03 Jun Michael Stokes Paulsen on the Constitution and International Law
Via Larry Solum and the indispensable Legal Theory Blog, I draw your attention to this sure-to-be controversial and provocative new article by Michael Stokes Paulsen, The Constitutional Power to Interpret International Law (Yale Law Journal 2009). Here is the SSRN abstract:
What is the force of international law as a matter of U.S. law: ‘Who determines that force’ This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution’s commands or assignments of power, international law is, precisely to that extent, unconstitutional. Further, the force of treaties (and executive agreements) to which the U.S. is a party is always subject to the constitutional powers of Congress and the President to supersede or override them as a matter of U.S. domestic law.
It follows from the Constitution’s allocation of power exclusively to U.S. constitutional actors that the power to interpret, apply, enforce – or disregard – international law, for the United States, is a U.S. constitutional power not properly subject to external direction and control. The power ‘to say what the law is,’ including the power to determine the content and force of international law for the United States, is a power distributed and shared among the three branches of the U.S. government. It is not a power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution’s allocation of powers in matters of war and foreign affairs has important implications for many contemporary issues the United States’s actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.
I tend to agree with this kind of view, and then carry it still farther to put this into the hands of the political branches and not the courts. But it is yet another signal – along with things like ATS jurisprudence – of just how far American law is, as a complicated community of interpretation, from what much of the rest of the community of international law would understand its rules to be. Regardless of one’s normative views of this, Larry’s judgment is right – a “must read on an important topic.”
(Update: A commenter mentioned that he had trouble getting the download – as with all SSRN stuff, follow the link to the abstract page, go to the top where it says “Download” and go to the download page. Click on an SSRN server in your general vicinity and click it. It should download as a pdf.)
Update 2: To give you an idea of the article more than just the abstract, here is the conclusion:
I conclude, briefly, with the questions with which I began: what is the force of international law, for the United States, and who determines that force and interprets and applies international law for the United States? For all the complexities and intricacies of the details, the summary answer is remarkably straightforward: under the U.S. Constitution, international law is only “law” for the United States when the U.S. Constitution makes it so or empowers U.S. constitutional officials to invoke it in support of their powers. Wherever the Constitution does make it so, such law is always controlled by the (sometimes conflicting) interpretations of the law by U.S. actors and never by the interpretations of international or foreign tribunals. And such international-law-as-U.S.-law is always subordinate to the superior constitutional powers of U.S. constitutional actors; it may be superseded, as a matter of U.S. law, almost at will.
The force of international law, as a body of law, upon the United States is thus largely an illusion. On matters of war, peace, human rights, and torture—some of the most valued matters on which international law speaks—its voice may be silenced by contrary U.S. law or shouted down by the exercise of U.S. constitutional powers that international law has no binding domestic-law power to constraipolicy and politics.
Well that was a quick read — “My thesis in this Essay is a straightforward one and, from the perspective of basic postulates of U.S. constitutional law, should be an obvious one: for the United States, the Constitution is supreme over international law. International law, to the extent it issues determinate commands or obligations in conflict with the U.S. Constitution, is unconstitutional. Where there exists a conflict between the U.S. Constitution’s assignments of rights, powers, and duties, and the obligations of international law, U.S. government officials must, as a matter of legal obligation, side with the Constitution and against international law, because the Constitution, and not international law, is what they have sworn to uphold. As a matter of domestic constitutional law, U.S. law always prevails over inconsistent international law.” Prof. Paulsen’s thesis is pure bunk, and that fact is obvious on formal grounds — it’s a typical right-wing exercise in 1 + 1 = 0, 3, or any other result just as long as it isn’t 2. Needless to say, our local neo-fascist is only too happy to steer the matter to the political branches lest someone actually figure out how dishonest and unlawful it is. Why anyone would… Read more »
Seriously, Gittings needs to be banned from the site. He is a distraction who peddles in invective and ridiculous grandiose statements.
