Congress’s Constitutional Power to Establish National War Policy in Violation of International Law – A (Belated) Response to Professors Golove & Kent

by John C. Dehn

Please forgive the recent interruption to my guest blogging tenure.  I currently live in New Jersey.  We sought refuge from Hurricane Irene in a cabin in the Adirondacks – sans internet access.  Interesting times.

Earlier this summer, Opinio Juris hosted an excellent discussion of an important new book, International Law in the U.S. Supreme Court, a well-edited collection of essays about the Supreme Court’s approach to international law. Professor David Golove’s contribution asserting that post-9/11 Supreme Court “War on Terror” decisions are consistent with what he called our “Just War constitutional tradition” drew significant attention.  In Professor Golove’s view, both the President and Congress are constitutionally required to comply with at least some international laws of war. Professor Andrew Kent critiqued the essay here, arguing that Golove’s claims, particularly those involving Congress, are inconsistent with Supreme Court precedent recognizing Congress’s power to set national policy in violation of international law.

I agree with Golove’s assertion that the executive branch must generally comply with any applicable international laws of war.  Like Professor Kent, I am quite circumspect of the claim that Congress must as well.  Harlan Cohen responded to Professor Kent’s post, suggesting that Professor Golove and Professor William Dodge (one of the book’s editors) may believe that all nations, including ours, are “absolutely bound” by certain rules of international law, those that the well-known (to the Framers and to academics) and influential Eighteenth Century international law commentator Emmerich de Vattel categorized “voluntary law.”  Professor Golove didn’t express his views on Cohen’s comment in his response to Professor Kent.  The only clue he provided to support his conclusion was this.

“It may be that the Court would have been wary about its own authority to strike down legislation as in conflict with the laws of war, but that says nothing about the “Constitution outside the Courts” and the longstanding understandings in Congress and among leading constitutional authorities about the limits on its constitutional powers over war.”

After reading Professor Golove’s contribution to the book, Professor Ramsey’s response, and Professor Dodge’s related essay, I think there may be confusion regarding the obligatory nature of what Vattel denominated “voluntary law” and its relationship to both the contemporary laws of war and the war powers of Congress.

I believe Congress possesses the constitutional power (in conjunction with the executive, when necessary) to establish national war policy contrary to relevant international law so long as it does not violate the text of the Constitution.  To the extent that Professor Golove’s unpublished research may have uncovered “longstanding understandings in Congress” that it must follow certain international laws of war, I suspect those understandings to be based in morality or wise policy, not necessarily constitutional law. Golove has to date given only scant evidence of what seems an elegant argument in favor of granting constitutional status to any such congressional understandings.

I agree that there are (and were) rules of international law that nations were believed “absolutely bound” to observe.  They included what Vattel denominated the “perfect rights” of nations.  Perfect rights were those “accompanied by the right of compelling those who refuse to fulfill the correspondent obligation” through armed force. However, the absolute “bindingness” of these rules existed only in international law.  Particularly in dualist countries, international law said nothing about whether national lawmakers possessed domestic authority to establish national policy in direct conflict with international law. As the Court said in Brown v. U.S.,

Th[e modern] usage [of civilized nations] is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign, and although it cannot be disregarded by him without obloquy, yet it may be disregarded.” (emphasis added)

This basically says what international lawyers already know: a national policy, even one properly established under domestic law, may permit a violation of international law.   But it cannot excuse that violation from the perspective of international law.  In such cases, the policy is lawful in the domestic (municipal) legal system, but remains a violation of international law.

In my view, the key question is not whether the U.S. has ‘the power but not the right’ (to paraphrase Louis Henkin) to violate international law; it does.  The key question is: which branch(es) of the U.S. government may constitutionally establish national policy contrary to international law?  My research leads me to believe that in most contexts, including war, Congress does.  In some very narrow circumstances it has been (and may still be) the executive alone.  Let me add three reasons for my views to Professor Kent’s response.

First, the bulk of the contemporary international law of war (both jus ad bellum and jus in bello or international humanitarian law (IHL)) consists of customary and conventional constraints on conduct the natural law-based law of nations permitted.  Therefore, contemporary IHL is not properly equated with Vattel’s “voluntary” law, which is law evidenced in or derived from natural law principles, generally observed for its utility, and obligatory on civilized states through their presumed (rather than express or implied) consent.

