15 Sep If the States Can Repeal Federal Law, Can They Also “Repeal” Treaties?
Georgetown law professor Randy Barnett and Virginia legislator William Howell lay out the case for a new “Repeal Amendment” to the U.S. Constitution in tomorrow’s WSJ. Such an amendment would permit repeal of any federal law if two-thirds of the state legislatures approved resolutions to do so. I don’t know what I think about this proposal, which would quite dramatically restructure the U.S. public lawmaking system. Then again, perhaps we need some dramatic restructuring. In any event, such an amendment will be proposed soon to the Virginia legislature.
One wrinkle that I am not sure the proponents of the Repeal Amendment have thought through: could the states also “repeal” a treaty or executive agreement? The proposed text of the treaty leaves this somewhat ambiguous:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
Under current U.S. doctrine, Congress may “repeal” or, more precisely, nullify the domestic effects of a self-executing treaty. This is a moderately contested doctrine, since the Constitution doesn’t exactly spell out this framework and seems to treat treaties differently from “Laws of the United States.”
The Repeal Amendment’s reference to “law…of the United States” could very well refer only to acts of Congress, but it is not obvious. If this power would include treaties, this would be a potentially serious shift in the foreign policy power of the U.S. and give states a mechanism to, essentially, repeal treaties. I’m not sure this is a bad thing, and it might even be a good thing. But it certainly is something worth trying to clarify before the proposed amendment is submitted.
Julian, at Volokh I forward your question on to Randy. We’ll see if he responds. It’s a very important and sensible question.
He did respond, suggesting that he thinks the amendment’s text, by adopting the language of the Supremacy Clause, resolves the matter (presumably, by excluding treaties).
But: (1) the amendment may “adopt,” but doesn’t precisely track, the language of the Supremacy Clause (“provision of law or regulation of the United States” isn’t the same as “laws of the United States”); (2) assuming it’s self-evident that it excludes treaties, he doesn’t address the issue of congressional-executive agreements or sole executive agreements. He may regard those as facially without legal effect, but if we accept current law, the amendment would — if it applied to them and not to treaties — create some interesting possibilities for NAFTA and the like, as well as biases relating to the choice of instrument going forward.
P.S. I haven’t read the WSJ editorial, but I can only imagine the interesting severance and savings clauses that we’d begin to see if this got anywhere.
But it is important that the states be able to repeal treaties (or at least part of treaties) if they find them objectionable.
Remember that treaties can be classifed as “self-executing” and “non-self-executing”.
Non-self-executing treaties require that Congress also pass enabling legislation to give them force. This enabling legislation could then be repealed by the states, so they have a check there.
That leaves the problem of self-executing treaties. Someone smarter than me will have to find a way for states to repeal those (especially one that has a no-repeal clause).
So how does this differ from the Bricker Amendment effort back in the 50’s? It seems like this is Bricker Amendment on steroids as back then – if memory serves me well – international treaties were the only target. Now the target is federal law also. I do believe some think the US is on the way to a break up a la Soviet Union and all these Subnational Entities will become States and members of the UN. Until then, aren’t we in the “no state can use its internal law to exclude itself from its international obligations” and the question would remain whether state exercise of this amendment would amount to a termination as a matter of international law?
Best,
Ben
It’s similar to the Bricker amendment in the sense that it proceeds in part from a preference for local government; it also has a potential for affecting our international agreements, and to that extent strikes me as a bad idea.
But otherwise the differences overwhelm the similarities. I still haven’t read the editorial, but just looking at the above text, the differences would appear to include that it’s not focused on the international realm and doesn’t seem to result from hostility to international commitments; apparently would not affect the domestic force of self-executing treaties; and as to the international agreements it would affect, still does nothing automatically — but rather vests states with a potential override. Basically, it gives to the states an ability to exercise, under extraordinary circumstances, something like what Congress can do under the last-in-time rule. So I think it has little in common with the Bricker Amendment.
[…] On Opinio Juris Julian Ku asks “If the States Can Repeal Federal Law, Can They Also “Repeal” Treaties?” The language of the Repeal Amendment adopts that of the Supremacy Clause of Article VI, which […]
This loophole should just be closed. The amendment should read:
“Any provision of law, treaty, or regulation of the United States may be repealed by the several states…”