Bradley Book Symposium: Customary International Law in the U.S. Legal System and the Perils of an All-or-Nothing Approach

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).]

One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200).

Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that Sabbatino, Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).

Well, of course not, because there isn’t one. Rather than a source for the wholesale incorporation of customary international law, we have the specific provisions of Articles II, III, and VI of the Constitution, the Alien Tort Statute (ATS), the general federal question statute, the statute granting the Supreme Court appellate jurisdiction, etc. Each has its own text and its own history, and the answer to whether customary international law falls within the scope of one provision may be quite different from the answer to whether it falls within the scope of another. The Supreme Court acknowledged this in Sosa v. Alvarez-Machain when it held that federal courts could hear federal common law claims for violations of customary international law under the ATS but said it had “no reason to think that federal-question jurisdiction was extended subject to any comparable congressional assumptions” (p. 154 n. 83, quoting Sosa). Curt also notes the differences in the texts of the relevant constitutional provisions (pp. 139-42), before launching into the story that leads to the “wholesale incorporation” strawman.

Curt does note that some scholars have argued for an “intermediate position” (p. 155), but the book doesn’t engage those positions. It would be interesting to know more, for example, about the status of customary international law under Article II’s provision that the President “shall take Care that the Laws be faithfully executed.” (My views on that question, as well as the status of customary international law under Articles III and VI, are here.) Curt’s chapter on treaties notes that Alexander Hamilton and James Madison agreed in their famous debate about presidential power that treaties were included in the Take Care Clause (p. 55), but they also agreed in that debate that the President was bound by customary international law under the clause. If customary international law were encompassed in the Take Care Clause, then it might not only restrain the executive but also serve as a source of presidential power—as the Supreme Court held in the 1863 Prize Cases—though the Court has cautioned more recently that the Take Care Clause “allows the President to execute the laws, not make them” (p. 24, quoting Medellin v. Texas). Curt’s position, briefly revealed in a footnote in the war powers chapter, is that “Laws” refers only to the Constitution, federal statutes, and treaties (p. 292 n. 49), but that position is not defended.

I pick out the Take Care issue because it has implications for other questions discussed in the book. The precise mix of international law rules and comity in the areas of foreign state immunity and foreign official immunity is uncertain. But as Curt correctly notes, “it is generally understood that customary international law provides governments and officials with some immunity from suit” (p. 227). The International Court of Justice has held that sitting heads of state, heads of government, and foreign ministers are entitled to absolute immunity from the jurisdiction of foreign courts while in office. If the President were constitutionally bound under Take Care Clause by customary international law on head-of-state immunity, then the executive could not criminally prosecute a foreign head of state, the contrary suggestion in the Noriega case notwithstanding (p. 254). Conversely, customary international law’s incorporation in the Take Care Clause might give the President authority to articulate rules of foreign official immunity based on international law that would bind both federal and state courts, a possibility the book notes (pp. 160) but does not explore in detail. Although the chapter on immunity states that the common law of immunity to which the Supreme Court referred in Samantar v. Yousuf “is presumably federal common law” (p. 257), it is vague about the constitutional basis for these rules.

To describe so many of the debates about the role of international law in the U.S. legal system so clearly and concisely is a great achievement. My chief complaint, reflected above, is that I was left wanting more. I guess I will have to wait for the sequel.