[John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law]
In a recent
article posted to SSRN, and introduced by Duncan
here, Professors Sarah Cleveland and Bill Dodge (“the authors”) have done us all a great service in unearthing the history of the Offenses Clause and its inclusion of U.S. treaty violations. Although I was originally suspect of their claim that the Offenses Clause empowers Congress to punish
all U.S. treaty violations, as was obvious in my comments to Duncan’s post, I ultimately found myself convinced of this aspect of their thesis.
The persuasive evidence they marshaled to support this broad claim, however, caused me to question the rather uncertain limitation that they later placed on it: that conduct being punished pursuant to the Offenses Clause “must itself be condemned in some manner under international law.” (p. 3, all bare page references are to draft article) Further to this point, the authors posit that the Offenses Clause allows Congress to punish “when: (1) a treaty operates directly to prohibit the conduct; (2) a treaty expressly mandates that states punish the conduct; (3) a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment; [or] (4) a treaty authorizes punishment under international law, even if it does not require it. In all such cases, however, it must be international law that condemns the relevant conduct, at least in general terms….” (p. 53).
The intent behind these proposed limitations is laudable: to circumscribe what might otherwise be construed as virtually limitless congressional authority to regulate domestic matters potentially implicating U.S. treaty obligations. Much of the evidence the authors offer in support of the broader claim seems to potentially undermine these limitations, that is, depending upon exactly what they intended to exclude. (I, for one, would welcome the authors to provide examples of treaty provisions
excluded by their proposed limitations. In establishing their broader thesis the authors cited even congressional reliance upon what appear to be hortatory provisions of the U.N. Charter. See p. 34).
Throughout the article, the authors rely on founding era and other evidence supporting a purposeful reading of the Offenses Clause. To summarize: (1) the Offenses Clause reaches treaty infractions because treaties, even bilateral treaties, become part of the law of nations; and, (2) the Offenses Clause was enacted so that Congress may ensure national compliance with the law of nations, including U.S. treaty obligations. They present an abundance of pre- and post-constitutional evidence to support this broad thesis. And they recognize that the law of nations applies not only to a state acting in its corporate capacity but also to its members acting individually. Thus, the act of a single person may, in the proper context, place a nation in violation of its international obligations. In such circumstances, it would seem, the Offenses Clause allows regulation of any such act.
Indeed, the authors’ evidence strongly suggests that a relevant provision of international law need not “address” if this means to some
affirmative extent, even generally (unless
exceptionally generally), the precise conduct Congress is regulating pursuant to the Offenses Clause. Any conduct
capable of violating a treaty obligation in a proper context is susceptible of regulation. To say that the law of nations includes treaties is to say that
every act that
results in a treaty violation is “condemned” by the law of nations. Thus, it seems redundant for the authors to suggest, as a limitation, that “it must be international law that condemns the relevant conduct, at least in general terms.” And it seems internally inconsistent to require that “a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment.” Violation of a general treaty provision may occur in myriad ways not mentioned or even contemplated at the time the relevant treaty was drafted and adopted.