Vattel identifies three other categories of international law, (1) necessary, (2) customary and (3) conventional.  Only necessary law, which consisted of the direct application of natural law to nations, was immutable or absolute.  Vattel classified the other three types, including voluntary law, as composing the “positive law of nations” because “they proceed from the will of nations.”  It defies logic to say that any species positive law cannot be altered at the will of the same nations that establish it.  It isn’t “absolutely” binding in the strictest sense of that term.  (I gave an example of what seems to me a contemporary alteration of one aspect of Vattel’s voluntary law in this earlier comment thread — partly addressed in Julian’s post yesterday. There are others I would be happy to discuss in the comments if there is interest.)

Second, to the extent that any rules in the contemporary law of war might be properly categorized “voluntary” law, the Constitution expressly assigns Congress the power to derogate from or abrogate such law.  Importantly, this includes the power to infringe the “perfect rights” of other nations.  Nothing in the constitutional text expressly requires Congress to exercise its powers to declare war or grant letters of marque (or reprisal, see below) in a manner consistent with relevant international law.  This is why the Court did not, in its early decisions, review a congressionally established general or partial war for compliance with the law of nations.  In Talbot v. Seeman (1801), Chief Justice Marshall, speaking for the Court, said,

“The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry [into whether France was properly deemed an enemy].” (emphasis added)

The Court took the same approach in the seriatim opinions of Bas v. Tingy (1800), and in many other cases.

Finally, and closely related to the last point, the Court has repeatedly stated its opinion that only the elected branches exercise this nation’s reprisal powers.  The authority to engage in these reciprocal actions necessarily includes the power to infringe rights recognized by Vattel’s voluntary law, and the exclusive judgment over whether such actions were necessary and appropriate in the elected branches.  As the Court stated in The Schooner Exchange v. McFaddon (1812),

“the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been drawn to a length, which forbids a particular [judicial] examination of these points.”

Of course, none of these observations directly addresses Golove’s claim: that Congress believed itself to be limited by the law of nations when exercising its powers, and that this sense of obligation had a constitutional dimension or basis.  There are, quite obviously, many reasons why members of Congress or Congress as a body might have boisterously made such claims.  Chief among them would be to claim the legitimacy of law for proposed or adopted legislation infringing the perfect rights of other nations.  Given the widely accepted origins of the natural law, some might also have felt morally obligated to observe it in spite of having constitutional discretion not to do so.  It will be interesting to see how Golove addresses these possibilities and others in his completed work.  I look forward to reading it.

13 Responses

  1. Response…
    The Founders and Framers were generally of the view that the people are bound by int’l law.  Could the people, who were bound, delegate a power to the feds to violate int’l law?  No. And did they expect that both Congress and the Executive were bound by customary international law?  check out

  2. Response…
    p.s.  you are misreading, for example, Brown.  Of course mere “usage” is not a rule of law.  It is merely long-term practice (missing the element of opinio juris).  Who says that mere usage is a rule of law?  Not the majority in Brown.  Mere usage “is a guide…. It is not an immutable rule of law…. it is not for the consideration of a department [the Exec.] which can pursue only the law”
    Story, in dissent, clearly affirmed that the President is bound by the laws of war.  The majority did not disagree.  The majority focused on whether the legislature exercised a discretion that “is a quesiton rather of policy than of law” — what to do with enemy property when war breaks out.  “Like all questions of policy, it is proper” for the legislature.
    Bas actually contains recognitions that war and its extent and operations are restricted and regulated by the jus belli, forming a part of the law of nations.  Marshall said about the same the next year in Talbot v. Seeman — “the laws of war, so far as they actually apply to our situation, must be noticed.”  What Talbot addressed was what should be done when the enemy violates the law of nations — remonstrance having failed, the U.S. authorized hostilitiesa and “[t]his wa not violating the law of nations,but conformng to it.”
    Every relevant judicial deicion and dictum recognized that the President and all members of the Exec. branch are bound by the laws of war at least up to 2009.

