Treaties in Constitutional Time

by John Parry

[John Parry is the Associate Dean of Faculty and Edward Brunet Professor of Law at the Lewis & Clark Law School. This is the fourth post in our symposium this week on treaty supremacy.]

David Sloss’s fantastic new book restores order and sanity to the confusion that pervades constitutional doctrine on the status of treaties. The great achievement of this book is its insistence on clear thinking about treaties and their interaction with federalism (supreme law of the land or not?) and separation of powers (who implements a treaty?). Where many writers push these questions together, Sloss distinguishes strongly between federalism questions about treaty supremacy and separation of powers questions about self-execution and treaty implementation. Read this book, and you will never, ever carelessly put those concepts back together.

Having separated these issues, Sloss traces their development from the founding era until just about the present day, and he unearths 8 distinct – and often inconsistent – constitutional doctrines about the status of treaties. Each doctrine represents a different arrangement of constitutional forces that push the status of treaties in one direction or another. Most important for contemporary law, he demonstrates, are two related ideas: the assertion that the intent of the treaty makers, whether or not stated clearly, should control the decision on self-execution, and the claim that a ratified treaty might not be supreme federal law binding on the states, despite the language of the supremacy clause. Neither idea, he makes clear, can claim any historical legitimacy, and neither idea is desirable.

Although Sloss does not hide his doctrinal preferences, his overwhelming goal is to untangle and explain the strands of these doctrines. He deliberately does not push many of the normative claims about treaty doctrine that he has advanced in numerous articles over the past 15 or more years. For example, Sloss is a prominent critic of the claim that the intent of the treaty makers determines whether a treaty is self-executing. The Death of Treaty Supremacy details the origins of the intent theory in a 1920s law review article by Edwin Dickinson that was picked up by state department lawyers to serve the cause of executive discretion, and then was tucked by some of those same lawyers (scarred survivors of the Bricker debates) into the Second Restatement of Foreign Relations Law, apparently under the noses of most observers. Intent survived into the Third Restatement and emerged triumphant in the Supreme Court’s 2008 Medellín decision. Sloss does not conceal his justified dislike of the intent doctrine, and he points out that the one step intent approach collapses two distinct inquiries: (1) determining what the treaty requires of the Unites States (an international law question about obligation), and (2) asking who in the federal government can or should carry out that obligation (a domestic separation of powers question). At the same time, however, Sloss’s commitment to analytical clarity also leads him to develop an argument for the constitutionality of the very same intent doctrine that he sees as a betrayal both of original understanding and longstanding practice.

By and large, in short, Sloss successfully puts his descriptive and analytic goals – clear thinking about treaties and the reasons for and results of doctrinal change – above his normative claims about what the doctrines ought to be. The result is a book that demands and deserves broad attention.

Despite my general agreement with Sloss’s analysis and conclusions, I do not quite agree with his historical narrative, particularly on the significance of Chief Justice Marshall’s 1829 opinion in Foster v. Neilson decision for the development of self-execution doctrine. Most commentators identify Foster as the origin of American self-execution doctrine, with perhaps a brief nod to the Chase and Iredell opinions in the much earlier Ware v. Hylton decision (in which Marshall was involved as an attorney). Sloss devotes many pages to Foster, and he provides what I think is the best modern description of what was going on in that opinion and how to interpret Marshall’s relatively brief analysis.

Yet Sloss’s discussion of Foster comes out of turn. As a participant in the Virginia ratification debates, the Ware v. Hylton litigation, and the 1800 debate over the extradition of Jonathan Robbins, Marshall knew what was at stake in the controversy over the status of treaties. In particular, as Sloss makes clear, republican members of Congress asserted the institutional interest of the House of Representatives in a narrower self-execution doctrine that would preserve its legislative authority and give it the ability to participate in (and perhaps frustrate) treaty implementation.

But Foster did not follow immediately on the heels of these events. Instead, two things happened. First, in 1815-16, Congress debated the status of treaties and its own role in treaty implementation with respect to the post-War of 1812 commercial treaty with Great Britain. In that debate, moderate members of Congress worked out the contours of self-execution doctrine in terms remarkably similar to those that Marshall would later use in Foster. Their views represented a compromise between the hard line federalist and hard line republican positions that characterized earlier debates. They also linked self-execution doctrine to the last in time rule, as a way of preserving congressional power against the necessary effects of self-executing treaties. The opinion in Foster and the Court’s subsequent last-in-time opinions follow these positions. (Contrast the effort of the Third Restatement of Foreign Relations Law to weaken the last in time rule, based on an internationalist suspicion of parochial legislators – or so I would argue.)

