THE STATUS OF TREATIES AS DOMESTIC LAW

UNDER THE U.S. CONSTITUTION

Carlos Manuel Vázquez *

Though ambitious in length and scope, Professor Yoo’s survey of British and colonial approaches to treaty making and enforcement, the experience under the Articles of Confederation, and the debates at the Constitutional Convention and selected state ratifying conventions is quite modest in aim. Professor Yoo’s aim is to show that that this material does not provide “conclusive” or “definitive”[1] support for the position that, under our Constitution, treaties “automatically” take effect as “the internal law of the United States.”[2] He hopes that, by clearing away this inconclusive underbrush, his work will “shift the debate on treaty execution toward textual, structural, or doctrinal arguments.”[3]

Professor Flaherty has convincingly shown that Professor Yoo falls far short of this goal.[4] Indeed, as Professor Flaherty’s response demonstrates, a comprehensive examination of the founding material buttresses the constitutional interpretation Professor Yoo attempts to discredit. Because the prevailing view emerges from Professor Yoo’s historical mill unscathed, I take this opportunity to engage in the sorts of analyses Professor Yoo thinks potentially more decisive. I explain why the approaches to the domestic enforcement of treaties that Professor Yoo finds plausible in light of the founding material are in fact implausible from the textual and doctrinal standpoints. I also explain why the structural critique Professor Yoo offers of the prevailing view misses its mark. This examination shows that, even if Professor Yoo had succeeded in demonstrating the inconclusiveness of the founding material, the other modalities of constitutional argument would provide more than ample support for the constitutional interpretation Professor Yoo disputes. That constitutional text and doctrine offer no firmer ground than history for critiquing the interpretation of the Supremacy Clause that prevails among scholars should come as no surprise. Contrary to Professor Yoo’s suggestions, the scholars who take this view do not relied primarily on the founding materials.[5] In my view, the position Professor Yoo disputes is supported most strongly by the text of the Constitution. Concluding that the Constitution gives treaties “automatic” effect as domestic law once made requires only an unadorned reading of the Supremacy Clause. I consider in Part II whether there are plausible ways to reconcile Professor Yoo’s various alternative positions with the Constitution’s text and I conclude that there are not.

I turn in Part III to judicial doctrine. Professor Yoo places much weight on judicial decisions recognizing a category of treaty that is not judicially enforceable because “non-self-executing.” I regard this as the strongest support for Professor Yoo’s position. Many courts and commentators and the Restatement of Foreign Relations Law share Professor Yoo’s view that a non-self-executing treaty lacks the force of domestic law.[6] If so, then the cases recognizing a category of non-self-executing treaties are incompatible with a literal interpretation of the Supremacy Clause, as they recognize that not “all” treaties of the United States are the law of the land. I have attempted to show that the conflict between the cases and the text is less evere than it at first appears, but I recognize that some tension remains. This tension, however, merely raises the question whether the text or the cases must give way. Answering the question requires a theory about the relative weight to be given to text and precedent in interpreting the Constitution. Some strict textualists take the position that the whole doctrine of non-self-execution is invalid because it conflicts with the Supremacy Clause.[7] The approach to constitutional interpretation I have followed in my work on treaties accepts a greater, though limited, role for judicial precedent that deviates from the text. But my approach strives to preserve as much of both text and doctrine as possible, reading both in such a way as to minimize the conflict.[8] The Supreme Court cases Professor Yoo cites thus lead me to read the Supremacy Clause as adopting a default rule that treaties have the force of domestic law, a rule that may be reversed by the treatymakers through a clear statement in the treaty itself (or reservation thereto). This view is tolerably consistent with the Constitution’s text. The positions espoused by Professor Yoo, on the other hand, produce intolerable conflict with the text.

I address in Part IV a type of constitutional argument that repeatedly rears it head in Professor Yoo’s article -- argument based on what he sees as the “deeper structural imperatives” of the constitution.[9] By this he apparently means the separation of powers principles that give the “political branches” -- the President and Congress -- and not the courts, the responsibility for conducting the nation’s foreign policy. I dismiss these arguments as wholly inconclusive. They offer no basis for rejecting the prevailing interpretation of the Supremacy Clause, which expressly gives judges (and only judges) a role to play in the enforcement of treaties.

Before turning to text, doctrine and structure, I will comment briefly on the type of argument that consumes by far the greatest portion of professor Yoo’s article – his historical argument. Because this is the focus of Professor Flaherty’s response, I resist the temptation to explain how Professor Yoo misinterprets or overreads specific statements he relies on.[10] Instead, I will raise a few objections to the interpretive theory that appears to underlie the structure of Professor Yoo’s historical argument, as well as his critique of the use of the historical material by defenders of the prevailing view. I call it the “contractual theory” of original intent because it appears to regard as binding certain agreements reached at certain ratifying conventions regarding the interpretation of certain provisions of the Constitution. Part I describes the theory and explains why it would hold little promise in interpreting a constitutional provision like the Supremacy Clause even if the statements Professor Yoo relies on as support for his interpretation were more conclusive than he finds them in the end.

