Bradley Book Symposium: War Powers and the President’s Duty to Faithfully Execute International Law

[Michael D. Ramsey is Professor of Law at the University of San Diego School of Law]

I join the other symposium participants in congratulating Curtis Bradley on a thoughtful, insightful and balanced treatment of an important topic.  This post briefly addresses his discussion of international law and war powers in the U.S. legal system (principally, Chapter 10 of the book) while noting some areas of agreement and disagreement.

Bradley’s central message here is that international law plays a role in shaping U.S. war powers, but “[m]uch of the interpretation and enforcement of international law in this area occurs outside the courts, especially within the executive branch.  … [C]ourts do not typically enforce the international laws of war directly against Congress or the president.”  (p. 281).  Nonetheless, “[e]ven when courts are not involved, the U.S. government gives significant attention to the international laws of war, in part because of concerns about reciprocity with respect to the treatment of U.S. military personnel.”  (Id.)

As the book discusses, a principal exception is the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President’s Bush’s military commissions for terrorism suspects violated Common Article III of the Geneva Conventions.  (The Court also made some references to international law in deciding the scope of the President’s war powers in its earlier war-on-terror decision Hamdi v. Rumsfeld).  True, Hamdan did not, strictly speaking, apply international law directly, as the Court invoked a statute requiring commissions to comply with the laws of war.  But as Bradley notes (p. 320), the Court surprisingly disagreed with the executive branch’s interpretation of the Conventions, thus imposing an international-law-based judicial check on presidential warmaking.  In general, though, the book finds Hamdan an outlier, instead emphasizing the extent to which, even in the war on terror, the integration of international law into U.S. warmaking policy has been principally a project of the executive and legislative branches.

I agree with much of what Bradley says, so I’ll focus on a point where I don’t agree.  In my view the book underplays the constitutional and historical case that the President is bound by customary international law within the U.S. legal system, including in the exercise of war powers.

First, the President has the constitutional duty to “take Care that the Laws are faithfully executed.” (Art. II, Sec. 3).  Bradley argues (p. 292 & n.49) that this duty extends only to the Constitution, statutes and treaties – Article VI’s “supreme Law of the Land.”  But the language is not parallel: Article VI invokes “laws made in pursuance” of the Constitution (apparently not including customary international law); Article II says only “laws” without the modifying clause.  In general, we should interpret different language to have different meanings; the most plausible “law[]” not “made in pursuance” of the Constitution but to which the framers might have wanted to bind the President is customary international law.

Second, history provides more support for this view than the book acknowledges.  Hamilton’s 1793 Pacificus essay placed the law of nations within the take-care clause (although in a different context).  Justice Story’s dissent in Brown v. United States (1814) said directly that the President was constitutionally bound by international law.  Marshall’s opinion for the Court in The Nereide (1815) said that U.S. courts would apply the laws of war unless “an act be passed.”  (For citations and further argument, see The Constitution’s Text in Foreign Affairs, pp. 362-76).  Later in the nineteenth century, the executive branch and the Court in The Prize Cases (1863) agreed that international law limited the President’s warmaking powers; and in the (in)famous Curtiss-Wright case (1936), the Court similarly indicated that international law bound the President in external affairs.  These statements were dicta, but they suggest a theme in U.S. law giving the President a constitutional duty to uphold international law.  (For further discussion, see David Golove’s extensive work, including his essay in International Law in the Supreme Court: Continuity and Change, pp. 561-81).

The book relies (p. 283) mostly on The Paquete Habana’s statement that courts will apply international law absent a “controlling … executive act.”  But Paquete Habana is notoriously ambiguous, especially taken with its lesser-known sequel United States v. The Paquete Habana in 1903.  After all, the Court did enforce a customary international  law rule against the executive branch, even though the executive plausibly argued for a different view of international law’s requirements.

My purpose is not to argue that text and history compel a view of the President as constitutionally bound by international law – only to say that the argument is more plausible than the book suggests.  Of course, Bradley is right that modern courts have not held the President to this obligation (largely on the supposed authority of The Paquete Habana).  And even the historical comments and cases mentioned above (and others like them) did not put meaningful judicial checks on executive warmaking.

Nonetheless, I think this matter is more rightly seen as an open judicial question.  In the recent al-Bihani case in the D.C. circuit, which the book mentions (p. 311), a majority of the en banc court pointedly declined to decide the extent to which customary international law limits the President.  Further, the Supreme Court’s Hamdan and Hamdi decisions show some willingness to use international law to supervise presidential warmaking. The D.C. Circuit has four current vacancies, and the Supreme Court may have several in the near future.  Who fills them, and how the arguments are framed, may have significant impact on the extent courts enforce international law in the area of war powers.

I’ll end, though, on a note of agreement with Bradley’s implicit conclusion that interpretation and enforcement of customary international law in wartime should be largely a matter for the political branches.  As the book argues earlier (Ch. 5, pp. 164-166), there are significant elements of discretion and policymaking in the interpretation and application of customary international law.  That is especially true in the international law of war.  And particularly in wartime, the U.S. position will most often be decided in the first instance by the U.S. political branches.  As Bradley’s account (pp. 301-328) of the war on terror shows, the political branches do take international law into account.  It may be useful for courts to note the importance of them doing so, as courts have done historically in decisions such as The Prize Cases.  But it is not at all clear that the interests of either the U.S. or of international law are advanced by having U.S. courts second-guess the political branches on international law’s particular applications and interpretations, especially in matters as sensitive as war powers.  To say that the President may have a constitutional duty is not to say that duty should be judicially enforceable.