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Article Excerpt
NOTE CONTENTS
INTRODUCTION I. ANXIETY AND THE ARRIVAL OF LIMITS ON THE TREATY POWER A. The Democratic Deficit B. The Federalism Problem C. The Sovereignty Problem D. Separation of Powers and the Judiciary's Role in Enforcing Treaty Rights II. THE CASE FOR EXTRATERRITORIAL ENFORCEMENT OF TREATY RIGHTS A. Congress's and the States' Roles in Regulating Foreign Affairs B. Sovereignty and Parallel Regimes of Fundamental Law C. Separation of Powers and Presidential Authority in Foreign Affairs D. The Extraterritorial Reach of Treaty Law III. THE CASE FOR ENFORCING TREATY RIGHTS SPECIFIC TO ALIENS A. Sovereignty and Nonfundamental Law B. Federalism and Federal Control over Immigration C. Congress's Authority To Regulate the Rights of Aliens D. The Judiciary's Role in Enforcing Alien Rights at Home IV. CREATING A FRAMEWORK FOR ENFORCING TREATY RIGHTS
INTRODUCTION
The Supremacy Clause's declaration that treaties "shall be the supreme Law of the Land" (1) seems to sit uneasily within the structural design of the Constitution. Martin Flaherty has persuasively argued that this provision was designed to give treaties the same status as domestic law, thereby reassuring treaty partners that the young United States took its international obligations seriously. (2) In so doing, however, the Supremacy Clause created two separate paths to federal lawmaking--a two-house statutory and a one-house treaty procedure--governed by very different sets of constitutional rules. When set side by side, the treaty power appears kingly compared to the tightly circumscribed legislative power. The House of Representatives--the most democratic federal body and the only one directly elected at the time of the founding--was cut out of the treaty ratifying process altogether. While the framers crafted Article I to spell out carefully the range of permissible topics for federal statutory legislation, no similar limits were placed on the treaty power, (3) implying that there are no restrictions on it beyond those created by international law. (4) States, meanwhile, were given no treaty-making authority at all. (5) Finally, through a quirk of drafting, the framers even created doubts about whether treaties were relieved from constitutional constraints such as the Bill of Rights. (6) The power to make law through treaty, in other words, was not only one of the most sweeping lawmaking tools placed in the hands of the federal government, but also the one subject to the fewest structural and procedural constraints.
A long line of critics, starting with Thomas Jefferson, have advocated sharp limits on the use of the treaty power out of a belief that automatically incorporating treaty law into domestic law via the Supremacy Clause is inconsistent with the Constitution's general scheme for a federal government of limited powers. (7) To them the treaty power's breadth, even if fully intended by the framers, seems to lie at cross purposes--or, more charitably, oblique angles--to other constitutional values embedded in the structure of the federal system. Because treaties are not approved by the House of Representatives, for example, they have been attacked as an insufficiently democratic way to create domestic law. (8) Many others have accused the treaty power of undermining the value of federalism, if treaties can directly make domestic law on matters otherwise reserved to the states. (9) Treaties can also threaten some understandings of national sovereignty, since they may subject quintessentially "national" decisions to international influence, including the power to define and interpret basic rights. (10) And lastly, critics have argued that allowing treaty law to be incorporated directly into domestic law threatens the separation of powers between the judicial and political branches, by putting the judiciary's inclination to stay out of foreign affairs in tension with its constitutional imperative to declare "what the law is." (11)
These four critiques have formed the basis of an extensive literature on the Supremacy Clause, with legal scholars vigorously debating whether all, some, or none of these values form (or were intended to form) actual constitutional constraints on the exercise of the treaty power. What is curious about this debate, however, is that it has been almost entirely eclipsed by events on the ground, where a wave of political opposition to incorporating treaties directly into national law has come close to nullifying the Supremacy Clause without amending the Constitution's text. This modern resistance to the treaty power has taken several forms. First, in many cases treaties have been replaced by so-called congressional-executive agreements, which are international agreements initiated by the President and then endorsed by simple majorities of both houses of Congress. (12) Second, in the last thirty years the Senate has developed a regular practice of attaching reservations, declarations, and understandings during its ratification of treaties--and human rights treaties in particular--in order to limit their domestic legal effect. (13) These reservations have been used to define treaty-based rights as equivalent to already existing constitutional and statutory rights, to block domestic enforcement of treaty rights by courts, and to preserve the same federal-state allocation of implementation authority that exists for statutory legislation. (14) Third, the judiciary has shown an increasing reluctance to allow treaties to be enforced in court as part of domestic law, often declaring treaties to be non-self-executing--that is, unenforceable--even when the Senate did not express a reservation against its enforcement. (15)
Internationalist legal scholars have tried, to little avail, to address this third point of resistance by using text and history to shore up Supreme Court precedents like Missouri v. Holland, (16) thereby hoping to encourage courts to support a broad reading of the federal treaty power. (17) Arguments addressed solely to courts, however, ignore the most important limits on the exercise of the treaty power today, which are the constraints being imposed by the political branches as they attempt to accommodate certain constitutional values or norms. (18) This act of political self-regulation may in turn be feeding back into the lower courts' reluctance to enforce treaty rights as domestic law, even when the treaty language appears enforceable on its face. (19) Modern practice, in other words, has forged a treaty power that bears little resemblance to the nationalist vision that has been ascribed to the framers. Therefore, it is time for those who support the nationalist vision to engage seriously with the concerns that underlie the current anxiety over the treaty power. (20) If the incorporation of treaty law into domestic law is to be shaped by constitutional values like democracy, sovereignty, federalism, and separation of powers--whether we like it or not--we can see that these values are not implicated equally by all treaties. In particular, the direct application of treaty rights extraterritorially poses little threat to these values. Further, treaties that create legal protections that attach uniquely to noncitizens, such as extradition rights, combatant rights, rights of nonrefoulement, or consular notification rights, also implicate few of these constitutional values while providing additional protections for a discrete minority that is politically disadvantaged by virtue of its disenfranchisement.