Second, in the 1820s, federalist lawyers began to write treatises even as their party disintegrated around them. These treatises, including Chancellor Kent’s, advanced hard line federalist positions about the treaty power and usually mischaracterized the results of the earlier congressional debates. Marshall had been, of course, a federalist, but his opinion in Foster has little or no overlap with the claims of the treatise writers. To the contrary, as I already asserted, his tone was far closer to that of the moderate republicans in the 1815-16 debate. Familiarity with those debates, combined of course with his own long-past experiences, could have steeled Marshall to resist lingering federalist claims.

Putting events in this order highlights the importance of extra-judicial activity to the debate over treaty status. Sloss certainly appreciates the importance of extra-judicial activity, but I think the debate over the constitutional status of treaties that took place outside the courts is more significant than he might allow. In some contrast to Sloss, I would contend that the text and original understanding of the Constitution generated greater ambiguity than certainty about treaty status and implementation. In the founding era, the status of treaties as supreme federal law was clear, but the relative implementing roles of the federal branches was not. Conflicting and ambiguous statements abound in the historical materials and early debates. As a result, government officials across the branches had to work out their respective roles over time. Most of the action on these issues, therefore, has taken place outside the courts: in the halls of Congress, the White House, and the State Department, and it has reflected shifting policy judgments and political calculations. The Supreme Court has tended to ratify the results of those extra-judicial activities (and sometimes has resisted them). But it has never led.

Note, as well, that the constitutional vacuum responsible for generating these ongoing debates has led directly to the critical modern developments that Sloss portrays in his book: the use of changed circumstances (such as the rise of the United States to great power status and the contemporaneous explosion of international human rights discourse) to generate further changes in treaty doctrine and the surprising vulnerability of the doctrine that treaties are supreme federal law binding on the states, which became drawn into these debates when it became politically expedient to do so.

I also wonder about Sloss’s treatment of more recent history. He jumps from the drafting of the Second Restatement of Foreign Relations Law all the way to Medellín v. Texas. Medellín is, of course, a significant case and a critical part of Sloss’s story, for the Supreme Court simultaneously embraced the intent doctrine and undermined the supremacy of treaties, even as it also raised doubts about judicial deference treaty interpretation. Yet other events also deserve mention.

Sloss has little to say about the Third Restatement of Foreign Relations Law, which displays a confusing approach to self execution, in tension with the Second Restatement. Under the most plausible interpretation of the Third Restatement, all treaties are supreme and preemptive, but non-self-executing treaties are not enforceable in federal court, even if they create rights and remedies (which perhaps are enforceable in some other fashion). The Reporters Notes push back even more against the Second Restatement and in favor of self execution, probably representing an internationalist valorization of treaties as superior legally and normatively to the actions of national legislatures (and also accommodating the executive power necessary to international cooperation). What happens to these claims?

In addition, few commentators accept Medellín as the harbinger of a new, stable doctrine of treaties. To the contrary, the decision has been extremely controversial. The Senate responded, as Sloss notes, by making express self execution statements when ratifying certain treaties, and even supporters of the result in Medellín have had to work hard to justify it in ways that are more satisfying and coherent than the Court’s actual analysis. The issues of treaty supremacy and implementation that Medellín failed to settle are playing out now in the drafting of the Fourth Restatement of Foreign Relations Law. I’d like to read Sloss’s thoughts on these unfolding developments. He’s said a little in other venues, and hopefully he will return to the fray in future articles.

Finally, I want to suggest a slightly different frame of analysis for these ongoing debates about treaties. The different approaches to the status of treaties that have emerged over time reflect tensions – sometimes subtle but sometimes not – in the basics of American political theory. How should we balance international obligations with internal political structure, without a clearly correct constitutional approach and faced instead with a set of choices that represent different accommodations of the relevant actors: president, congress, courts, and states? These are foundational questions. Without underlying consensus on those issues, treaty law will never be stable, and the instability of treaty law itself provides insight into those underlying tensions.

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