Bradley Book Symposium: Response to the Commentary on International Law in the U.S. Legal System

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke Law School.]

I want to give my sincere thanks to the eight contributors who commented on my book this week as part of the Opinio Juris online symposium:  David Moore, Jean Galbraith, Julian Ku, Kristina Daugirdas, Bill Dodge, Mark Weisburd, Mike Ramsey, and Ingrid Wuerth.  Each of these contributors offered valuable feedback on aspects of the book, and I am extremely grateful for their insightful observations.

The book covers a wide range of topics concerning the role of international law in the U.S. legal system, including the domestic status of treaties and customary international law, the validity of executive agreements, delegations of authority to international institutions, Alien Tort Statute litigation, sovereign and official immunity, criminal law enforcement, and the U.S. conduct of war.  At one time or another, I have written law review articles relating to most of these topics.  As the contributors to the symposium observed, however, the book is not an effort to re-argue positions that I have advanced in scholarship over the years.  Instead, I have attempted in the book to guide readers through the competing arguments in the relevant debates, while providing a general sense of how the law has evolved and where it stands at the present time.

The book emphasizes considerations of constitutional structure, something that is now fairly common in scholarship relating to international law in the U.S. legal system but was less common when I began teaching and writing in the mid-1990s.  Another theme of the book is that when international law operates in the U.S. legal system, its role is often mediated by domestic laws and institutions.  This does not mean that international law is unimportant in the U.S. legal system, and in fact the book is filled with examples of the significant roles that international law can and does play.  But it does mean that the international law that is applied in the U.S. legal system has a distinctively American gloss.  The book further highlights how the U.S. legal system not only receives international law but also frequently contributes to it, on issues such as treaty reservations and sovereign immunity.

The symposium contributors have addressed a number of specific propositions in the book.  Here are some brief comments on each of their posts:

1.  David Moore contends that the Supreme Court’s decision in Medellin v. Texas need not be read as rejecting all multi-factored approaches to self-execution.  I agree and did not mean to suggest otherwise in the book.  I read Medellin as rejecting only the approach of the dissent, whereby the same treaty provision might be self-executing in some cases but not in others depending on how the factors balanced out.  David also thinks that the modern international law doctrine pursuant to which signing a treaty can generate interim obligations prior to ratification presents constitutional problems for the United States, in light of the U.S. Constitution’s division of the treaty power between the President and the Senate.  In part because I think that issue has limited practical significance, I did not dwell on it in the book, although I have discussed it elsewhere (as has David).  Finally, David suggests that more could be said about the differing views of the implications of the Supremacy Clause for the domestic status of treaties.  I am sure that this is right, although I did highlight some of the varying interpretations of the Clause in the book’s discussion of non-self-execution.

2.  Jean Galbraith, in reference to the Bond v. United States case pending before the Supreme Court, says that she has “little difficulty in concluding that the possession of deadly chemicals by non-state actors is an appropriate matter of mutual concern by non-state actors.”  I certainly agree, but I think there is an important issue in Bond about the extent to which the criminal prosecution in that case is or needs to be related to the matter of mutual concern.  Jean also contends that the applicability of the Supreme Court’s anti-commandeering doctrine to the treaty power is unsettled.  Fair enough:  my point in the book was simply that the structural logic of the anti-commandeering doctrine does not seem limited to Congress’s enumerated powers.  Although a minor quibble, I do think that Jean’s observation that “[w]e have case law suggesting that federalism presents little if any serious bar to the treaty power” is a stronger interpretation of Missouri v. Holland than may be warranted by the text of the decision.

3.  Julian Ku suggests that there are greater delegation concerns associated with allowing an International Criminal Court prosecution of a U.S. citizen than I discuss in the book.  His mild disagreement with me on this point seems entirely reasonable:  I analogize to the unproblematic nature of extradition of U.S. citizens to foreign countries, but he is of course correct that an ICC prosecution is different in some respects from the typical extradition situation.  The novelty of the ICC surely raises some additional questions, although I still believe, as the book suggests, that the United States would not be constitutionally precluded from joining the Rome Statute.

4.  Kristina Daugirdas is concerned that if the orders and decisions of international institutions are treated as non-self-executing in the U.S. legal system (as in fact they typically are), there may be a greater likelihood that the United States will fail to implement the orders or decisions.  This is so, she notes, because compliance in that situation may require congressional action, and Congress might not act.  That seems right, but, as Kristina implicitly recognizes in the rest of her post, there is no reason to assume that maximizing international law compliance is the only value at stake.  Moreover, Kristina’s international law compliance concern would apply to all aspects of the U.S. legal system that have dualistic elements, not just the topic of delegations.  In any event, non-self-execution as I discuss it in the context of delegations is only a presumption, so, as Kristina notes, if there is too much tension between non-self-execution and compliance, Congress and the treaty-makers have various options to reduce the tension.  Those options will have their own tradeoffs, naturally, and Kristina does a nice job of pointing them out.  Fortunately, it does not appear that a non-self-execution approach has created any generalized compliance problems, even if one can think of isolated instances in which there have been difficulties (such as in connection with the ICJ’s Avena decision).

