Self-Execution Beyond Treaties

Just two days ago, in his dissent in Douglas v. Independent Living Center of Southern California, Chief Justice Roberts argued that Medicaid beneficiaries should not be able to pursue injunctive relief under the Supremacy Clause against California state officials alleged to have violated the substantive provisions of the federal Medicaid statute, given that the federal law neither (1) provides a direct cause of action; nor (2) can be indirectly enforced via 42 U.S.C. § 1983. In his words,

to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court’s implied right of action and 42 U.S.C. § 1983 jurisprudence. We have emphasized that “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” This body of law would serve no purpose if a plaintiff could overcome the absence of a statutory right of action simply by invoking a right of action under the Supremacy Clause to the exact same effect.

Although the Chief lost the battle on a technicality in Douglas, it seems safe to say that he’s winning the war. Alexander v. Sandoval made it far more difficult for courts to infer direct causes of action into federal statutes that fail expressly to so provide; Gonzaga University v. Doe (which the Chief himself argued back in his private practice days) made it far more difficult for litigants to indirectly enforce federal statutes against state officers via 42 U.S.C. § 1983 in cases in which the underlying statute wasn’t itself clearly meant to be privately enforced; and the Court’s comparable scaling back of implied constitutional remedies against federal officers under Bivens is no less well-entrenched.

I open with this point because, the more I read International Law at Home: Enforcing Treaties in U.S. Courts, the more convinced I become that we might draw fairly comprehensive (and perhaps alarming) parallels between the Supreme Court’s evolving approach to domestic enforcement of treaty obligations and its contemporary take on the availability of private enforcement of implied federal rights in the cases noted above. After all, I don’t think it’s that much of a stretch to see Medellín’s rather stilted approach to direct enforcement of treaties in largely the same light as the Court’s approach to private enforcement of federal statutory rights in Sandoval. And as with the historical pedigree of treaty enforcement carefully traced by Hathaway, McElroy, and Solow, it wasn’t until fairly recently (the 1970s) that the Supreme Court began to assert more systematic objections to inferred federal remedies.

The analogy holds across the other means of enforcement, as well. Courts considering claims to indirectly enforce treaties often (and sometimes expressly) take approaches modeled on Gonzaga’s approach for statutory claims under § 1983—requiring not just that the treaty provide a right, but also that it clearly have meant to provide a remedy as well. On the flip side, courts have been just as willing to provide for the defensive and interpretive enforcement of federal statutes that aren’t subject to direct enforcement as Hathaway, McElroy, and Solow demonstrate has been true for treaties. Thus, the “presumption of enforcement” (and the erosion thereof) that the authors meticulously document may better be seen as a more general presumption for—and increasingly against—private enforcement of implied federal rights, regardless of their source.

If one finds the analogy compelling, then one may also be in a better position to evaluate the viability of the authors’ three prescriptive suggestions. First, Congress could certainly be clearer about which treaties and treaty provisions are subject to private enforcement, just as Congress could be clearer about the same with respect to statutes. In the latter context, then-Justice Rehnquist sent a shot across the bow 33 years ago in Cannon v. University of Chicago, explaining that, “[n]ot only is it ‘far better’ for Congress to so specify when it intends private litigants to have a cause of action, but for this very reason this Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the Legislative Branch.” By and large, however, Congress hasn’t taken heed.

Second, a clear statement rule would also be a normatively desirable result—requiring the President to be clear as to whether a treaty is self-executing or not. In the statutory rights context, the analogy would be a free-standing statutory requirement that Congress emphasize whether individual provisions are meant to be subject to private enforcement whenever it creates new substantive federal rights. There, again, history is not reassuring. Moreover, there may be fairly compelling reasons to disfavor the requirement of a clear statement in support of private enforceability, as opposed to a clear statement opposing it. To be sure, we might have more faith in a President’s ability to speak clearly than in Congress’s, but that only raises the potential question that Duncan Hollis has raised here previously about resolving conflicts between the President’s understanding of the enforceability of a treaty and the view of the Senate.

Third, the federal government can itself enforce the relevant provisions against violators. Indeed, that was the Obama Administration’s exact argument in an amicus brief filed in the Douglas case described above—that federal enforcement rendered private enforcement unnecessary. But a model that relies on top-down federal enforcement presupposes that the Executive Branch is both willing and able to devote resources to the litigation of these kinds of claims. For the most part, this has not been true in the statutory rights context; perhaps there’s greater reason to be more optimistic when it comes to treaties.

Although the above points may be taken as criticism, I mean them more to highlight the fascinating (and important) questions that the authors’ analysis should prompt. After all, even if the Court has increasingly treated treaty enforcement in pari materia with the enforcement of implied federal rights, that fact does not of itself commend the practice. In contrast, there may be compelling arguments for why it is wholly inappropriate to conflate the two inquiries. There may also be specific reasons why the authors’ prescriptive proposals will fare better in the context of treaty enforcement than implied statutory rights.

Ultimately, in my view, this is the great virtue of International Law at Home. By taking such a careful and holistic view of the evolution of treaty enforcement in U.S. courts, Hathaway, McElroy, and Solow have provided a clearer lens through which to see the relevant patterns of judicial practice, the analogies to other questions concerning judicial enforcement of implied rights and causes of action, and the pressure points for those who would resist the trend embodied by Medellín.