This Note proposes a way to accommodate these anxieties without rendering the Supremacy Clause a dead letter. When the Senate or the federal judiciary refuse to incorporate treaty law into domestic law out of a desire to protect constitutional values like federalism, democracy, or sovereignty, they are often administering a political medicine far stronger than the disease they seek to cure. Part I of this Note explores the anxieties that underlie the current popular resistance to the direct domestic application of treaty law, in order to show that these are not so much firm limitations that derive from the Constitution's text, but political constraints that are nonetheless very real and have constitutional resonance. Part II shows how these anxieties would not be implicated by the enforcement of treaty rights outside the territorial bounds of the United States, such as allowing treaty rights to be claimed and enforced by aliens who are subject to the power of the United States abroad. Part III looks at the special issue of treaties that regulate the rights unique to noncitizens and shows that constitutional concerns are misplaced here as well. Finally, Part IV proposes a new framework that both the judiciary and Senate could use to implement treaty law that would create a legal check on the President's exercise of his foreign affairs power while affirming fundamental constitutional values. Treaty rights are by far the most important source of protection from government abuse for those who are subject to government action outside the nation's borders--who may not be able to claim statutory or constitutional rights--and for aliens within the nation's borders, who are shut out of the political process. Therefore, a piecemeal approach to implementing and enforcing treaty rights, while not satisfying to all, could move the debate over treaties away from certain high-stakes constitutional and political questions while providing protection to those most vulnerable to state abuse.
I. ANXIETY AND THE ARRIVAL OF LIMITS ON THE TREATY POWER
Thomas Jefferson's critique of the treaty power has found voice throughout American history, reaching its zenith during Senator John Bricker's lengthy and personal campaign in the 1950s to restrict the treaty power through constitutional amendment. (21) This Part identifies the four recurring "constitutional anxieties" that seem to have motivated this history of resistance to using treaties as a method for creating law. It then traces how these concerns have been ameliorated through the modern practices of the political branches. I argue, contra to many scholars who have championed the Jeffersonian view, that these anxieties are not rooted in actual, textual constitutional constraints. I will show, however, that these claims can have constitutional resonance that explains both their strength and endurance as critiques and why they have so affected the practices of the political branches today.
At root, all of these critiques are preoccupied with the substantive and procedural gap between lawmaking by statute and lawmaking by treaty. These deviations, I will argue, are required by the text, structure, and design of the Constitution. Nonetheless, the procedures that govern statutory lawmaking, the most common and familiar form of federal lawmaking, tend to dominate our collective legal imagination, shaping our expectations of how law is legitimately made in the American system. To the extent that lawmaking through the treaty power deviates from these norms, it is perceived as less constitutionally legitimate, even though these deviations are themselves constitutionally created. The political branches have responded to this legitimacy gap by becoming increasingly cautious about employing the treaty power in a way that transgresses the norms that govern statutory lawmaking. These anxieties, therefore, cannot be said to reflect either purely "political" or "constitutional" considerations. They are political in the sense that it goes beyond mere respect for literal constitutional constraints, but they are constitutional because it derives from beliefs about the legitimacy of lawmaking within the Constitution's structure.