5.  Bill Dodge says that the proposition that customary international law is automatically federal law on a wholesale level, a proposition that I have criticized in law review articles, lacks support but is also a “strawman” and that the debate should instead be about the retail incorporation of customary international law into federal law.  Regardless of how one characterizes the wholesale incorporation view, I agree with Bill about where the debate should proceed.  Indeed, I made my own effort to focus on the retail issues in an article that I published in 2007 with Jack Goldsmith and David Moore.  As I made clear there, there will likely be some federal common law doctrines relating to foreign affairs that will be informed, at least in part, by customary international law.  To take a current example, the emerging post-Samantar common law of foreign official immunity seems to be informed by a mix of Executive Branch positions, congressional policy (such as in the Torture Victim Protection Act and the Foreign Sovereign Immunities Act), international law materials, and functional considerations.  As someone who has long taught the domestic Federal Courts course, I can say that this sort of analysis seems much closer to how federal common law has traditionally been conceived than the old “modern position” view about the automatic incorporation of customary international law into federal law.  Perhaps the Supreme Court’s upcoming decision in Kiobel will provide additional guidance relating to this issue.

6.  As Mark Weisburd points out, there are a variety of uncertainties about how to identify rules of customary international law, such as the extent to which treaties should serve as evidence of such rules.  Mark contends that these uncertainties are relevant to debates over the domestic status of customary international law, and I agree.  I discuss this point briefly at the end of my chapter on customary international law.  (I have also explored the uncertainties surrounding customary international law in other writings, including in a 2010 article with Mitu Gulati.)  I also agree with Mark that the Supreme Court in Sosa seemed to demand that closer attention be paid to this issue, although I am not sure that the lower courts have heeded the call.

7.  Mike Ramsey argues that there is some historical support for the proposition that the President’s constitutional obligation to take care that the “Laws” are faithfully executed includes an obligation to comply with customary international law, including the customary international laws of war.  My book does not particularly focus on that historical question.  Instead, it simply notes that it is unclear whether the Take Care Clause was originally understood as encompassing customary international law, and it cites to work by Mike and others that have explored the issue, as well as my own work suggesting that the word “Laws” may have been a shorthand reference to the three types of supreme federal law listed in the Supremacy Clause.  Rather than taking a position on the various historical materials (which, as Mike notes, are ambiguous), my war powers chapter is centered around modern understandings, and I do not think Mike and I disagree much on that score.  As I emphasize in the book, the most likely way that the modern international laws of war will play a role in limiting the President in the context of litigation will be through its codification in statutes and its influence on statutory interpretation.  That role can be quite significant, as the Supreme Court’s decision in Hamdan illustrates.  But, as I also note in the book, it is important not to limit one’s focus to the litigation context, since the Executive Branch often internalizes and complies with international law even when judicial review is unlikely, and that is certainly true in the context of war powers.  Moreover, it is true regardless of one’s view of the original understanding of the Take Care Clause.

8.  Ingrid Wuerth is also interested, like Mike, in the history of war powers, with respect to the development of both domestic law and international law.  As she notes, a thorough treatment of that history would probably require a very different book.  By focusing on contemporary understandings of war powers, I was self-consciously trying to avoid a “history light” treatment of the subject, with a little bit of old prize law here and a dollop of old military commissions law there.  I do, however, cite to some of the excellent historical work in the field (including Ingrid’s work), so that interested readers can explore that history if they like.  (I have also written about aspects of the history myself, including in a 2005 law review article with Jack Goldsmith relating to the “war on terror.”)  Ingrid also makes a more general point about the relationship between U.S. law and international law that goes beyond the war powers chapter.  Throughout the book, I emphasize dynamic interactions between international law and the U.S. legal system, with influences running in both directions.  Ingrid argues that these interactions are further affected by the internal dialogue within the U.S. legal system, such as disagreements or power struggles between Congress, the Executive Branch, and the courts.  It is a good point, and readers will certainly observe numerous examples of that internal dialogue throughout the book.

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Thanks again to each of the contributors for commenting on the book.  As we all await the Supreme Court’s decision in Kiobel and look forward to the argument next Term in the Bond case, I am reminded of how lucky I am to be teaching and writing in such a vibrant field of law.  I am luckier still to be part of a collegial community of scholars, as evidenced by the generous and constructive postings in this symposium.