International Law in the U.S. Supreme Court: A Presumption of Extraterritoriality?

by Roger Alford

When Bill Dodge, Michael Ramsey and David Sloss approached me to write a chapter for their forthcoming book, I told them that I would be interested in doing so as long as I did not have to rehash the tired contemporary debate about constitutional comparativism. They quickly agreed and I had the good fortune to write a chapter on international law as an interpretative tool in the Supreme Court from 1901 to 1945. I had long been interested in the subject of the presumption against extraterritoriality and had great fun revisiting the landmark cases of American Banana, Sisal Sales, and Alcoa.

As with most writing projects, once one is steeped in research some surprising revelations occur. For me that revelation came when I discovered a strong parallel line of authority that presumed federal law should apply extraterritoriality to effectuate the purpose of federal law. In other words, since at least United States v. Bowman the Supreme Court has held that some statutes must be interpreted to apply abroad because any other interpretation would undermine the essential purpose of the statute. As the Court put it in Bowman, “Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.”

Here’s a brief excerpt of my Chapter 8 addressing the “government purpose” test that presumes the extraterritorial application of U.S. law:

The Bowman Court concluded that “the same rule of interpretation [against extraterritoriality] should not be applied to criminal statutes which are … not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated.”….

Criminal statutes that logically presume extraterritorial application include states punishing (1) a consul for certifying a false invoice; (2) the forging of ship’s papers; (3) the bribing of a U.S. naval officer; (4) the disposal of property captured as prize with the intent to defraud the United States; (5) and the stealing of arms, money, or other property furnished by the United States for military or naval service….

These cases represent early and important limits on the scope of the traditional presumption against extraterritoriality. They suggest that, contrary to the reasoning of American Banana, defining an act as lawful or unlawful need not depend solely on a universal rule of deference to the law of the country where the act was done. Rather one must look to the express or implied will of Congress in light of (1) the government interests at stake; (2) the locus of evils to be avoided through regulation; (3) and the appropriateness of asserting jurisdiction in light of considerations of international comity.

Many of the categories that form the basis for this presumption of extraterritoriality have found support in international law under the protective principle of prescriptive jurisdiction. Section 403(3) of the Restatement on Foreign Relations, that “a state has jurisdiction to prescribe law with respect to … certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.” But international law is silent as to when the presumption against extraterritoriality should apply, and it is useful to consider whether the government purpose test of Bowman should have wider application. The Supreme Court has only cited Bowman one time since 1958, and even that one citation in Hartford Fire was for the general proposition that the “Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected.”

This one avenue of discovery illustrates the value of this project. By systematically analyzing the role of international law in Supreme Court jurisprudence across the centuries, the Sloss, Ramsey, and Dodge book has uncovered dozens of avenues for further inquiry. One could take any chapter from the book and find buried treasure from old Supreme Court cases.

As with most law books by legacy publishers, it is way overpriced at $117, beyond the reach of almost everyone except law firms and law school libraries. Even the Kindle edition is over $100, which can only be justified by fears that Kindle sales will cannibalize hard copy sales.

Nonetheless, the book is a remarkable accomplishment that is a credit to the authors and the editors. I am confident it will become a standard text for analyzing the history of international law in Supreme Court jurisprudence.

International Law in the U.S. Supreme Court: A Response to Professor Golove’s Essay

by Andrew Kent

Thank you to Opinio Juris for having me back. It’s always a great pleasure and honor to guest blog at such a terrific forum.

The volume of essays under review is an impressive and extraordinarily useful collection. I learned something—and often many things—from every essay I read. I was consistently impressed with how the authors discussed controversial and complicated subjects with great balance and sensitivity to opposing points of view.

Parroting the format of Part V of the book, I’ve decided to post something in the nature of an additional “response essay” to David Golove’s fascinating essay on “The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition.”

Like Mike Ramsey (Response Essay in Part V.E.) I find much to admire but also some things to question and debate in Professor Golove’s thought-provoking contribution to this volume. Professor Golove argues that the war-on-terror decisions in Hamdi, Rasul, Hamdan and Boumediene were striking departures from more recent precedent and principles, but were fundamentally consistent with three deeper themes from earlier periods of American constitutional history, what Professor Golove calls the three “basic features of the traditional American Just War Constitution”: (A) the President was constitutionally required to observe the laws of war; (B) and so too Congress; and (C) the judiciary had an active role in policing Executive branch compliance with the laws of war (at pp. 564-65).

