02 Aug Opinio Juris Symposium: Are Non-Self-Executing Treaties Unconstitutional?
I would like to push the conversation about Mike Ramsey’s new book to a slightly different topic. What does the Constitution’s text tell us about the status of treaties in the domestic U.S. legal system? As many of our readers know, Article VI of the U.S. Constitution makes treaties the “supreme law of the land,” but conventional wisdom has been that the text has not resolved a variety of questions over the proper status of treaties. I think Professor Ramsey successfully defeats this conventional wisdom, but I am not sure he has completely resolved lingering questions about the status of treaties?
For instance, does Article VI mean that all treaties are “self-executing” in the sense that they bind the President and the executive branch and create enforceable judicial remedies enforceable by private actions in U.S. courts? Does Article VI also mean that treaties bind Congress so that Congress cannot pass legislation in violation of an Article II treaty? Does Article VI also tell us whether a treaty can trump the U.S. Constitution?
Staying true to his method, Professor Ramsey finds a textual answer to all of these questions. Article VI’s reference to treaties as “supreme law”, he suggests, should be understood to give treaties the same domestic legal status as federal statutes. For this reason, treaties are self-executing, at least in the same sense as federal statutes are self-executing. Congress can override treaties with subsequent legislation (e.g. the last in time rule). Moreover, treaties that are inconsistent with the Constitution are, like federal statutes, unconstitutional and unenforceable. And the President is bound by treaties, at least as much as he is bound by federal statutes.
All of these answers are consistent with existing doctrine and they provide a wonderfully clear and straightforward textual basis in favor of existing doctrine. But there is one area in which Professor Ramsey has departed somewhat from conventional doctrine.
According to Professor Ramsey, non-self executing treaties that do not create private rights are constitutional, at least to the same extent as federal statutes that do not create private rights are also constitutional. But non-self-executing treaties that purport to make treaties that do not bind the President are unconstitutional.
Here’s where his analysis gets tricky. Treaties that supposedly do not bind the President are unconstitutional. But the result of such a finding is not that such treaties actually do bind the President. Actually, the result is that such treaties are not “law” at all and do not bind anyone, including the President.
This is an elegant, and as far as I am aware, original resolution of the non-self-execution issue. But it is somewhat strange to think that the President and the Senate have created, and continue to create hundreds of unconstitutional treaties and to think that there is no consequence to this rampant constitution-breaking. I think the likely response by courts, though, is to adopt interpretations of treaties in favor of self-execution because they have a duty to interpret laws to avoid finding them unconstitutional.
And I’m not thrilled by this result because I think non-self-executing treaties are functionally attractive tools for foreign policy. Non-self executing treaties give U.S. treatymakers a freer hand when negotiating since they can be confident that they can adjust or limit any ambiguities in treaty language when they implement the treaty. Such treaties also make it easier for the U.S. to achieve foreign policy goals by joining treaties that would otherwise be held up by fears of how such treaties would be interpreted down the road. None of the major international human rights treaties, for instance, would have been ratified without a non-self-executing limitation attached to them. And finally, non-self-execution is more democratic since it brings the House of Representatives into the process. This may not seem necessary, but as treaties seek to regulate more and more areas of law – everything from small arms to health care – I think the House can, and should, be part of this process.
My own view is that the President and Senate are authorized under Article II and Article VI to choose whether or not to make a treaty self-executing and that the courts should defer to this decision. I am attracted by the idea that judicial deference should be no more or less than that given to a federal statute, but I can’t help thinking that this deference should be a bit heavier given the unusual lawmaking origins of treaties in Article II. And I worry that if courts adopt the Ramseyan view that all (or most) such treaties are unconstitutional, the judicial presumption will go quite the other way toward finding such treaties self-executing.