  3. How about this way?  Congress can do the act in violation of international law  but that act is extra-constitutional.  The unwillingness or professed inability of the Supreme Court to take a decision on that extra-constitutional act by Congress on the grounds of political question, state secret etc does not in itself make the act Constitutional but rather makes it non-justiciable. 

    If the Supreme Court is willing to take a decision and that decision concludes that what Congress did was constitutional but in violation of international law, then the Supreme Court is trying to extract the United States from its international obligations through domestic law.  This Supreme Court action is a further extra-constitutional act. 

    I guess people forget the kind of lawlessness countenanced by Congress, the Courts, and the Executive in American history where the answer can not be that what was decided and allowed was constitutional.

    The Supreme Court is only providing finality – even when it is wrong and possibly acting in violation of the international  law obligation that is upon the United States.

    One can even go farther, in a system that is to assure the double security of the rights of the people through our federalism to argue that state law may come in at appropriate margins to bring at least Executive acts compliant with international law obligations.  Granted Congressional acts have Supremacy Clause status, but the states may also seek to challenge whether the act was within Congressional powers including necessary and proper.

    For example, what if Congress passes a law that permits the murder of American citizens and the Supreme Court goes along with it.  Are we to say that such a law that violates human rights norms is Constitutional because Congress passed it and the Supreme Court went along with it? If that is so, then one is saying that the Constitution permits vast lawless spaces. That is to turn the Constitution on its head.  Hardly!


  4. Jordan,

    I also argued your point about Brown’s use of “usage” without opinio juris to Prof. Dehn  back on July 26th.  I think Prof. Dehn’s mistaken understanding may be owing to Marshall’s confusing use of the word “rule” that suggests legal obligation  to many folks.

    Francisco Forrest Martin

  5. Jordan and Francisco,

    I certainly expected to hear from you both given earlier comments and exchanges.  Thanks for responding.

    It seems I may have too loosely drafted something in my post.  When I said that the Court did not “review a congressionally established general or partial war for compliance with the law of nations,” I meant that it did not review Congress’s decision to initiate or authorize hostilities for compliance with international law.  It certainly found, as I argue in my forthcoming Temple article and in other commentary here and elsewhere, that the executive must comply with the laws of war.

    While reasonable minds may certainly differ regarding Brown, I believe that you both read Marshall’s opinion too narrowly, and that Justice Story’s dissent supports my reading of it.  

    Let me first say that my understanding of Marshall’s opinion is supported by his near contemporaneous opinion in The Venus, where he applied a similar rule to the property of an American merchant who had remained in British territory and whose property was seized shortly after the outbreak of the war.

    With respect to Story’s dissent, here is an excerpt from my forthcoming Temple L. Rev. article:

    Story believed that the declaration of war impliedly authorized the President to wage war “against the vessels, goods and effects of the British government and its subjects; and to use the whole land and naval force of the United States to carry the war into effect.”[1] At the same time, he recognized that the Court must determine “whether congress (for with them rests the sovereignty of the nation as to the right of making war, and declaring its limits and effects) have authorized the seizure of enemies’ property.”[2] On that point, Story’s view was that the general declaration of war implicitly vested the President with this power under the laws of war in the absence of congressional indication to the contrary.[3]
    After a review of international authorities, Story did not believe that there existed any doubt regarding the ability to confiscate an enemy national’s property under the circumstances of this case.[4] He therefore concluded that the seizure was impliedly authorized by the declaration of war.[5] Justice Story also noted, however, that the confiscation of debts due to enemy subjects was “so justly deemed odious in modern times, and is so generally discountenanced, that nothing but an express act of congress would satisfy my mind that it ought to be included among the fair objects of warfare.”[6]

    It appears to me that Story believed Marshall had asserted a modern usage or rule similar to the one prohibiting the seizure of debts due enemy nationals.  Note also, though, that Story believed Congress could abrogate that constraint on what was once permissible warfare through express authorization (as Marshall had similarly concluded).

    With regard to the executive branch, Jordan, I largely agree with your assertion that the executive must comply with relevant international law and argue that point in my forthcoming article and elsewhere.  I can think one only one narrow area where the executive was allowed to breach a general rules of international law, but those breaches were permitted by international law under special circumstances.  The interesting aspect of this is that the executive was the sole judge of whether those circumstances existed.  The court did not review the executive’s factual conclusions for compliance with international law.