I. Yoo and the Founding

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II. Yoo’s Textual Problem

Before today, one might have thought that, if ever there were a constitutional question that could be resolved by constitutional text alone, it would be the question whether treaties of the United States have the status of domestic law. The Supremacy Clause addresses that question directly. It provides that “all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land.”[11] No interpretation is necessary to conclude that this clause purports to give “all” treaties the status of domestic law.

But Professor Yoo is nothing if not bold in the face of constitutional texts.[12] He concludes that our Constitution does not give treaties the effect of domestic law once “made” by the President with the consent of the Senate pursuant to Article II. Instead, Professor Yoo maintains, our Constitution can properly be read to establish that validly made treaties do not “take effect as internal U.S. law” until implemented by federal statute.[13] He does not square his position with the Supremacy Clause’s text by arguing that the clause’s reference to the “law of the land” is a reference to something other than “internal U.S. law,” for he criticizes Professor Louis Henkin’s statement that our Constitution “mean[s] that treaties are law of the land of their own accord and do not require an act of Congress to translate them into law.”[14] I had never considered this statement of Professor Henkin’s to be even mildly controversial. In fact, it borders on the tautological.[15] The Supremacy Clause just says that treaties are to be the law of the land.

Professor Yoo maintains that Professor Henkin (and many others) erroneously assume that the Supremacy Clause was meant to give treaties automatic effect as law.[16] He sees nothing in the Constitution that conflicts with the idea that treaties have domestic legal force only if and when the House joins the President and the Senate in passing an implementing statute.[17] In other words, he thinks the Supremacy Clause can be read as non-self-executing.

This argument, however, overlooks the wording of the clause. The clause provides that “all” treaties which “shall be made” under the authority of the United States “shall be” the law of the land. The natural reading of that language is that they “shall be” the law of the land once “made.” The contrary interpretation relies on a torturing of language that would warm the heart of someone inclined to question what the definition of “is” is. The only even remotely plausible textual basis for Professor Yoo’s construction would interpret the clause’s use of the future tense as signifying that treaties “shall be” the supreme law of the land not once made but at some later time. So read, the clause would function as an instruction to the lawmakers to pass the relevant statutes.[18] But the clause cannot be read that way. The term does indeed signify the future tense, but the future event that triggers the treaty’s status as law of the land is plainly the coming into force of the treaty.

The words “shall be” in the Supremacy Clause apply equally to the Constitution and federal statutes, yet the clause has always been read to make the Constitution and federal statues the supreme law of the land immediately upon their coming into force.[19] That the term “shall be” in the Supremacy Clause does not denote non-self-execution is confirmed by its use in other Articles. Article I says that the legislative power “shall be” vested in Congress,[20] and Article II provides that the executive power “shall be” vested in the President.[21] In both contexts, the vesting has been understood to be effective by virtue of the adoption of the Constitution itself, without the need for additional legislative action. Article III provides that the judicial power “shall be” vested in the Supreme Court and in such inferior courts as Congress may establish.[22] Here, too, the language has been read as self-executing. The Supreme Court is understood to possess the whole judicial power, as described in Article III, section 2, by virtue of the Constitution itself.[23] With respect to the lower federal courts, the vesting is understood to be non-self-executing, but that is not because of the use of the term “shall be,” but rather because of the language making it clear that Congress has the discretion to establish lower federal courts or not.[24]

Interpreting the Supremacy Clause to give treaties the force of domestic law only to the extent they are implemented by statute would also have the unfortunate effect of reading the reference to treaties entirely out of the Supremacy Clause. A treaty that has the force of domestic law only to the extent a federal statute gives it such force would not have the effect of domestic law before or after the statute’s enactment; under such circumstances, only the statute would have domestic legal force.[25] Had the Founders intended to establish such a regime, they could (and should) have omitted the reference to treaties from the Supremacy Clause entirely. The necessary and proper clause[26] would still have given Congress the power to pass statutes implementing treaties, and the Supremacy Clause’s reference to federal statutes would have sufficed to give supremacy to any such statutes. Professor Yoo notes that his reading would treat the Supremacy Clause’s reference to treaties “much in the way that the Necessary and Proper Clause provides the federal government with the authority to pass enabling legislation for other constitutional grants of power.”[27] He fails to see that this undermines his argument. We already have a “necessary and proper” clause to give Congress the power to implement treaties.[28] A longstanding and unimpeachable axiom of legal interpretation advises us to strive to avoid interpretations that render provisions redundant.[29]

Perhaps in tacit recognition of the textual difficulty with this broad position, Professor Yoo advances in the alternative a narrower position: treaties lack the force of domestic laws not categorically but presumptively. Although he is not clear about exactly what is needed to overcome this presumption, it does appear that, on this view, the treatymakers have the power to give the treaties they make the force of domestic law. The reference to treaties in the Supremacy Clause would thus have some role to play under this interpretation: it would serve as the basis for the power of the treatymakers to determine whether the treaties they make shall have the force of law or not. Without the clause, their role might have been thought to extend only to the making of the international agreement. But that reading of the Supremacy Clause -- which I have called the “power-conferring” interpretation[30] -- is almost as difficult to square with the text of the Supremacy Clause as a flat rule of non-self-execution. The Supremacy Clause is not written as a power-conferring provision; it is written as a status-conferring provision. Article I gives the President the power to make treaties, with the consent of a supermajority of the Senate; and the Supremacy Clause purports to give the treaties they make the status of domestic law. The claim that the clause is not self-executing runs into the textual problems noted above, whether the execution is done by the lawmakers or the treatymakers. The Supremacy Clause purports to do that work itself.[31]

In short, if the question is whether treaties of the United States, validly concluded by the constitutionally appointed treaty-makers and in force, are the “law of the land” once made, it is answered by the text. The claim that such treaties only acquire the force of “internal U.S. law” once implemented by an internal U.S. law is simply not an eligible interpretation of that text. The claim that the Constitution establishes a presumption that treaties lack domestic legal force is more plausible, but not nearly plausible enough.

