28 Mar Medellin and Youngstown
[William Dodge is a law professor at UC Hastings]
I’ve not seen anyone comment yet on what I thought was one of the more notable aspects of Chief Justice Roberts’s opinion, its application of Justice Jackson’s Youngstown analysis. The question is how to read congressional silence. Although I am greatly oversimplifying, Jackson seemed to read Congress’s failure to authorize what the President did in Youngstown as implicit disapproval (category 3). In Dames & Moore, by contrast, Justice Rehnquist read Congress’s silence as approval (category 1). Roberts’s opinion in Medellin seems to follow Jackson rather than Rehnquist and to treat silence as implicit disapproval (category 3).
As chance would have it, Rehnquist clerked for Jackson the term that Youngstown was decided and Roberts clerked for Rehnquist clerked the term that Dames & Moore was decided. I’m sure there is a great law review article to be written here (though I am not the one to write it).
What bothers me about that is thinking Congress is silent when the Senate ratifies a treaty.
Could Congress, if it wanted to, pass a law authorizing the President to determine how state courts are to apply state law in cases touching on foreign affairs? And then issue a directive to the state court telling it how to decide a specific case? I would have thought such a law would raise federalism and separation of powers issues itself. That seems like a strange way to execute treaty obligations. I mean, suppose a treaty obligates the United States to criminalize some activity that most states have already criminalized. Rather than passing a criminal statute defining the crime at the federal level, Congress passes a law authorizing the President to order states to prosecute specific suspects, or to order the state court to determine that an offense being prosecuted by state authorities is not unlawful because of the treaty? Constitutional? It seems that the more likely way for Congress to execute the treaty obligation would be to establish a federal requirement and amend the habeas statute to make sure that the case could get into federal court. Sort of like how the habeas statute was amended after the Caroline incident so that agents of foreign states could assert an… Read more »