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COPYRIGHT 2006 Harvard Society for Law and Public Policy, Inc.
INTRODUCTION
Presidents have long had an uneasy relationship with international law. If it is true that most states follow most international law most of the time, that probably goes for Presidents, too. Whether Presidents follow international law out of a belief that they, and the United States, must comply with it, or whether they follow international law because much of it simply describes general regularities in state conduct, remains a debated question. (1) Presidents, however, have stretched or violated international law at significant moments in American history where important national security and foreign policy goals were at stake. Recently, international law has served as a political rallying point against the anti-terrorism policies of the Bush administration regarding the use of force, detention, interrogation, and military trial.
Academic critics of the Bush administration make a broad argument: violations of international rules are not only illegal as a matter of international law, but also violate the Constitution. (2) Repeating claims made against the Reagan administration, these scholars assert that the Constitution includes international law in the Laws of the Land under Article VI of the Supremacy Clause. (3) According to this argument, Article II's requirement that the President enforce the law includes the enforcement of international law. "There can be little doubt," Professor Louis Henkin has argued, "that the President has the duty, as well as the authority, to take care that international law, as part of the law of the United States, is faithfully executed." (4) Altogether there are three possible forms of this view. (5) On one account, international law is binding on the President unless he is exercising a statutory authority; he has no independent constitutional authority to violate international law. In the second form, international law is binding on the President unless he is exercising his own constitutional authority; a delegation of power from Congress cannot authorize a violation of constitutional law. Third, some claim that the President cannot violate certain forms of international law regardless of his domestic authority. (6) One corollary of asserting that international law constitutes federal law under the Supremacy Clause is that federal courts should be able to enjoin the President from violating it in properly brought cases.
The academic criticism of presidential violations of international law is not descriptive of judicial practice, but instead is normative in design. The leading Supreme Court case on the point, The Paquete Habana, states that "[i]nternational law is part of our law," but that "the customs and usages of civilized nations" will be given effect only if "there is no treaty, and no controlling executive or legislative act or judicial decision" to the contrary. (7) While supporters of international law as a restraint on presidential power take comfort from the first part of The Paquete Habana's holding, the Court also clearly held that the President could override customary international law. (8) It appears that no federal court of appeals has ever held that customary international law limits presidential decisions. (9) The only district court to reach such a conclusion was affirmed, but the court of appeals did not address the customary international law holding. (10) Much attention has focused on the applicability of customary international law in domestic law through the Alien Tort Statute ("ATS"). The ATS is not directly relevant here, however, because it represents international law that has been incorporated by an explicit congressional act, rather than customary international law which limits the President by its own force. (11) So far, courts have found that sovereign immunity precludes ATS suits against the United States government and, presumably, the President. (12)
Surprisingly, little academic literature critically assesses the contention that the President is bound by customary international law. (13) Sustained academic attention is long overdue, because such a conclusion would have revolutionary implications for the President's exercise of his constitutional powers, and perhaps significant limitations on the war on terrorism. This Article advances the position that the Constitution does not require the President to obey international law. There is no compelling reason in the constitutional text, structure, or the history of its ratification to read the President's authority as chief executive and commander-in-chief as circumscribed by international law. There are some statements during the early Republic that suggest some Framers believed, after the Constitution's adoption, that federal law included international law, but it appears that the significance of this history has been over-interpreted. Practice, when more completely read, seems to stand for the opposite proposition: that the Constitution does not forbid Presidents from taking action under their constitutional powers that run counter to rules of international law.
We are not arguing that Presidents should ignore international law; compliance, or at least perceived compliance, with international law is likely to be an asset in waging modern war. (14) Nor are we addressing whether and how international rules legally bind the United States as a matter of international law. (15) Our inquiry is limited here purely to the status of international rules as domestic law and their relevance to the separation of powers. Whether the President should follow international law in the exercise of his constitutional authorities remains a policy question that is context specific.
