The President’s Constitutional Authority over International Law: Some Further Thoughts

The excellent posts by Professors Ku, Golove and Sloss address a central constitutional issue in the law-of-war field: which branch of the U.S. government has the authority to decide what the laws of war require. Below are a few thoughts based on my assessment of the text’s original meaning (for what that may be worth).

1. Ultimate authority on the matter seems plainly vested in Congress, under its power to “define and punish” offenses against the law of nations (Article I, Section 8). The 1787 Convention consciously used the word “define” because it thought the law of nations was often too vague to provide a clear rule, and so needed a definitive interpreter; the text unambiguously places that power in Congress. Although the Bush administration seems to contest that power, at least as applied to some aspects of the military, as far as I know it’s never really explained how it gets around the define-and-punish power, and I’m not entirely sure what that argument would even look like. In any event, I’m not aware of any founding-era support for it.

2. Whether the President has constitutional power to violate the law of nations (assuming no statute defining and enforcing it) would seem to depend on the meaning of the take-care clause (Article II, Section 3), which says that the President must take care that the “laws be faithfully executed.” I think this obviously includes treaties, as the supreme law of the land (Article VI), again despite some Bush administration claims. The more difficult question arises from the unwritten “law of nations” – does it also fall under the take care clause? Despite what Professor Golove says, I think this is a very difficult historical question and the founding-era materials don’t have a lot directly on point. I would rest instead on the fact that the founding-era Americans thought the law of nations was part of the “laws” applicable in the United States, and the take care clause says “laws” without qualification, so it should include the law of nations unless there is good historical evidence that it doesn’t (and there isn’t). So I come out in the same place, albeit a bit more tentatively. (But it’s worth noting that this is not the view of modern courts, and isn’t a consensus in constitutional law scholarship).

3. Even if the President must faithfully execute the law of nations, that does not say anything about who decides what the law of nations requires. (Obviously if there is a defining statute, the President must follow the statutory definition, as the President must always follow Congress’ direction when Congress acts within its constitutional powers). Absent a statute, though, it seems that the President necessarily has the authority (as an initial matter) to decide what the law of nations requires of the executive branch – the executive branch could not function otherwise. So I think Professor Ku is surely right in his initial assessment – that the President has constitutional authority to decide how the laws of war apply to terrorists. (I would emphasize, though, that there is a difference between a good-faith interpretation, or re-interpretation, and violation or disregard). So it seems that the President would be constitutionally entitled (though perhaps mistaken in policy) to say, on behalf of the United States, that (for example) he does not see that any binding custom exists with respect to the treatment of international terrorists, either because the nature of terrorism has evolved or because no such custom ever existed. (I agree with Professor Golove that the current administration has not really made such public, good-faith case, but I could imagine it being done).

4. The critical question, then, is whether U.S. courts can override the President’s good-faith interpretations, as Professor Sloss seems to urge. Obviously Congress can override the President; and of course the President’s interpretation may not be persuasive to international actors or domestic commentators, with the accompanying reputational and other costs. But U.S. courts’ authority over the President in this regard is more difficult to pin down. There are evident practical problems with having the courts supervise the President’s conduct of war (which is really what the suggestion amounts to). Even aside from practical problems, though, one may ask where the courts would get their constitutional authority. In Marbury v. Madison, John Marshall declared the courts’ ability to make an independent judgment of the Constitution’s meaning (independent of Congress and, as he later confirmed, independent of the President as well). But Marshall, at least, did not think this same authority extended to the law of nations (or even treaties), and he thought the practice of the Washington administration confirmed his view, as he outlined in his famous speech to Congress of March 7, 1800. There he recounted the Washington administration’s handling of the British ships captured during the 1793 neutrality, and explained that the legal determination (that ships captured in U.S. waters should be restored) was made by the President, with the actual proceedings done through the courts to resolve factual disputes: “Ultimately it was settled,” he said, “that the fact[s] should be investigated in the courts, but the decision was regulated by the principles established in the executive department.” (Papers of John Marshall, Vol. 4, p. 101). Marshall then used this episode to argue that interpretation of the extradition provisions of the 1794 Jay Treaty was “a case for Executive and not judicial decision.” Marshall may have gone a bit far in applying this view to treaties (especially in the particular case), but given Marshall’s views and the lack of contrary founding-era practice (I’m not aware of any founding era-court decision overriding a formal executive determination of international law), it seems doubtful to extend the courts’ Marbury powers to international law. (To be clear, I am not saying that courts lack power to interpret international law; only that they may lack power to interpret the executive’s international law obligations differently from the executive).

I suspect that the core objection to the last conclusion is not anything found in the Constitution’s text or founding-era materials, but a sense that courts are necessary to check the President’s inevitable tendency to interpret international law to serve his own ends. But I think we (especially we lawyers) are often too quick to think the principal check can or should come from the courts. Congress, as I’ve said, has the ultimate authority and can overturn presidential interpretations (as it did in part in the McCain amendment). International opinion and domestic commentary can be important checks (as they have been in the present case), and ultimately the President (or his would-be successor) must justify his policies to the electorate. Marshall’s speech, mentioned above, came in the context of defending the supposed executive overreaching of the Adams administration; Marshall may have had a legal point, but Adams sustained heavily public criticism and shortly afterward lost his bid for re-election.