19 Sep Medellin: The Senate Strikes Back
We’ve spent a lot of time here at Opinio Juris on the implications of the Supreme Court’s Medellin decision. Very little of that discussion, however, has considered the decision’s impact on the Senate’s role in U.S. treaty-making. That may be because the Court itself spent so little time on the Senate. It did recognize that the intent of the Senate, together with the Executive, could factor into giving a treaty self-executing status. But, for the most part, the decision focused more on how treaty text would determine a treaty’s self- or non-self-executing status, and, more importantly, how non-self-executing (NSE) treaties could only be made judicially enforceable by Congress as a whole, not via an Executive memo. Certainly, in doing so, the Court clarified some important questions about treaties in U.S. law (i.e., dispensing with the multi-factored test for self-execution favored by Justice Breyer in dissent and several lower courts; distinguishing self-execution questions from those involving private rights of action). But, the Court also left open significant questions about treaties in U.S. law; i.e., how exactly courts should decide when a treaty is self-executing; and whether a NSE treaty is simply not justiciable, or if it lacks the force of domestic law entirely (which in the latter case might mean the President has no “take care” duties with respect to NSE treaties).
It turns out, however, that the Senate may have strong views of its own on these questions that do not coincide completely with the Court’s pronouncements. In the recent SFRC reports recommending Senate advice and consent to a slew of treaties, the SFRC has included “declarations” of self-execution, accompanied by an interesting explanation of the SFRC’s view on where treaties fit within the U.S. legal order. Here’s what the SFRC had to say with respect to the 49 treaties included in the package of agreements involving the EU and its member states on extradition and mutual legal assistance:
In every resolution of advice and consent, the committee has included a proposed declaration that states that each treaty is self-executing. This declaration is consistent with statements made in the Letters of Submittal from the Secretary of State to the President on each of these instruments and with the historical practice of the committee in approving extradition treaties. Such a statement, while generally included in the documents associated with treaties submitted to the Senate by the executive branch and in committee reports, has not generally been included in Resolutions of advice and consent. The committee, however, proposes making such a declaration in the Resolution of advice and consent in light of the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 (2008), which has highlighted the utility of a clear statement regarding the self-executing nature of treaty provisions. The committee believes it is of great importance that the United States complies with the treaty obligations it undertakes. In accordance with the Constitution, all treaties-whether self-executing or not-are the supreme law of the land, and the President shall take care that they be faithfully executed. In general, the committee does not recommend that the Senate give advice and consent to treaties unless it is satisfied that the United States will be able to implement them, either through implementing legislation, the exercise of relevant constitutional authorities, or through the direct application of the treaty itself in U.S. law. While situations may arise that were not contemplated when the treaty was concluded and ratified that raise questions about the authority of the United States to comply, the committee expects that such cases will be rare. Accordingly, in the committee’s view, a strong presumption should exist against the conclusion in any particular case that the United States lacks the necessary authority in U.S. law to implement obligations it has assumed under treaties that have received the advice and consent of the Senate.
Contrast that with the SFRC’s statements about the Protocol to the London Dumping Convention:
This second proposed declaration states that the Protocol is not self-executing. The Senate has rarely included statements regarding the self-executing nature of treaties in resolutions of advice and consent, but in light of the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 (2008), the committee has determined that a clear statement in the resolution is warranted.
The SFRC’s views are remarkable in several respects. On the one hand, the SFRC seems to accept the Supreme Court’s preference for clear statements of the treaty-makers’ intent as to the treaty’s self- or non-self-executing status (whereas previously, I believe the SFRC and the Executive often assumed a treaty was self-executing unless they as the treaty-makers expressed a contrary intent). Thus, the inclusion of declarations of self-execution and non-self-execution mark a new Senate practice. And it may actually prove helpful going forward if it means that the Senate (and by extension the Executive) think through and express views on the self-executing status of every U.S. treaty before the United States becomes bound by it.
On the other hand, the SFRC appears far less conciliatory with respect to the Medellin Court’s sweeping statements that NSE treaties lack the force of domestic law entirely. Rather, the SFRC (and assuming the Senate as a whole agrees, the Senate itself) suggest that all treaties are the “supreme Law of the Land.” As such, the Senate seems to either (a) be reading Medellin more narrowly to suggest NSE only means a treaty is not justiciable; or (b) contesting the Court’s constitutional interpretation head-on.
Finally, I was struck by the SFRC’s public reminder of the actual political branch practice, i.e., that the United States does not join treaties–whether self-executing or NSE–until the United States is in a position as a matter of U.S. law to comply with that treaty. Indeed, the SFRC suggests that there should be a presumption of treaty compliance, i.e., that the United States whether via the Constitution, legislation, or the treaty itself, has the domestic legal authority to comply with those treaties it joins. “New” interpretations of the treaty requiring different domestic authority ala the ICJ’s take on the VCCR are the exception rather than the norm. Unfortunately, courts have not traditionaly recognized the significance of this presumption and its implications for judicial review. Rather than finding a treaty is NSE and then ignoring it as they so often do, courts should ask what domestic legal authorities the Executive and the Senate understood existed to ensure compliance with the NSE treaty when the United States concluded it. That authority might come from new implementing legislation, but just as often it will rest on some pre-existing legislation, the Constitution, or Executive authority. Where the laws satisfying the treaty pre-dated it, courts can (and should) still implement the treaty indirectly–i.e., applying the Charming Betsy canon to read the laws on which U.S. treaty compliance rested consistent with the treaty itself.