I. CONSTITUTIONAL TEXT AND STRUCTURE
Arguments that the President must obey international law, as a matter of domestic law, depend on the Supremacy Clause. The President's Article II obligation to "take Care that the Laws be faithfully executed" (16) applies to international law only if Article VI recognizes international law as constituting federal law. The Supremacy Clause itself only mentions one species of international law: treaties. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States," Article VI declares, "shall be the supreme Law of the Land." (17)
Clearly, Article VI recognizes that treaties are federal law and therefore must be enforced by the President, subject to any powers he has to suspend or terminate treaties. But there are compelling textual reasons to conclude that the Supremacy Clause recognizes only treaties, and not unwritten forms of international law--such as customary international law--as federal law. Notice that after Article VI lists the Constitution first as due supremacy effect, it does not say solely "Laws." Rather, it says "Laws of the United States which shall be made in Pursuance thereof." First, this suggests that it is the "Laws of the United States," and not other sources of law that are supreme. State law is not entitled to supremacy, nor is international law or common law, but only "Laws of the United States." It appears that the only place that the Constitution discusses the making of a "Law of the United States" is in Article I, Section 7's bicameralism and presentment clauses. (18)
Second, the Supremacy Clause suggests that international law is not included because it uses the phrase "which shall be made." This language indicates that the "Laws of the United States" were to be made in the future, that is, after the ratification of the Constitution. "Laws of the United States" did not already exist at the time of the writing or adoption of the Constitution, so they could not have included international law. The Law of Nations, as the Framers called it, pre-existed the Constitution. Another way of seeing this point is to compare the Supremacy Clause's description of statutes with its description of treaties. Article VI gives supremacy to treaties "made, or which shall be made," in other words, both to treaties that the President and the Senate will agree to in the future, and to treaties already in existence before the Constitution, such as the Treaty of Paris, which recognized the United States' independence from Britain. (19) In Article VI, the Framers were quite specific about which laws and treaties would receive supremacy effect, and it seems clear that they did not intend to incorporate any body of law that existed before the adoption of the Constitution, except for a handful of treaties.
Third, the Supremacy Clause explicitly distinguishes between different forms of international law, and only gives one of them supremacy effect. Article VI elevates treaties to the level of supreme federal law. It does not mention the other form of international law at the time, the "Law of Nations." This shows that the Framers knew how to distinguish between different types of international law (treaties and the Law of Nations), and that they were aware that they could give supremacy to a body of international law that existed before the Constitution. It can be determined that the Framers were well aware of the Law of Nations because in Article I, Section 8, they gave Congress the power to define and punish its violation. (20) It would run counter to standard methods of textual interpretation to read the Supremacy Clause's "Laws of the United States" to include customary international law, when the Constitution specifically mentions the Law of Nations elsewhere. Giving full effect to the Supremacy Clause's explicit mention of treaties would also recommend against importing into it the Law of Nations, which went unmentioned.
Fourth, the Supremacy Clause uses the phrase "made in Pursuance thereof." This language requires that any laws of the United States entitled to supremacy must undergo the procedures set out in the Constitution. This language even suggests that the laws made by Congress must comport with the Constitution, not just as a procedural but as a substantive matter. (21) At a minimum, those who argue over the legitimacy of judicial review agree that "made in Pursuance thereof" requires that all Laws of the United States undergo the procedural requirements of bicameralism and presentment. International law is not made pursuant to the Constitution, but by the practice and agreement of states. It does not undergo the same bicameralism and presentment that apply to the Laws of the United States. (22) Of course, if Congress were to choose to incorporate international law through a statute, the law would then satisfy bicameralism and presentment and become a Law of the United States entitled to supremacy.
The Supremacy Clause raises an important structural reason why international law could not cabin the President's chief executive and commander-in-chief powers. The Supremacy Clause establishes a hierarchy of law: the Constitution is the highest form of law, followed by statutes, and then treaties. These forms of law are enumerated in descending level of authority. Thus, the Constitution overrides statutes, and statutes override treaties. If the President, therefore, is validly exercising his constitutional authority, that authority could not be restricted by a statute, and it certainly could not be limited by international law, because neither source of law could override the Constitution.