To be sure, the text does not answer all questions concerning the domestic enforcement of treaties. There remain substantial questions about what it means to say that the Constitution, federal statutes, and treaties have the force of law. Specifically, there remain important questions about the doctrine that some treaties are non-self-executing. In past articles, I have attempted to reconcile the concept of a non-self-executing treaty with the Supremacy Clause’s declaration that “all” treaties are the law of the land. In those articles, I have argued that our Constitution should be read to establish a presumption that treaties are self-executing. Professor Yoo now argues that the Constitution should be read to incorporate either a categorical rule or a presumption that treaties are not self-executing. If this argument cannot withstand a textual analysis, perhaps Professor Yoo’s project could be salvaged by casting it as a call for a presumption that treaties are not self-executing, excising the further claim that such treaties lack domestic legal force.[32]

The textual problem is not so easily escaped, however. My attempt to reconcile the concept of non-self-executing treaties with the Supremacy Clause, after all, was driven by my perception of a tension between the non-self-execution doctrine and the Constitution’s designation if treaties as law. It is this tension, I argued, that warrants a presumption that treaties are self-executing. My claim, elaborated below, is that a non-self-executing treaty lacks essential attributes of a “law” within the meaning of Supremacy Clause. One might have expected a defense of the concept of non-self-execution to attempt to show that I have misinterpreted the term “law” in that clause -- that a treaty can be non-self-executing and still be “law.” But Professor Yoo does not do that. Indeed, he apparently agrees with the Reporters of the Restatement of Foreign Relations Law, who maintain that a treaty that is not self-executing lacks the force of domestic law.[33] What Professor Yoo apparently fails to see is that this is exactly why the concept of a non-self-executing treaty is rightly regarded as constitutionally problematic.

III. Judicial Doctrine

Professor Yoo’s position that, notwithstanding the Supremacy Clause, not all treaties of the United States have the force of domestic law finds stronger support in judicial precedent than in text or the founding material. I refer here to the cases recognizing that certain treaties, though in force internationally, are not “self-executing.” These cases offer some support for his position, however, only because there is some tension between the concept of a non-self-executing treaty and the Supremacy Clause’s declaration that treaties are “law.” On this point, Professor Yoo goes so far as to embrace the position of the Restatement that treaties that non-self-executing treaties lack the force of domestic law. If that were true, then these cases would conflict directly with the Supremacy Clause. We would then have to determine which should give way: the text or the cases. The proper resolution of such a direct conflict is a highly disputed methodological question,[34] one that Professor Yoo does not address.

In other work, I discuss the nature of the apparent conflict between the concept of a non-self-executing treaty and the status of those treaties as law, and consider whether the two can be reconciled. The often expressed sense that non-self-executing treaties lack the force of domestic law appears to be based on the fact that such treaties, unlike most law, cannot be enforced in court against those on whom the treaty purports to impose a duty by those for whose benefit the treaty imposes the duty. Although the understanding of the concept of law reflected in that position is well-founded, I conclude that the Supreme Court cases recognizing that certain treaties are non-self-executing involve relatively unproblematic exceptions from, or refinements of, that principle. Nevertheless, the Executive Branch, with the help of some lower courts, has been pushing the doctrinal envelope in a direction that exacerbates the tension between the doctrine and the Supremacy Clause. Although what exactly they have been doing is disputed, on one view, they have been entering into treaties and purporting to deny them the force of domestic law by attaching to them a declaration that the treaty is non-self-executing. With respect to certain treaties, in other words, the treatymakers have purported to countermand the ordinary operation of the Supremacy Clause.

The doctrine as reflected in these declarations is clearly in tension with the Supremacy Clause’s text. If the treatymakers have the power to deny a treaty the force of domestic law in this way, then clearly not “all” treaties of the United States are the law of the land. The Supremacy Clause becomes a default rule, subject to reversal through the acts of the treatymakers.

If the doctrine is in this respect in tension with the clause, the question again arises: which should give way, the text or the doctrine? In other words, should we adjust our understanding of the text, or should we reject this aspect of the doctrine? As noted, answering this question requires a theory of constitutional interpretation. Some scholars have insisted that the practice of declaring treaties to be non-self-executing is unconstitutional, and the declarations invalid, because it conflicts with the text of the Supremacy Clause. Unlike these scholars, I accept the authoritativeness in certain circumstances of judicial precedent that deviates from the text. Despite the apparent tension with the text, I acknowledge that the treatymakers have the power to countermand the ordinary operation of the Supremacy Clause because, on my analysis, this practice falls within the broad contours of Supreme Court decisions on the self-execution doctrine.