Mr. Gittings, I am so tired of reading your nonsense. You have no clue as to the law or the complexity of legal issues. You embarrass yourself with each posting that you make, but you lack the basic knowledge to recognize how incredilbly ignorant that you are. You take no hints or the lack of response for what they mean. You present no real points worthy of response or debate. There are no Nazis here, no fascists. That you see them only shows your ignorance of the law and history. Anyone who makes such statements as “1+1=2” or “facts are facts” in regard to the law merely shows his colossal ignorance of the law. Go to Daily Kos. They will find your nonsense to be brilliant. Professor Paulsen raises extremely important issues. They should be discussed and debated on their merits. That you fail to understand them shows your ignorance, not his error. I’m sorry if this is ad hominem, but someone has to say the obvious. I have long held the opinion suggested by Ryan. This man distracts rather than adds to the discussion. All he can do is call serious people Nazis and apologists. He can’t even defend his own… Read more »
Ryan,
Is that an argument on the merits?
Do you have even a rudimentary understanding of logic?
And just exactly when did you get appointed the speech commissar of Opinio Juris?
Clue for you:
They can’t ban me – it’s a public forum, I haven’t done anything except tell the truth, and I decline to be banned, especially by disloyal neo-fascists bent on subverting the Constitution and laws of the United States for criminal purposes. You people are the worst enemies this country has.
Just a poor country lawyer,
You’re the one showing your ignorance here — you obviously don’t know me very well, mostly because you haven’t bothered to try. If you’d like to discuss the merits, I’ll be happy to oblige, but your rant is pure BS.
Paulson’s thesis is facially fallacious. The fact that you don’t understand that doesn’t alter the fact that I do.
Now either offer me an argument, or quit wasting my time. I’ll give you this much: if Paulson’s thesis were simply that a treaty cannot enact a de facto constitutional amendment I’d agree with him, though that would be an awfully trivial point to be writing an 80 page article about. However, it quite obvious he means a lot more than that, and he’s simply mistaken to whatever extent he isn’t merely fabricating his premises from his conclusions.
And if you think you can out-argue me, you’re welcome to give it a try.
PS: I know what the lack of response means — it means that the people who criticize me are intellectual cowards who are afraid to put their money where their lying, subversive mouths are.
The fact that Gittings does not even know what the legal term “public forum” connotes demonstrates that he adds nothing useful to the forum. It is ridiculous that we even have to consider how to deal with his anti-intellectualism and demagoguery in every single post at OJ – the new system, while an improvement, still takes too much focus away from the merits of the discussions here. I think Gittings has had far more than his share of opportunities to redeem himself and act like a respectable adult, and his time tugging at the apronstrings of the participants here, desperate for attention, should be over.
Ryan,
BS. You have no idea what I do or don’t understand, and I’ll be happy to pit my intellect against yours just as soon as you find the courage to give it a try.
I’m not anti-intellectual at all — I’m anti-fascist, anti-murder, anti-torture, and anti-LIAR. You right wing creeps aren’t intellectuals, you’re a bunch of con-artists looking for a quick score.
And you can toss all the BS at me you want, but I’m still telling the truth and you’re still a bunch of lying neo-fascists who get off on murdering and torturing people because you have no real understanding at all. A common murderer has more morals than you new-age Nazis do.
Lying fascist murdering torturer that I am, I largely agree with Prof Paulsen’s thesis as summarised, although I will look forward to reading it.
I look most forward to his dealing with cases where, by ratififying a treaty, a country may commit itself absent any intervening action on its behalf to the changing jurisprudence of that treaty. Several recent posts on OJ raise this in the context of IHL treaties, and it has long been an issue in tax treaties.
Well Patrick,
That’s the key to understanding the whole deal here — the competence to adopt and ratify a treaty, and the subsequent status of a duly ratified treaty under the Supremacy Clause.
A third issue that arises in the context of particular issues, war crimes for example, are the effects of US criminal statutes on US officials. It cannot be supposed that 18 USC 2441 was intended to only apply in peace time, or that it was not intended to apply to US officials and service members, or that it regards the Geneva and Hague Conventions as optional or discretionary. The meaning of the text is plain, despite the attempt to nullify Geneva Common Article 3 in the MCA.
I’ll worry about jurisprudence when you can show me some reason to suppose we need to. If you’re really that interested in it, I’d suggest you read the judgment of the Nuremberg Tribunal. That says everything that any of you right-wingers need to know.
