therefore statutes presumptively should be construed not to do so. That premise is valid regardless of whether the treaty is in any way “non-self-executing.” Therefore, the canon should have whatever force it ordinarily does.
As for the merits: The case does raise a conundrum. What we have is this:
1. The court concludes that the treaty requires protection of the mute swan.
2. Congress disagrees — it thinks the treaty does not cover the mute swan.
3. But Congress gives every indication that it wishes that the U.S. abide by the treaty — there’s no sign that Congress thinks that allowing mute-swan killings is more important than ensuring treaty compliance.
4. Congress enacts a law clearly allowing mute swans to be killed, thinking that such killing will not result in a treaty breach.
5. So as the DC Circuit receives the case, I agree that it’s impossible to “construe” the statute to cover mute swans.
But that doesn’t resolve the question fo whether killing mute swans is legal, because at that point the court has (i) a conflict between statute and treaty; and (ii) every indication that the Congress that enacted the statute wanted the U.S. to honor its treaty obligations. Of course the last-in-time rule makes sense if Congress intended the statute to supersede the treaty. But that’s not the case here. So why should the last-in-time rule apply here? (I’m not saying it shouldn’t — only that it’s not sufficient merely to invoke the last-in-time rule, which is premised on a set of assumptions about legislative intent that appear to be inapposite here.)
Of course, the court could eliminate the treaty/statute conflict by deferring to Congress’s construction of the treaty, even though that construction would specifically overturn the court’s own interpretation. But the court does not show any inclination to such deference.
at 1:56 pm EST Marty Lederman
I should clarify one thing about my last post: To the extent the question is whether the killing of the mute swan is a crime, the traditional view (which I have no reason to question) is that in a conflict between statute and treaty, the statute controls. Thus, even if the treaty requires Congress to make the killing of the swan a crime, no criminal culpability can attach until Congress thereby complies with that treaty obligation.
But this case arises not in a criminal context, but in the context of a request by plaintiffs that the Interior Secretary list the mute swan as “protected.” “The complaint sought a court order that would, among other things, direct the Service ‘to notify the State of Maryland … that Mute Swans may not be killed’ without a permit from the Service.” As to the question of whether that injunction should issue, there appears to be a conflict (i.e., a lack of complete overlap) between what the treaty requires and what the statute requires. Even if the court were to have approved such an injunction, however, presumably violations of the Secretary’s regulation could not be punished criminally unless Congress enacted a statute providing for such penalties.
at 2:31 pm EST Marty Lederman
Marty,
Although I agree with you that the term “non self-executing” is often used carelessly and inconsistently, the fact remains, as I suspect you know, that the longstanding position of the Executive Branch (one clearly expressed by OLC in the Clinton Administration) is that non self-executing treaties are indeed without domestic legal effect. You may disagree with that view (I myself have my doubts about it), but it’s not nearly so self-evidently false as your comment suggests.
As for you main point, what we seem to have here are two, possibly conflicting, propositions: (1) Congress did not want mute swans to be covered by the statute implementing the treaty; (2) Congress did not think it was cutting back on the treaty in so doing. The proper congressional intent question therefore is, had Congress been informed that (2) is wrong, would it elect to withdraw protection for the mute swan or, instead, would it elect to preserve the treaty obligation. Given that Congress expressed its desire to exempt the swan in the form of binding, substantive statutory language, while expressing its desire to preserve the treaty merely in the form of a non-binding “sense of Congress” provision, don’t we have a pretty good clue that, if push came to shove, Congress would have chosen (1) over (2)? That, it seems to me, is effectively what the D.C. Circuit held. And that seems correct.