This concession gives some surface plausibility to Professor Yoo’s reading (or reading out) of the Supremacy Clause, as it recognizes that a literal interpretation of that clause is untenable. The concession does not help Professor Yoo nearly enough, however. Acceptance of a doctrine that deviates somewhat from the text does not justify reading that text entirely out of the Constitution. The philosophy reflected in the aphorism “In for a dime, in for a dollar” has no place in constitutional interpretation. (If it did, we would have precious little of the Constitutional text left to work with.) The interpretive methodology I have followed in my constitutional work strives to salvage as much as possible of both text and judicial precedent. The non-self-execution doctrine, as recognized in Supreme Court decisions, goes only so far as to permit the treatymakers to countermand the Supremacy Clause’s effects. The clause’s declaration that treaties have the force of domestic law remains the default rule. The cases support a presumption that treaties are the law of the land and self-executing. Even if the cases did not affirmatively support such a presumption, the fact that they do not conflict with such a presumption should be enough to require its adoption on textual grounds.

In this Part, I first discuss why the concept of a non-self-executing treaty is regarded by Professor Yoo and others as lacking the force of domestic law. I then consider whether the Supreme Court cases recognizing the category of non-self-executing treaties can be reconciled with the Supremacy Clause’s text. In this connection, I summarize my prior explanation that the doctrine in fact encompasses four distinct types of reasons why a valid law might not be judicially enforceable. I include here a discussion of the treaty-makers’ recent practice of declaring certain treaties to be non-self-executing, and a brief explanation of my acceptance of their power to do so. I conclude, however, that the doctrine of non-self-executing treaties requires, at most, the acceptance of a power to countermand the ordinary operation of the Supremacy Clause. To the extent Professor Yoo would go beyond that, his position is doctrinally unsupported and, because textually implausible, must be rejected.

A. The Concept of a Non-Self-Executing Treaty

Shorn of the language that condemns it from a textual standpoint, Professor Yoo’s thesis may be framed as an argument that our Constitution may properly be interpreted as establish either a flat rule or a presumption that all treaties are that all treaties are non-self-executing. Unfortunately, Professor Yoo does not clearly explain what he means by this term. In this section, I discuss what is typically meant by the statement that a treaty is non-self-executing, and how I have attempted to reconcile this doctrine with the Supremacy Clause. In the next section, I attempt to discern what Professor Yoo means by the term, and I consider the plausibility of his various alternative positions.

At a general level, a treaty -- like any law -- may be said to be non-self-executing when it does not accomplish of its own force the aims it seeks to accomplish. Although the question can arise in other contexts, it usually arises when someone tries to invoke a treaty in a court. A treaty that is non-self-executing, as the Restatement defines that concept, is simply not enforceable in the courts.[35] It is easy to see why the Restatement would go on to describe such a treaty as lacking the force of domestic law. The role of the courts in our system of government is to resolve disputes in accordance with law. Indeed, the Supremacy Clause expressly instructs state judges to give effect to treaties notwithstanding anything in the state constitutions or laws. Yet a non-self-executing treaty is not cognizable in the courts, state or federal. It does not, for example, preempt state laws, or provide a defense in a criminal or civil proceeding. The position that a non-self-executing treaty lacks domestic legal force thus reflects an understanding of the concept of law which ties a norm’s legal status to its enforceability in court against those upon whom the law purports to impose an obligation, by those for whose benefit the law imposes the obligation. The close link in our legal tradition between law and courts is reflected in the Supremacy Clause itself, which, after declaring treaties to be laws, proceeds to instruct the judges in every state to give them effect. The position also reflects the related notion that a law requires a sanction[36] – that is, that the legal system must make some provision for enforcing legal norms against the duty holder. Elsewhere, I elaborate and offer a qualified defense of these conceptions of what it means for a norm to have the force of law.[37] I need not say more here, as Professor Yoo offers no alternative conception of what it means to be law -- indeed, he regards a non-self-executing treaty as lacking the force of domestic law.[38]

Notwithstanding the Supremacy Clause, our courts have long recognized that some treaties are not enforceable in the courts because they are non-self-executing. In a prior article, I considered the compatibility of this doctrine with the Supremacy Clause and concluded that this “doctrine” actually encompasses four distinct types of reasons why a treaty might legitimately be considered judicially unenforceable. As long as the four doctrines are confined to their proper scope, they are tolerably compatible with the Supremacy Clause’s designation of treaties as law. But, like the analogous doctrine under which certain constitutional provisions are said to raise political questions, this doctrine should be regarded as problematic precisely because, if broadly construed, it is in tension with the conviction that law is judicially enforceable by the individuals whose rights it purports to govern. The Supreme Court’s self-execution decisions, like its political question decisions, can and should be read to construe our Constitution to establish a presumption of judicial enforceability.

Unconstitutional Treaties. The first of the four categories of non-self-executing treaties consists of treaties that purport to accomplish what is beyond the powers of the treaty-makers under our Constitution. Such treaties may be said to lack the force of domestic law for the same reason unconstitutional statutes are thought to lack such force. To the extent they purport to accomplish what is beyond the treatymaking power, they are invalid.