Kenneth, While the author’s thesis is tenable to an extent, I disagree with you regarding the role of the courts in interpreting and applying international law. I believe they do have a role to play in upholding the primacy of the legislature in authorizing the deviation from international norms to which the U.S. is subject. By this I mean that powers such as the power to declare war, or to issue letters of marque or reprisal, clearly permit Congress to set national policy in contravention of the general law governing international relations. The well-established later-in-time rule (for those unfamiliar, it requires the courts to apply the later-in-time between a U.S. statute and international norm, including a treaty provision, in irreconcilable conflict) is the manifestation of this general principle. In this vein, I refer you to the Charming Betsy case itself, in which the court narrowly interpreted the hostile disruption of commercial intercourse between the U.S. and France authorized by Congress. It found that the authorization excluded such hostilities against the vessel (purchased from Americans and with American cargo) of an American-born Danish merchant engaged in trade with France (who the Danish consul asserted was truly Danish in spite of his American birth). Though the U.S. naval commander at least reasonably… Read more »
John, thanks – I saw the abstract of the CLR article, but hadn’t read it, but now I will!
I can’t download Paulsen’s article, but I am curious where he thinks treaties fall into this. Can the U.S. not limit presidential war powers by treaty?
Anderson, surely not? You need to posit the question more accurately: Can the U.S. President not limit presidential war powers by treaty?
A: No, the President can abrogate or at the least renounce the treaty, valid for all justiciable purposes of American law.
Or did I really miss sth?
And there is a ‘sidebar’ response to that CLR article here: This response makes three points. First, I quibble with the historical account offered by Professors Bellia and Clark on two minor, yet at least somewhat significant, grounds: The debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; also, the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. Second, I question the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat CIL. Finally, I contend that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se. Their position thus reduces to the largely uncontroversial claim that federal courts may make federal common law to protect these constitutionally-grounded federal interests, and they may sometimes draw the content of federal common law from international law. Reading very quickly, it seems to do a good job… Read more »
I am not so sure Patrick. While this is the subject of my current research and my thoughts are preliminary, I think the author of the B & C response piece conflates different aspects of the B & C article, and potentially misrepresents some of their arguments. I do not read them to give the common law of nations/CIL or non-self-executing treaty any general supremacy over domestic law as this author appears to suggest. Their argument is more targeted than this author appears to recognize, implicitly it is more of a conflict of laws analysis. It is also not necessarily inconsistent with the thesis offered by the author referred to by Kenneth, depending on the respect given separation of powers principles. I am also troubled by this author’s view that the change in the U.S.’s status in the world somehow means that the law of nations is of reduced importance or gives the U.S. any different legal prerogatives in international relations. From a realpolitik or political science perspective, it may be true that CIL is of reduced importance to national policy decisions. From a constitutional rule of law perspective, it is folly to suggest that just because the nation is more likely to get away… Read more »
Thanks John. I haven’t read B&C’s (96page!) article even once as carefully as you probably have several times, but your penultimate paragraph does sound like a fair and very concise summary of it. And I do agree that the stuff about the founders’ attitude to common law seems at best tangential. But, and this is probably only because I haven’t read the paper carefully enough, I do feel that that the response author’s ultimate verdict is quite close to your penultimate paragraph, really, except that I am not sure whether it is really federal common law or constitutional law involved. The response author says: [B&C’s] position thus reduces to the largely uncontroversial claim that federal courts may make federal common law to protect these constitutionally-grounded federal interests, and they may sometimes draw the content of federal common law from international law. And you say, I think, that the Courts ‘discover’ (I agree with this terminology over ‘made’, btw) CIL in determining Constitutional questions of the separation and competence of powers. To the extent that the difference is that you frame the issue in constitutional terms with common law (of any kind) as ancillary, I would agree with your framing. To the extent… Read more »
I think we agree in all essential aspects, Patrick. I thank you for bringing up the response piece, which I had not yet seen. It has some footnoted work I might need to review eventually.