at 12:12 am EST Madisonian
Madisonian:
1. As far as I know, the idea that the political branches are not “domestically bound” by some treaties denominated “non-self-executing” was first adopted by the Executive branch during the Reagan and/or Bush 41 Administrations (although I could certainly be wrong about that — I haven’t studied the history closely). I’m not aware of an example where the Clinton Administration took that view, although, again, I’m hardly familiar with every case where it might have come up. To clarify: Of course it is the case (and the Clinton Administration said so) that certain treaties do not establish binding rules of conduct (e.g., criminal sanctions) for private parties without further statutory or regulatory action. But the question in this case is whether the treaty imposes an obligation on the Executive branch itself (and, if so, whether the statute eliminates that obligation). Whether or not it requires legislation in order to fully implement it (e.g., to impose criminal sanctions), the Migratory Bird Treaty remains the supreme law of the land, and the President has a constitutional obligation to take care to faithfully execute it — at least to the extent he can do so without congressional input, and unless a subsequent statute has limited the steps the President can take.
2. On the merits — on whether a subsequent statute has limited the steps the President can take — you’re definitely onto something, although I would put it slightly differently.
If and when it became obvious to Congress as a matter of international law that the treaty required protection of the mute swan — say, if every one of our treaty partners insisted it were so — do we really have good reason to believe that when “push came to shove” Congress would still exempt the mute swan? I’m not sure that’s so, nor that the statutory language itself is a reliable guide to the “What would Congress have done?” question.
Having said that, however, I thank you for focusing on the actual statutory language, which I should have read more carefully before. The way is section 703 is structured is that subsection (a) prohibits the killing of birds “included in the terms of the conventions,” and subsection (b) then provides that “[t]his subchapter” — including the prohibition on killing treaty-covered birds — “applies only to migratory bird species that are native to the United States or its territories.” As a formal matter, then, the statute expressly limits the protection of treaty-covered birds to only those native to the U.S. I remain unconvinced that this reflects an “actual” intent of Congress to have the statute trump the treaty (or, more accurately, fail to satisfy the treaty) — but nevertheless, subsection (b) fairly clearly does by terms exempt some birds covered by the treaty from its prohibitory effect. And it would be odd, in that case, to assume the Secretary retains the authority to prohibit the killing by regulation, after Congress has specifically exempted it. So I tend to agree that the panel got it right — not because of, but regardless of, “actual” legislative intent.
at 6:05 am EST Marty Lederman
Marty:
1. You are correct that the notion that NSE treaties are not domestically binding originated in the Reagan/Bush I era, but it was an idea that the Clinton Administration embraced as well. And it didn’t just apply to treaties that constitutionally require implementing legislation (those contemplating criminal sanctions or seeking to raise revenue, for example), but it extended to treaties (such as the ICCPR) to which the Senate had attached express non self-execution declarations.
2. You make an excellent point that what’s really going on here is not that Congress has abrogated the treaty, but instead that it has decided not to implement the treaty domestically as broadly as its text suggests it might apply. It still may be, of course, that the treaty imposes an international law obligation to extend domestic legal protection to all covered birds, so — insofar as the D.C. Circuit’s original interpretation of the treaty’s scope is right — the new statute may put us in default of that obligation. But perhaps what we have is a situation where the norms of American judicial practice, in which interpretation has become increasing textualist, clash with the norms of the international process, in which treaty interepretation is often less a matter of plain meaning than of the party’s intentions, expectations, and practice. So, maybe the best way to square the circle is to say that the D.C. Circuit offered a textual account of the treaty’s meaning that the political branches were free (within certain limits) to displace in light of diplomatic expectations and practices that cast different light on the treaty’s text and that are less within the institutional competence of the courts to consider. Indeed, this seems the best explanation for the D.C. Circuit’s decision to decide the original case (Hill v. Norton ) on the basis of Chevron step II rather than Chevron step I. Doing so may have been meant to preserve the very kind of executive and legislative flexibility of which Congress and the President subsequently availed themselves. On this account, the entire episode seems a healthy example of how the three branches ought to cooperate in exercising the Nation’s treaty and foreign affairs powers.
at 11:46 am EST Madisonian
Madisonian: Thanks for the thoughtful responses. Where did the Clinton Administration adopt the view that the ICCPR is not “domestically binding,” in the sense that the Executive branch need not comply with it until a statute is enacted?
at 2:13 pm EST Marty Lederman