A treaty might in theory be invalid because it purports to do something that neither the federal nor state governments may do under our Constitution. A treaty that restricts the freedom of speech within the meaning of the First Amendment would be an example. Such a treaty is void as a matter of domestic law. Other treaties may attempt to accomplish something that is within the powers of the federal government but beyond the powers of the treaty-makers. Such treaties are unconstitutional because they intrude upon the exclusive powers of the legislature. They purport to do what, under our Constitution, can only be accomplished through a statute. These treaties might be, and have been, described as “non-self-executing.” They are in force internationally, but, because of the way our Constitution divides powers between the treaty-makers and the law-makers, they cannot accomplish their goals of their own force. They require implementation.

One example of something that, under our Constitution, can only be done by statute is the appropriation of money. During the Jay Treaty debates, everyone assumed that an appropriation would require action by the House. The debate was about whether the House was duty-bound to appropriate the money, simply because the treaty was the law of the land, or instead had the discretion to decline to appropriate the money if it objected to the treaty. The latter position has prevailed, a position that indeed seems to follow from the premise that an appropriation requires a law. The idea that the legislature can be bound to enact legislation is foreign to us.[39] In any event, any such “duty” would be wholly unenforceable. To say that the House is under a duty to appropriate the money and that, if it does not, it can be ordered to do so, is to trivialize the requirement of House action. And to recognize that the “duty” is unenforceable is to trivialize the duty.

If we reconcile treaties that purport to appropriate money with the Supremacy Clause by regarding them as unconstitutional, it would appear to follow that the treaty-makers should not have concluded the treaty to begin with, at least not before obtaining the necessary appropriation from the House. That we instead just say that the treaty is non-self-executing reflects the same views about the nature of a legal obligation that underlies the statement that a non-self-executing treaty is not the law of the land – that is, it reflects the conviction that a supposed duty not enforceable against the duty-holder, either judicially or otherwise, is not truly a legal duty. Perhaps if the impeachment power had come to be used against Presidents who entered into such treaties, the idea that the President lacks the constitutional power to conclude such treaties might have taken root.[40] In any event, a President who knows that appropriations require action by the House would presumably not enter into a treaty purporting to appropriate money, and the Jay Treaty did not purport to do so.[41] A prudent President would refrain from entering into an unconditional obligation to do something that requires an appropriation without getting the House’s approval beforehand. He would be more likely to agree to “propose” action to the Congress, or to “use his best efforts” to achieve the desired ends, or he would attach a reservation or declaration alerting the other parties to the constitutional role of the House. Treaties phrased in any of those ways would not be unconstitutional, but they would fall into one or more of the other categories of non-self-executing treaties.

Nonjusticiable Treaties. Like the first category, the second category of non-self-executing treaties reflects separation of powers notions. But the second category reflects the Constitution’s allocation of powers among the branches of our federal government with respect to the enforcement rather than the making of treaties. This second category consists of treaties that are not judicially enforceable because they establish a type of obligation whose enforcement our Constitution allocates to a branch other than the judiciary. As noted, our legal tradition recognizes a link between law and courts. Thus, by declaring treaties to be law, the Supremacy Clause appears to allocate their enforcement to the courts. But our legal tradition also recognizes certain limits on the judicial enforceability of laws. The courts are regarded as the proper enforcers of certain types of norms but not others.

The most pertinent limitation can be traced to Marbury v. Madison: “The province of the court is, solely, to decide on the rights of individuals.”[42] A treaty, therefore, is not judicially enforceable if it does not confer rights.[43] A treaty does not confer a right if it does not impose an obligation. This is why a precatory or hortatory treaty is not judicially enforceable. Such treaties are sometimes said to be non-self-executing,[44] but the label in this context signifies something very different from what it means in the case of an unconstitutional treaty. There is nothing in the Constitution that prevents the treatymakers from entering into treaties with precatory or aspirational provisions.

That the courts may not enforce such provisions is unproblematic. Such treaties might be said to impose obligations of a sort, just as the Constitution’s preamble might be said to obligate the Congress to seek to “promote the general welfare,” but, in both cases, the “obligations” are not thought to create correlative legal rights. They might be described as moral obligations. Determining how to implement an aspirational provision requires the balancing of a number of competing demands on our resources, and this sort of balancing is something our Constitution assigns to the legislative branch. The formal conclusion that such provisions do not create legal “rights” might be thought to reflect this division of powers among the branches of the federal government.

Precatory provisions might be regarded as part of a broader category of nonjusticiable provisions. Another type of nonjusticiable provision consists of those that are too vague for judicial enforcement. Like constitutional and statutory provisions, a treaty may be judicially unenforceable because it does not offer “judicially manageable standards.”[45] The formal and functional reasons for concluding that such provisions are not enforceable in the courts is similar to the rationales for finding precatory provisions to be non-self-executing. A vague treaty provision does not “prescribe[] a rule by which the rights of the private citizen or subject may be determined.”[46] It leaves the parties with much discretion about how to comply, and in our system of government it is for the legislature to exercise that discretion.

