08 Jun All You Ever Wanted to Know About Non-Self-Executing Treaties…
Prof. Martin Flaherty of Fordham was gracious enough to join me for a (short) podcast hosted by the Federalist Society on my book (co-authored with John Yoo) Taming Globalization. Marty takes John and I to task for our analysis of non-self-executing treaties and our lack of analysis of congressional-executive agreements. One of his most salient points is that our book argues for an international agreement-making process that is way too onerous to be practical or to fit within the Framer’s original understanding of the U.S. Constitution. I have some responses: 1) It’s not really that hard since many treaties today are non-self-executing; 2) the Framers envisioned at least some non-self-executing treaties could be made. In any event, it is not a long podcast and Marty’s thoughts on most questions is definitely worth listening to.
Response…
Tommy Jefferson lost the debate among the Framers and it seems that most treaties are self-executing in view of the widely accepted primary test regarding mandatory versus discretionary language (e.g., “shall” ( asi with the prohibition of torture, e.g., waterboarding) versus “may” and language leaving a choice for the political branches).
Today, the vast majority of U.S. international agreements are congressional-executive agreements in any event. Moreover, the Framers, and certainly Tommy, would turn over in their graves if they thoiught that the Pres. could make sole or presidential executive agreements tha operate directly as law of the U.S. impacting rights and duties in the U.S. — but we have Pink and Belmont.