Some may object to the idea of according even this quasi-constitutional status to the interpretations of the political branches. Because the Supreme Court so infrequently weighs in on constitutional questions that implicate foreign affairs and interbranch relations, however--the last major case interpreting the Supremacy Clause is nearly a hundred years old (22)--the consistent practice of the political branches can be a better indicator of the meaning of the Supremacy Clause than looking to pure text or judicial interpretation. (23) Particularly in this realm, drawing a sharp line between the "political" and the "constitutional" is difficult. This is not to say that I necessarily agree with those scholars who have argued that we should set the constitutional interpretations of the political branches on equal par with the interpretations offered by the judicial branch. (24) Rather, I simply note that the political branches follow a number of consistent political practices that have sharply limited the use of the treaty power. These practices appear designed to protect certain "constitutional values," even though such a use of the treaty power would not run afoul of the letter of the Constitution. These political practices, therefore, could be deemed a kind of quasi-constitutional law of the Supremacy Clause.
A. The Democratic Deficit
The first, most obvious critique of the treaty power is that it lacks democratic legitimacy. The treaty power, unlike the legislative power, is lodged in only one house of Congress. The framers' decision to entrust the treaty power to the President, with the advice and consent of two-thirds of the Senate, left the House of Representatives, the most democratic body in the federal system--and the only one that was directly elected at the time of the founding--completely out of the process. This design reflected the lingering strength of the idea of state sovereignty, since the Senate represented primarily the states and not the people. (25) But because the treaty power would almost inevitably be used to regulate matters that were also committed under Article I to the whole of Congress, such as the power to regulate commerce with foreign nations and Indian tribes, lay duties, and define intellectual property rights, (26) the framers virtually ensured that the House would clash repeatedly with the Senate and President as it sought to guard its statutory power against perceived depredations by the Senate and President. (27) Underlying these attacks was an argument that the treaty power was not an appropriately democratic way to create federal law, when Congress possesses concurrent power to legislate under Article I.
The House of Representatives' long-running assault on the treaty power left behind a complex set of interhouse and interbranch rules that limit some uses of the treaty power when Congress possesses concurrent legislative power, establishing a realm of quasi-constitutional practice. The Restatement (Third) of Foreign Relations Law states that the Constitution requires Congress to enact implementing statutes before any treaty that appropriates money, defines crimes, raises revenue, or declares war can take effect. (28) During the height of the Cold War in the 1950s and 1960s, when the United States signed on to a wave of mutual defense and assistance treaties, administration officials frequently invoked this rule to reassure Congress that no treaty could have the effect of automatically bringing the country into a state of war. (29) Despite fairly wide acceptance of this rule among courts and commentators, (30) however, the Constitution's text provides little basis for determining why treaties may "legislate" in some areas where Congress also has authority, but not others. (31) The war power presents that problem acutely; nothing in the Constitution's text differentiates the war power, which can only be exercised by statute, from other Article I, Section 8 powers, such as the power over foreign commerce, that have regularly been exercised through treaty. Accordingly, it is hard to craft a coherent, textually based rule that explains the widely accepted political practice of deferring to Congress's paramount authority to legislate exclusively on some subjects but not others. (32)
The political branches have responded to the treaty power's democratic deficit by enlarging the role of the House of Representatives in approving international agreements. Framework statutes now provide for the participation of both houses of Congress in approving certain international agreements, such as trade agreements. (33) Further, in the last century many international agreements that previously might have been secured through the treaty power are now enacted through congressional-executive agreements, (34) reflecting a growing preference for having both houses participate in certain kinds of lawmaking. This two-house process of congressional-executive agreements is not specified in the Constitution, yet remains uncontroversial today (35) largely because it more closely matches Americans' sense of the democratic accountability of laws than the one-house treaty process created by the framers. (36) The increasing trend toward using statutes and congressional-executive agreements in lieu of treaties, therefore, reflects an extratextual constitutional shift in how Americans understand their democracy and their international commitments.
B. The Federalism Problem
The Constitution divides the legislative power between the states and the federal government, but the treaty power resides only in the federal government. (37) As a result, treaties are not subject to the same federalism limitations as statutory legislation. The Supreme Court affirmed this interpretation of the treaty power more than eighty years ago in the seminal case Missouri v. Holland. (38) This nationalist view of the treaty power, however, has enjoyed its share of detractors over the years, who have expressed anxiety that a nationalist treaty power might create an unacceptable "back door" around the constraints of the Tenth Amendment. As Professor David Golove has demonstrated, this federalist critique of the treaty power has tended to emerge most strongly during eras when treaties threatened to affect issues of great social and political import, such as slavery during the antebellum period, Asian immigrant rights during the late nineteenth century, or racial segregation during the 1950s and 1960s. (39) In our own time, most who criticize the nationalist...
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