Ahhhh…for the moment at least, OJ comments function as intended…
Prof. Anderson, what was your take on Paulsen’s contention that the President could unilaterally revoke a treaty as an *international* obligation of the United States? I noted that Paulsen was careful not to say that the President could, in revoking a treaty, abrogate certain rights or causes of action created in *domestic* law by a treaty. But it raised the question in my mind. Say a treaty (among its other provisions) created a cause of action for plaintiffs in U.S. courts for environmental harms they suffered. (Further assume that absent the treaty, they would have no such cause of action.) Say the President unilaterally revokes the treaty in full (as an international obligation). Assuming that’s constitutional, the U.S. is clearly no longer bound to the treaty’s terms as an int’l matter. But what about domestically? Can the Pres. unilaterally destroy an individual cause of action, legally instituted through the Article II treaty process? (I think not.) But if there’s no “Treaty,” under what would a federal court’s jurisdiction “arise” pursuant to Article III? My suggested answer is that the treaty, as a domestic matter, becomes part of federal common law, so that the cause of action would still lie — that is, until it was… Read more »
Spear, if the treaty itself, being non-self-executing, created the domestic right, the president’s revocation would also eliminate the right. However, if Congress passed a statute to implement the treaty that also created a domestic right, then the right would still exist because the source of it is no longer the now-revoked treaty but is the statute itself.
Of course, we must remember to account for whether the treaty (and any remedy – though doubtful) represent CIL. If so, the suspension or termination of a treaty, assuming the executive has the authority to do so under the circumstances, only removes one potential source of international law. The effect of CIL would depend on the nature of the rule at issue and require separate analysis.
I. Speir: I am thinking about Paulsen’s assertion on this point, and in certain respects think it the strongest claim in the paper, although maybe not. Sorry I am not yet clear what I’d want to say. Excellent question.
Thanks, guys, for the reference to the Bellia & Clark article and response – very interesting and very helpful. Still digesting the arguments.
In the interest of promoting the argument: I’m finding Jack Rakove’s article “Taking the Prerogative out of the Presidency”, Presidential Studies Q (Vol. 37), to provide the an interesting foundation for a counterargument to some of Paulsen’s claims and the ‘middle way’ approach – not that there is a definitive answer. But if anybody’s ahead of the curve on this, I’d be interested to hear….
Ryan, your comment forces me to be more clear in the hypothetical. I’m envisioning a self-executing treaty (b/c it creates a private right of action), and there is no implementing legislation from Congress. Since the treaty is self-executing, it’s law of the land and, moreover, enforceable in a U.S. court. Then the Pres. revokes it. What happens?
If there were congressional implementing legislation, there wouldn’t be an issue — a cause of action would lie under the statute. But assume for this hypothetical, there is not. It’s a curious problem. Don’t know if it has a parallel in the real world. In the case of Goldwater v. Carter, Pres. Carter unilaterally revoked the Mutual Defense Treaty with Taiwan, and the Supreme Court declined to review this action on non-justiciability grounds. But the MDT was almost certainly a non-self-executing treaty — there were no private rights of action under it (even for Sen. Goldwater), so Pres. Carter’s revocation didn’t have any effect on domestic law.
Has the US ratified any self-executing treaties without including a declaration/reservation to the effect that the treaty provisions are non-self-executing with respect to US domestic law?
…I ask this question because my suspicion is that US practice is to render any elf-executing treaties as non-self-executing. I did some very brief research and stumbled upon this 2000 article by HRW Director Kenneth Roth- http://globalpolicy.igc.org/empire/un/2003/0806charade.htm One relevant passage addresses this issue, although note that this information is from 9 years ago: “After this exercise of stripping human rights treaties of any protections that might add to US law, the government takes out a sort of insurance policy against the possibility that the Justice Department lawyers might have made a mistake. To ensure that some new hidden right is not lurking in parts of the treaty for which no reservation, declaration or understanding was entered, the US government, first [*349] declares that the treaty is “not self-executing,” n7 meaning that it has no force of law without so-called implementing legislation. This step is not necessarily objectionable in itself, since it ensures that new rights are endorsed by both houses of Congress through the traditional legislative process, rather than through the unicameral ratification process, which requires the consent of only the Senate. But then, the government announces that implementing legislation is unnecessary because, according to the Justice Department lawyers, all… Read more »
p.s. That should say “self-executing” not “elf-executing.” I am opposed to the death penalty for anyone, including elves.