It may be that even certain mandatory and determinate treaty provisions are nonjusticiable as a constitutional matter. Analogously, the political question doctrine is said to reflect the idea that the enforcement of certain constitutional norms has been allocated by the Constitution to a branch other than the judiciary.[47] Sometimes the conclusion that the Constitution allocates the enforcement of a constitutional provision to the nonjudicial branches is based on the precatory or vague nature of the norm, but sometimes it is based on constitutional text[48] or structure.[49] It cannot be said that the Constitution allocates the enforcement of treaties generally to a branch other than the judiciary, but perhaps a court could legitimately construe the Constitution to place treaties concerning certain subjects -- arms control, for example -- beyond the enforcement power of the courts. Alternatively, the unenforceability of such treaties might be explained by the more general principle I traced above to Marbury v. Madison -- an arms control treaty might be said to be judicially unenforceable because it does not confer rights on individuals, as individuals are not its objects.[50]

This is not the place to explore the outer boundaries of this category of non-self-executing treaty. What is important for present purposes is to recognize that this category includes treaties that are not judicially enforceable because of the way our constitution allocates the power to enforcement treaties that are validly concluded by the treaty-makers. Like the political question doctrine, this category of non-self-executing treaty should be regarded as an exception to the general rule that laws are judicially enforceable.[51]

Treaties Addressed to the Legislature. The first two categories of non-self-executing treaties are simply versions of doctrines that apply equally to constitutional and statutory provisions. To the extent the term “non-self-executing” describes a doctrine unique to treaties, it refers to the third category – which I have called the intent-based category. It consists of treaties that are addressed to the legislature in the sense that the obligation they impose is an obligation to pass domestic legislation.

Foster v. Neilson is the prototype of this category. At issue in that case was whether a treaty between the United States and Spain ratified and confirmed certain Spanish grants of land of its own force, or instead required the United States to “pass acts” (i.e., legislation) to ratify and confirm the grants.[52] The Court acknowledged that, if the treaty had provided that the grants were “hereby” confirmed, it would have been self-executing and would accordingly have governed the question of title.[53] But the Court read the treaty as a “stipulation for some future legislative act.”[54] The Court relied on the English text, which provided that the grants “shall be ratified and confirmed.”[55] It read this language as contemplating a future act of ratification. In a later case involving the same treaty, United States v. Percheman,[56] the Court confessed error. This time, the Court had before it the Spanish text, which said that the treaties “shall remain ratified and confirmed.”[57] This, the Court held, was the language of self-execution.

Foster recognizes that a treaty is not self-executing if the obligation it imposes is an obligation to enact domestic legislation. It is important to distinguish this category from the first two categories. In the latter cases, the determination that a treaty is or is not self-executing turns on an interpretation of our Constitution. The first case reflects the conclusion that the treaty was invalidly made; the second the conclusion that the treaty, though validly made, imposes an obligation whose enforcement our constitution allocates to nonjudicial branches. In the Foster category, by contrast, the self-execution question turns on an interpretation of the treaty. Treaties that fall in the first two categories may be said to be “addressed to the legislature,” but only constructively. The necessity for legislative action is a consequence of a constitutional disability (in the first case, a disability of the treaty-makers; in the second case, a disability of the courts). The third category consists of treaties that are actually addressed to the legislature in the sense that the obligation they establish is an obligation to pass legislation. According to Foster, such treaties are not enforceable in the courts. The role of the courts is merely to enforce the statute passed by the legislature to implement the treaty.

This category of non-self-executing treaty is reasonably compatible with the Supremacy Clause’s declaration that treaties are law. Such treaties are law, but they impose obligations on the legislature. They are not judicially enforceable because the legislature may not be made a defendant in the courts. Indeed, for this reason, we do not typically think of the legislature as being under a legal obligation to pass legislation. In the case of a treaty that is non-self-executing because addressed to the legislature, the treaty might be said to impose a legal obligation that is unenforceable for separation of powers reasons. Again, the political question doctrine offers an analogy. Because it is law, the Constitution is enforceable in the courts by persons injured by violations, but some provisions of the Constitution are not judicially enforceable because the Constitution itself allocates their enforcement to another branch. Similarly, treaties are generally enforceable in the courts under the Supremacy Clause, but treaties falling within this third category of non-self-execution are not judicially enforceable because the treaty itself allocates its enforcement to another branch.[58]

Often this category will overlap with the second category. The parties to a treaty may address a particular provision to the legislature because they recognize that, without legislative fleshing out, the provision leaves the contemplated rights and obligations too vague to be enforced in courts. Even if the substance of the provision is determinate, the requirement of legislation will usually imply that the states retain discretion as to timing. If so, it is for obvious reasons for the legislature to exercise such discretion. Finally, even if the treaty is determinate as respects both substance and timing, the requirement of legislation may be taken to imply an element of precatoriness. It serves as notice to the other parties that compliance will be subject to action by branches potentially beyond the control of the treatymakers.