    Neither of you addressed my point about declarations of war or reprisals.  I would be interested to hear anything you might have to say on the excerpt from The Schooner Exchange

    Ben, I think my earlier posts on judicial review of both war measures and the existence of war addresses some of your concerns, though certainly not all of them.

  6. Prof. Dehn:

    In Brown, Marshall is careful to not equate “modern usage” with “modern law of nations.”   Although there appears to have been a GENERAL customary international legal rule prohibiting confiscation of property owned by an enemy’s nationals at the outbreak of war, this rule (or “guide” as Marshall puts it) did not bind the U.S. vis-a-vis Great Britain under international law itself because the British admiralty courts had rejected this purported customary international legal rule regarding cargo and, consequently, the U.S. (under the reciprocity principle) did not have to observe the rule.  In other words, the rule instantiated by the general practice of not confiscating did not have opinio juris for the U.S. as it related to Great Britain.  Consequently, Marshall stated that Congress could choose to allow confiscation. 

  7. Response…
    John: the extract from yur article is fine, but one cannot rightly conclude that Story stated that confiscation of debts was not allowed under the laws of war or was necessarily “outside the fair objects of warfare.” 
       Yes, he was in disagreement whether the competence that existed under the laws of war to confiscate enemy property could be execised by the President on behalf of the United States absent any limit to that competence imposed by Congress — stating that Congress had authorized a general war (as opposed to what they undoubtedly recalled were limited wars addressed in earlier S.Ct. opinions and which recognized that Congress can set limits re: war in terms of time, place, methods, and persons and things affected.  he recognzed that Congress can set limits but argued that Congress had not done so.  The majority opinion was that only Congress could authorize the seizure of enemy property on behalf of the U.S. under a competence that existed for the U.S. under the laws of war and that the general declaration of war did not consitute such an authorization.  Marshall was one of the Justices, like Paterson, who felt that Congress possessed all of the war powers.
    When Story stated that seizure of enemy debts was so justly deemed odious, so generaly discountenanced, he was not saying that it would not be among the fair objects of warfare — only that Congress should provide more specific guidance.  Story did not seem to disagree that Congress ultimately controlled the war power — just that it provided a general authority to go to war and that the competence of the U.S. under laws of war could be executed by the President given that there was no specific congressional limitation.
    With respect to Marsahll, Story, and so many others in early U.S. history and the famous 1865 opinion of the Att’y Gen., etc., please see my article (free download at the click-on).

  8. Francisco and Jordan,

    As I said, reasonable minds can certainly differ.  I read Brown as equating usage to customary law, and I submit to that this reading is supported by The Venus and, for that matter, Paquete Habana.  There are other reasons for Marshall’s conclusions, including implied Congressional disapproval (from a statute authorizing the President to grant safe passage for the vessels or property of British subjects), and Congress’s constitutional power to make rules for captures, most of which I discuss in my forthcoming article.

    Franscisco, your view that the custom did not apply between the U.S. and Britain is interesting.  I would be more persuaded if Marshall hadn’t expressly said that the nation might wish to institute such seizures as a reprisal, but not yet done so. To me, this indicates that he believed the rule was in place, but may have been broken in response to violations by the adversary.  Marshall said that this custom was “not an immutable rule of law, but depends on political considerations which may continually vary.”  That it was not an “immutable” rule of law does not establish that is was not an applicable customary law.

    Jordan, I quoted Story as saying “that nothing but an express act of congress would satisfy [his] mind that it ought to be included among the fair objects of warfare.”  It seems clear that this “unvieral practice of forbearing to seize and confiscate debts” (this quote is from Marshall’s opinion) had created a customary legal constraint on war that could be breached only by Congress.

    Remember, though, we are talking about whether Congress is contrained by the voluntary law of nations.  Certainly the Court here and in many other cases, including Paquete Habana, indicates that Congress is not constrained by modern usage or custom.   The problem of examining whether the voluntary law is a constraint in this context is that the relevant voluntary law is permissive (permits seizure of debts or property), not restrictive.  Thus, Congress could authorize seizure as permitted by the voluntary law or observe then-modern international practice of not doing so.  This says nothing about whether the voluntary law could constrain Congress’s discretion in the adoption of war measures.  This is why I also noted that other powers of Congress permit the infringement of perfect rights, a voluntary law concept.