With the Senate’s entry into the fray, it’s going to be interesting to see what the lower courts do going forward. Will they pay attention to the treaty-makers’ stated intent regarding the self-executing or NSE status of specific treaties? I bet they will since I’m not sure how far courts will get with a textual approach alone. But what legal effect they give such treaties remains more open to question (i.e., will they agree with the Senate that NSE treaties are still domestic law, or will they rely on broader language in Medellin denying them such status?). And what will courts do, if anything, with the Senate’s recent pronouncements when considering pre-existing treaties? Such a lack of clarity leads me to suspect that we may not have heard the last word on Medellin from the Senate or the political branches more generally.
It’s surprising first of all how the U.S. Supreme Court made such a decision in Medellin. Be that as it may, it’s a welcome change to see the Senate finally taking it upon itself to make the position in better amity to international law and UN or ICJ measures, than what the Supreme Court thought it fit. It was actually preposterous that the Supreme Court would suggest an obiter such as the use of veto power as a last resort, obviating the need to implement the ICJ Avena judgment in case US does not wish to. In this context, therefore, it’s heartening to see the Senate clarifying that there exists a strong presumption against conclusions that the Medellin court arrived at. In fact, I think there must be a strong presumption in favour of a treaty being self-executing, and only if a contrary intent of the Senate appears, should such a treaty be non-enforceable.
Doesn’t the Senate already possess the power to make treaties law without these declarations, simply by enacting legislation to execute the treaties?
It’s unclear to me which result the SFRC would have preferred in the Medellin case: that the ICJ Avena decision is the Law of the Land and should have been enforced without the President’s intervention; or that the ICJ Avena decision is not the Law of the Land enforceable directly in court but that the President has the authority to enforce it if he so desires (by more or less ordering the state court to abide by it). Either result would have been OK with Medellin, but the President argued only for the latter. To me, this makes a huge difference.
“To say what the law is?” In so much as the SFRC statements of self execution reach forward with new treaty obligations, they seemingly may function as statements of intent–going forward. Although the statements of self execution are said to be fashioned as a matter of “utility,” one wonders if the practical effect, through course of performance/dealing is that in order for a treaty to be self executing, such a statement must now be included in a treaty–going forward: i.e., One may, at this point say that “when the Senate wanted to make a treaty self executing they knew how.”
To some extent, this process mirrors the post-Kardon dismantling of an implied private right of action under 10b-5 espoused by the Court in Cort v. Ash & Cannon v. University of Chicago. In the latter case, the decision noted that ” the Court has been especially reluctant to imply causes of action under statutes that create duties on the part of persons for the benefit of the public at large.” In as much as Medellin is a case about a presumption, that presumption is now in favor of NSE by decision of the Court, and now arguably, by action of the SFRC through the inclusion of clear statements of self execution in subsequent treaties. Much like the disfavoring of implied private causes of action in statutes ala Cort & Cannon, one imagines that going forward, in the absence of clear statements to the contrary, Treaties are NSE– despite suggestions of the SFRC to the contrary.
As the SFRC’s suggestion’s to the contrary are seemingly based upon constitutional interpretation, one wonders if they haven’t run headlong into Marshall’s dictum– with the SFRC having said, or suggested, “what the law is.”
The Court has prior upheld Congressional power through subsequent appropriation rider to clarify the scope and approve of an administrative agency’s actions in Robertson v. Seattle Audobon Society, with the Court unanimously holding that when Congress directed that the agencies’ plans were adequate under the statutes relied upon by challengers (there was a case pending appeal before the 9th Circuit), Congress had in effect modified the existing provisions.
But to the extent that the SFRC (and perhaps later the Senate in totem) seeks to define the scope of a treaty retroactively as regards effect as domestic law and the duties of the executive “to take care,” one begins to wonder about the separation of powers, and, as it regards the implementation of a treaty as domestic law, Chadha. Which is to say, simply, after the Court has spoken “to say what the law is,” does the Senate have the power, by itself, “to modify the existing provisions” of a treaty to give it presumptive domestic effect? The answer must be no, given the lack of the executive’s involvement, though the question becomes more interesting if the Senate view is formed as part of a later overarching treaty obligation to the world at large which has executive (obama?) approval: i.e., a treaty which defines the status of treaties with said other countries as presumptively “self executing?” But to the extent that one recognizes the distinction between self-executing and non-self executing treaties as a matter of law, i.e., Foster v. Neilson (1829), if particular treaties such as that in issue in Medellin have been determined by the Court to be NSE, (and thus not a matter of judicially cognizable domestic law) doesn’t a unilateral senate proclamation or senate/executive action then circumvent the power of the House of Representatives to be a part of the implementation of domestic law? The well established “last in time” ability to override treaty through statute necessarily involves the House. Which is to say, in as much as either the Senate or the Senate in conjunction with the Executive would seek to alter the understanding of the scope of a pre-existing treaty as it regards implementation of that treaty as domestic law , in a manner contrary to the decision of the Court, do they not run afoul of Marbury, Chadha, Whitney & Breard?