The Court in Foster treated the self-execution issue as one of treaty interpretation: Was the obligation the parties intended to establish an obligation to “pass acts” to accomplish certain ends? More recently, some lower courts have been asking instead whether the U.S. treatymakers intended that the obligations established by the treaty have the effect of domestic law. These decisions are vulnerable on two grounds: they focus on the unilateral intent of the United States, and they look for an intent with regard to the wrong issue. The Supremacy Clause on its face dispenses with the need to formulate an intent on the status of the treaty as domestic law. A treaty providing that persons satisfying certain criteria shall not be deported, for example, has the force of domestic law by virtue of the Supremacy Clause. A non-self-executing treaty, as that concept was applied in Foster, is one that provides instead that the parties shall enact statutes entitling such persons to resist deportation. Such an obligation is not judicially enforceable because it is by its terms addressed to the legislature. By relying on evidence of a unilateral intent of the U.S. treatymakers that the treaty would lack domestic legal force, these courts appear to have transformed the doctrine beyond its original scope.

Relying in part on the cases deciding the self-execution issue by reference to their unilateral intent, the U.S. treatymakers of late have been making their intent on the self-execution issue clear in “declarations” they have attached to some recent treaties. They have attached declarations to numerous human rights treaties to the effect that the treaties are not self-executing. These declarations have been criticized as being in tension with the Supremacy Clause’s declaration that treaties are law. To the extent they were intended to render non-self-executing a treaty provision that otherwise would be self-executing, these declarations may be characterized as an attempt to countermand for a given treaty the rule that the Supremacy Clause would otherwise establish.[59] Professor Henkin has called the practice of attaching such reservations to treaties as “anticonstitutional”[60] -- an unconventional term that he presumably used advisedly to denote something other than unconstitutional. I agree that the practice is contrary to the spirit that animated the Supremacy Clause. It certainly conflicts with the evident desire of the Founders to show the world that we take our treaty commitments seriously by making them enforceable in the ordinary courts.[61] But, contrary to Professor Yoo’s suggestion,[62] I have never taken the position that such declarations are invalid.[63] I address this issue in a work-in-progress. For present purposes, it suffices to note that I accept that the treatymakers can countermand the ordinary operation of the Supremacy Clause through a reservation attached to a treaty. Foster itself recognizes that the domestic effect of a treaty may be negated for all practical purposes through a provision in the treaty itself to the effect that the treaty’s provisions shall be achieved through future acts of domestic lawmaking. The difference between a provision to that effect and a provision to the effect that the treaty shall not have the effect of domestic law cannot, in my view, be of constitutional significance. If this may be accomplished in the body of the treaty, then it may be accomplished through a reservation. The claim that such a reservation would be contrary to the object and purpose of the treaty is, in my view, unsound as a matter of international law.[64]

If the treatymakers do have the power to ratify a treaty on the condition that it have no effect as domestic law, then Supremacy Clause in the end functions as a default rule. It makes treaty provisions judicially enforceable, if valid and otherwise justiciable, unless the treatymakers themselves affirmatively determine otherwise.[65]

Treaties That Do Not Create Private Rights of Action. Increasingly, lower courts have been using the term “non-self-executing” to refer to treaties that do not themselves create a private right of action. The Restatement, on the other hand, insists that the self-execution issue is distinct from the question whether a treaty creates a private right of action. It is true that the doctrine recognized in Foster does not have to do with the existence or not of a private right of action. The plaintiff in Foster had invoked a right of action at common law; he relied on the treaty merely to establish his title to the property. But I have attempted to show that courts often use the term to refer to something other than the doctrine recognized in Foster. Once it is recognized that the term is not a term of art restricted to treaty law, but instead refers to a number of possible reasons why a law might not be judicially enforceable without prior legislative implementation, there is little reason to deny the label to treaties that contemplate but do not create a private right of action. Constitutional provisions, for example, have frequently been described as self-executing (or not) with respect to remedies.[66]

There is, however, an important difference between treaties that are non-self-executing in the first three senses of the term and treaties that are non-self-executing in this fourth sense. In the first three cases, a non-self-executing treaty is not judicially enforceable under any circumstances. A treaty that is non-self-executing in the fourth sense is judicially unenforceable only when it is invoked by someone who seeks to maintain an action and has no other legal source for his right of action. Someone who invokes a treaty as a defense does not need a right of action. For example, if a Texas makes conduct X a crime, and a treaty provides that the parties shall not regard conduct X as a crime, someone being prosecuted in Texas for conduct X should be able to rely on the treaty as a defense, even if the treaty does not create private right of action. Additionally, it is unnecessary to rely on a treaty as the source of a private right of action if another law provides a private right of action. For example, someone seeking damages or an injunction against a state official who has allegedly violated a treaty may rely on section 1983 for his right of action. Someone who seeks an injunction ordering a federal official to stop violating a treaty may rely on the APA for his right of action. As Foster illustrates, historically treaties were not relied upon as the source of the plaintiff’s right of action. The treaty governed the rights and duties of the parties, but the common law provided the right of action.