  9. Prof. Dehn:

    Thank you for your responses.  A few points . . . .

    1.  I don’t see how The Venus is relevant insofar as whether SCOTUS held that Congress can violate customary international law.

    2.  I also don’t see how The Paquete Habana is relevant.  Its dictum regarding “customs and usages of civilized nations” does not say that Congress can violate customary international law — although I recognize  that some lower federal courts subsequently used the dictum to justify such a position.  However, these later decisions misparaphrased the dictum and overreached. See Garcia-Mir (incorrectly attaching the word “only” to the dictum).  The dictum was not a rule governing conflicts between different legal authorities (e.g., between federal statutes and customary international law) but merely an uncontroversial rule stating that the courts must apply custom in the absence (but not ONLY  in the absence) of other legal authorities.

    3.  SCOTUS has stated in U.S. v. Macintosh that Congress in exercising its war powers authority cannot violate “applicable principles of international law.”  Obviously, congressional authority to make rules of capture relies completely on Congress’ war powers authority.  Therefore, such rules cannot violate principles of international law.  However, perhaps your article — which I look forward to reading — will contain contrary authorities.

    4. I agree with your points about reprisals, but I don’t see how it contradicts my position, viz., that there purportedly was a general customary international legal prohibition against confiscating cargo owned by an enemy’s nationals/subjects at the outbreak of war that was violated by Great Britain and, thereby, allowed the U.S. to not regard the underlying custom of not confiscating such cargo as being legally binding on the U.S. as a matter of customary international law.  U.S. seizures of British cargo as reprisal would, of course, be allowed under international law.  And, as Marshall correctly noted, Congress could lawfully authorize such seizures if it so chose.  

    5. Finally, I think that you may be misunderstanding what Vattel meant by the voluntary law of nations.  The voluntary law of nations, strictly speaking, is not the customary law of nations.  Vattel distinguished the two sources of law.  (Indeed, the reason why pure state practice can acquire a sense of legal obligation is because failing to observe a rule instantiated by a custom sometimes can violate certain voluntary law of nations rules such as the reciprocity principle and the principles prohibitting unjust enrichment.)

    Furthermore, perfect rights (or duties) are merely legally enforceable rights (or duties), according to Vattel.  They are neither absolutely binding nor are they binding only because of international law, as you suggest.  Perfect rights and duties are also legally enforceable as a matter of only municipal law.  I think that your dualist analysis is misplaced here.

  10. Response…
    John: re: mere “usage,” a sentence in The Paquete Habana makes Francisco’s and my point rather well:  “By an ancient usage … gradually ripening into a rule of international law” — i.e., it was not a rule of international law before and was not until such happenened (as we would say today, when general patterns of legal expectation or opinio juris that such was a rule of law occurred, in addition to general practice — “that at the present day, by the general consent of the civilized nations of the world, … it is an established rule of international law….”
    The main point of Fuller in dissent was that such usage had not grown into a rule of law, that usage had been practice based on “the ordinary exercise of discretion,” that “[i]t cannot be maintained ‘that modern usage constitutes a rule” (citing Brown!), that the practice had been exercised “essentially as an act of grace, and not a matter of right,” and was “‘a rule of comity only, and not of legal decision.'”
    Further, there are SO many other quotes, cites, etc. re: the Founders, Framers, early judiciary that Congress is bound by C.I.L. — see my article noted above.

  11. Sorry, late to the discussion here.  I was surprised that I didn’t see some more explicit discussion of how the Define and Punish Clause of the Constitution factors into this analysis.  I know that constitutional language only applies to a subset of international law, but it arguably could serve as a constraint on congressional authority to establish war policies in violation of international law.  Here I’m thinking of the ongoing litigation regarding the jurisdiction of military commissions to try certain offenses, or to try them in certain manners, that may be inconsistent with international law.

  12. Nice playback of the to-and-fro.

    I’ve quoted you and linked to you here.

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