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.