In this essay, Professor Golove does not extensively discuss the evidence supporting these three claims. He refers the reader instead to two unpublished manuscripts (at p. 564 n.19). I eagerly await the publication of these pieces. I am sure that, like all of Professor Golove’s work, they will be immensely erudite, well-researched and creative. I have to say, though, that I think it might be difficult to fully defend all three propositions. (B) is the most problematic, in my opinion, followed by (C). Proposition (A) is, in my view, partially but not wholly correct, varying over time and context and by historical actor.

Like Professor Golove, but even more so, I am space constrained and so cannot set out much of the relevant historical evidence. I will just note a few cases relevant to claim (B). Historically, the high point of the power and influence of customary international law in the U.S. legal system was in the Founding and early antebellum periods. Yet even at that time, numerous Court decisions, often authored by Chief Justice Marshall, made clear that Congress had the authority to depart from, or to modify for domestic purposes, rules of the unwritten law of nations, including the laws of war. See, e.g., Thirty Hogsheads of Sugar v. Boyle (1815); The Nereide (1815); The Schooner Adeline (1815); The Schooner Exchange v. McFaddon (1812). To my knowledge, the Supreme Court (in a majority opinion) has never once held or suggested otherwise.

There is much to say about Professor Golove’s claim (C), and Professor Ramsey’s excellent response essay makes a good start. I am content to await the publication of Professor Golove’s two articles before fully joining issue on the historical questions, but for now will just make one comment: Professor Golove’s analogy between judicial supervision of the Executive in prize cases in earlier periods and today’s judicial supervision of the Executive’s war-on-terror detention operations (at pp. 569-71 ) is not entirely persuasive to me because I think other factors must be accounted for. Professor Golove reads the history of U.S. courts supervising Executive prize captures as a story about the judiciary independently and assertively securing the rule of law in an area where Executive mistakes or over-reaching could be expected to frequently infringe private rights. So too is aggressive judicial review needed in the war-on-terror detention context, he contends, because the complexities of the conflict make it quite difficult to accurately identify enemies. I think a different or at least supplemental story can be told about why U.S. courts were so actively involved in prize litigation. Briefly, the reasons are (i) the Constitution commanded or at least contemplated it, in Article III’s admiralty clause; (ii) Congress and the Executive commanded or at least contemplated it, in numerous statutes and proclamations which stated or assumed that federal courts should hear prize cases and determine them according to international law; and (iii) in order to get the economic benefit of seizing enemy prizes, the captor needed title to the vessel or cargo that would be respected worldwide; judicial review and sign-off on the seizure provided this good title. Understood as flowing from these premises—either instead or in addition to Professor Golove’s premises—judicial involvement in prize disputes does not provide any large amount of support for the strikingly aggressive judicial review (called “judicial imperialism” by Prof. Ramsey’s response essay) seen in Boumediene, Hamdan etc., especially when, as in Boumediene, the Court overrides policies set by the President and Congress jointly.

As I said at the outset, the entire collection—and most certainly Professor Golove’s provocative contribution—is of the highest quality and well worth a read. Many thanks to the editors and authors for producing such a terrific piece of work.

International Law in the U.S. Supreme Court

by Ingrid Wuerth

Thank you for the opportunity to comment on International Law in the U.S. Supreme Court, edited by Bill Dodge, Mike Ramsey and David Sloss. Mike has already described the book’s purpose and organizational structure in a post from this morning. My post focuses on some of the book’s overall strengths and perhaps weaknesses.

Edited volumes are hard to do well, and are often little more than a hit or miss set of loosely connected essays. This book, by contrast, is extremely well-edited and the individual contributions are very carefully linked to the book’s overall goals, as well as to other chapters. The editors are everywhere present: collectively they drafted a substantive first and last chapter, and all three also make major contributions through other chapters in the text. The editors’ obvious efforts to keep the other authors “on task” pay off for the reader with a well-organized, thorough doctrinal treatment of international law in the U.S. Supreme Court. It will make an excellent reference volume, especially as each chapter includes cases infrequently discussed in the secondary literature. I also applaud the decisions to focus on cases from the Civil War on, and to include three concluding essays by historians for each of the three historical periods examined in the book.