One might argue, however, that the President has a duty to enforce laws that go beyond federal law. Professor Ernest Young and Professor Michael Ramsey, for example, have suggested that customary international law enjoys the status of pre-Erie general federal common law that could provide a rule of decision in an appropriate case but would not preempt state law or give rise to federal question jurisdiction. (23) One implication of this, which Professor Ramsey seems to follow, is that international law might be included within the "Laws," in Article II's Faithful Execution Clause, even though it would not be within the Supremacy Clause's enumeration of federal law. (24)
We disagree with this view. This argument usually depends upon the statements of Framers during the early Republic. There do not appear to be any comments during the ratification period itself, however, which support the argument. If this view were correct, the President could enforce customary international law within the United States in the absence of a statute. President Washington, for example, would have been on firm constitutional ground in ordering the prosecution of American citizens who violated his Proclamation of Neutrality in the French Revolutionary Wars, (25) even though Congress had yet to enact any criminal sanctions for its violation. (26) It is true that some Supreme Court Justices, such as Chief Justice John Jay, gave jury charges on the basis of Washington's Proclamation while sitting as lower court judges. (27) Although Washington and his cabinet believed that the President could unilaterally enforce customary international law, juries acquitted defendants charged under the Proclamation of Neutrality. In response, President Washington asked Congress to enact a criminal law, which it did the next year. (28) In 1812, the Supreme Court resolved any confusion in Hudson & Goodwin, which held that no federal common law of crimes existed. (29) At the very least, these events demonstrate that no consensus existed among the Framers in favor of the idea that the President could enforce non-statutory or non-treaty based international law. If anything, the resolution of the Neutrality Proclamation prosecutions suggests the exact opposite.
Other parts of the Constitution also seem to challenge the view that international law limits presidential power. Article I, Section 8 enumerates a variety of congressional powers, such as the authority of Congress "to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (30) This provision empowers Congress to incorporate customary international law into federal law, which would be unnecessary if the Law of Nations were already domestic law. If the Law of Nations were already federal law, there would be no need for the Constitution to grant Congress an explicit power to criminalize their violation, because Congress would already have that discretion under the Necessary and Proper Clause (just as Congress can criminalize activity within reach of the Interstate Commerce Clause).
Requiring that Presidents obey customary international law in the exercise of their commander-in-chief or chief executive authority would also distort constitutional structure by raising the authority of international law above that of ordinary statutes. Ordinary statutes cannot infringe on the President's valid constitutional power; a statute, for example, could not forbid the President from exercising his removal authority over an executive branch official. Similarly, Congress could not enact statutes interfering with the President's commander-in-chief authority to make tactical or strategic decisions in wartime. This restriction arises from the same reasoning that forbids Congress from interfering with the Constitution's conferral of the judicial power on the federal courts. (31) The Constitution is the highest form of federal law, and its distribution of authority among the branches cannot be overridden by statute, executive order, or judicial decision. If customary international law can limit, as a matter of domestic law, what would otherwise be a valid exercise of the commander-in-chief or chief executive power, it would have greater force within our system than an act of Congress or a judicial decision.
Giving customary international law a limiting effect on presidential power would also create a strange deformation in the Constitution's allocation of the foreign affairs power. Under current practice, the Constitution is understood as granting the bulk of the foreign affairs power to the President. According to Supreme Court opinions, the President is the "sole organ" (32) of the nation in its diplomatic relations, and he exercises broad powers to set foreign policy, to protect the national security, and to make or break international agreements. Critics of presidential power would preclude the President in these activities from violating international law. At the same time, however, it is relatively settled that Congress can violate international law by statute--for some reason, supporters of customary international law as a restraint on presidential power are willing to abide by this aspect of The Paquete Habana. This legal interpretation would give Congress the authority to violate international law while denying that authority to the President, even though the President is thought to exercise the bulk of the nation's foreign affairs power.
There is no indication that the Framers would have intended such a result. If anything, the basic theory of popular sovereignty underlying the Constitution rejects it. Under this theory, the government exercises power only because it serves as the agent of the people's will. As James Madison wrote in Federalist 46, "[t]he federal and state governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes." (33) Madison reminded critics of the proposed Constitution "that the ultimate authority, wherever the derivative may be found, resides in the people alone." (34) The government can exercise only that power that the people have delegated to it, which is codified in the Constitution. Any law that conflicts with the written Constitution is illegal, because it goes beyond the delegation of power from the people to the government. As Alexander Hamilton stated in Federalist 78, "every act of a delegated authority, contrary to...
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