Some aspects may at least represent missed opportunities. Let me note that what follows takes the book’s central mission on its own terms; that is, I do not question the decision to focus on doctrinal developments in the Supreme Court (as others already have, see Chapter 5 by John Fabian Witt). This extremely distinguished group of authors has, to varying degrees, staked out contemporary doctrinal claims about U.S. courts and various aspects of international law. Not surprisingly, these claims re-emerge in one form or another in some of the historical accounts the authors provide. To focus on the editors (having just heaped praise upon them), for example, an introductory chapter co-authored by David Sloss discusses whether treaties afforded remedies to individuals, a chapter by Mike Ramsey on the period 1901-1945 focuses skillfully on Erie and three ways of understanding customary international law in its wake, and a chapter by Bill Dodge views the Sabbatino case in terms of customary international law as federal common law. Some of this felt a-historical — the ghosts of the Medellin and Sosa future looming over the narrative – and it also left me wanting a broader perspective (even just doctrinally). We might think of Sabbatino as a Cold War case, for example (to pick up on Mary Dudziak’s broader point about this volume made at an ASIL Annual Meeting Panel), or about the rise of the administrative state, increases in executive power, doctrinal developments in international law, the impact of foreign policy on specific cases or doctrinal developments generally. To be sure, these issues and others like them are mentioned at places throughout the book – Roger Alford, Ralf Michael, and Paul Stephan’s contributions come to mind in particular.

One might also quibble with the last section of the book, not with the excellent contributions themselves, but with whether this organization is the best way to handle the most recent cases and to pose questions moving ahead. But there is no doubt that the editors and authors have created an important book that provides an outstanding basis for other scholarship on both the history and future of international law in the U.S. Supreme Court.

International Law in the U.S. Supreme Court: Introduction

by Michael Ramsey

On behalf of myself and my co-editors David Sloss and William Dodge, thanks to Opinio Juris for hosting this book discussion.  As readers of this blog know, the twenty-first century’s first decade was an extraordinarily active one for international law in the Supreme Court.  In the debates about leading cases such as Medellin v. Texas and Sosa v. Alvarez-Machain, we noticed that each side invoked the Court’s historical practices regarding international law in support and accused the other side of radical departures.  Indeed, the rhetoric of the criticisms can hardly be overstated: to some, the Court was abandoning longstanding commitments to international law; to others, the Court was allowing international law to invade domestic law at the expense of traditional notions of national sovereignty.

We also noticed that these competing claims were sometimes difficult to assess because there was no comprehensive account of the Supreme Court’s use of international law throughout its history.  This book, International Law in the U.S. Supreme Court: Continuity and Change (Cambridge Univ. Press 2011) seeks to fill that gap.  To carry out the project, we were fortunate to assemble a distinguished group of contributors with expertise in international law, foreign affairs law and legal history, each of whom contributed one or more original essays to the book.

The book’s organization is broadly chronological, beginning in Part I with an assessment of the Court’s use of international law from the Court’s inception to 1860.  Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861-1900); the first half of the twentieth century through World War II (1901-1945); and the post-war years to the century’s end (1946-2000).  Part V examines the leading post-2000 cases in light of historical practice.  Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II, which seems somewhat under-examined by prior scholarship as compared to the Founding era and the modern period. 

Within the chronological periods, the book further subdivides the Court’s treatment of international law into substantive categories: treaties, direct application of customary international law, and the use of international law in constitutional and statutory interpretation.  For each of the periods before 2000, it also includes a chapter of historical commentary addressed to wider political, legal and social developments.  For the post-2000 period, recognizing that it is more difficult to achieve historical perspective on recent decisions, it features more opinionated and provocative essays designed to present a range of reactions to the leading cases.

A central theme of the book is “continuity and change.”  From its earliest decisions in the 1790s, the Court has used international law to help resolve some of the major controversies on its docket.  But the Court’s approach to international law has changed markedly over time.  In general, our study finds that there was substantial (though not complete) continuity through the nineteenth century, and that from the beginning of the twentieth century forward substantial changes occurred, such that few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago.

While the book provides an account of what changed and when, it does not attempt a systematic account of why those changes occurred.  We hope our account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court did what it did, and to what effect.

We look forward to the discussion.