The lower opinions most frequently cited for the proposition that a non-self-executing treaty is one that does not create a “private right of action” were written in cases in which the treaty was being invoked by a plaintiff suing a private individual or a foreign state in circumstances in which the common law would not have provided a right of action. In such circumstances, there may in fact have been a need to determine whether the treaty itself conferred a right of action. Unfortunately, the dictum in these cases to the effect that a treaty that does not create a right of action is non-self-executing has been wrenched from its context and applied in cases in which there should have been no need to ask whether the treaty itself created a right of action.[67]

Conclusion. The four categories of non-self-executing treaties are reconcilable to varying degrees with the status of treaties as law. The first category recognizes that certain treaties are not law because they are invalid. The second category reflects constitutional principles that limit the power of the judiciary to enforce certain types of laws. The fourth category recognizes that not all laws create a private right of action. The most problematic aspect of the doctrine is not one that has been explicitly accepted by the Supreme Court, but rather is reflected in the recent actions of the treaty-makers. I have concluded that the power of the treatymakers to deprive a treaty of domestic legal force through a reservation is implicit in the doctrine recognized by the Court in Foster. Acceptance of this power transforms the Supremacy Clause into a default rule, which is in tension with the clause’s text, but not intolerably so. The power of the legislature to terminate the domestic effect of a treaty is analogous.[68] To the extent Professor Yoo would go further than this, his position produces intolerable conflict with the text and is not just unsupported but contradicted by judicial doctrine.

B. Yoo’s Doctrinal Problem

Professor Yoo espouses various alternative theories about the effect of treaties in domestic law. What they have in common is that they each represent a far more significant inroad on the Supremacy Clause than the Supreme Court has recognized. I consider each alternative here in turn.

Position 1: Treaties Never Have the Force of Domestic Law. The most radical position advanced by Professor Yoo is that all treaties require implementing legislation. None is effective as domestic law unless and until Congress enacts a statute giving them such force. (As discussed above, that means that none have domestic force by virtue of the Constitution; if and when an implementing statute is passed, the statute will have the force of law.) The argument for this position is apparently the claim that domestic lawmaking is inherently a legislative power and that the treatymakers were not given legislative power.[69]

This position, however, is flatly inconsistent with the Supremacy Clause’s declaration that treaties do have the force of domestic law. It is also contradicted decisively by the many, many cases in which the Supreme Court has given effect to treaties even though they had not been implemented by Congress.[70] This position also conflicts with such entrenched doctrines as the last-in-time rule, under which treaties and statutes are regarded as having equivalent stature and thus the last in time prevails. Under Professor Yoo’s theory, a treaty could never prevail over a statute, as treaties would never have the force of law. Nor would it make any sense even to say that a statute prevails over an earlier treaty. A statute would prevail even over a later treaty. It would in fact never be necessary to compare a statute and a treaty; statutes need be compared only to each other (and to the Constitution). It is in even greater conflict with the numerous decisions that advise that courts should construe treaties liberally.[71] I short, this position is plainly untenable.

Position 2: Treaties on Matters Within Article I Powers Never have the Force of Domestic Law. In the alternative, Professor Yoo advances the argument that a treaty lacks the force of domestic law if it regulates a matter falling within the scope of an Article I power. The evidence for this interpretation consists of statements at the ratifying conventions that, in Professor Yoo’s view, suggest that some delegates read the Constitution this way.[72] There are two possible versions of this position: the first would read the treatymaking power as being constructively limited to matters not assigned to the legislature. The second would concede that the treatymakers have the power to enter into such treaties, but would interpret the Constitution as denying such treaties domestic legal force until implemented.

In form, the basis for reconciling the first version of this position with the Supremacy Clause’s text is the same as the reason we regard treaties that purport to appropriate money not to be effective as law. Because the treatymaking power does not extend to matters falling within Article I, any treaty that does regulate such a matter lacks domestic legal force because it is unconstitutional. But the two examples of claimed legislative exclusivity are so different in scope that they ultimately must be regarded as different in kind. The conclusion that a treaty may not appropriate money is based on the text of Article I, which provides that bills of appropriation shall originate in the House. It is a narrow and textually supported exclusion from the treatymaking power. If everything falling within an Article I power were excluded from the treatymaking power, on the other hand, the latter power would be reduced virtually to nothing. Recall that Article I gives the Congress the power to regulate foreign commerce, to define offenses against the law of nations, and to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in the federal government or any officer thereof, presumably including the powers of the President in the area of foreign affairs. If treaties could not be made on those subjects, it is difficult to imagine what treaties could be made. Indeed, a far more plausible case has been made that the federal government may not do by treaty anything that falls outside the powers of the federal government as outlined in Article I.[73] Of course, if this argument and Yoo’s were accepted, the treatymaking power would be a null set. Although I do not agree that the treatymaking power encompasses only matters that fall within Article I,[74] the argument is plausible at all only because most treaties throughout our history have involved matters that plausibly fall within Article I. This, in turn, shows that the position Professor Yoo attributes to some ratifiers is not only unsupported by constitutional text, which places no such limits on the treaty-making power, but also has been decisively rejected by history and tradition. Numerous Supreme Court decisions give effect to treaties on matters within Article I powers.[75]

Professor Yoo might well respond that he is not claiming that the treatymakers were thought to lack the power to conclude treaties on such matters, but only that any such treaties were thought to lack domestic legal force unless and until implemented by Congress. But this argument would present a direct conflict with the Supremacy Clause’s text. If the treaty were regarded as being within the treatymaking power, then under the Supremacy Clause it would be “the law of the land.” If Professor Yoo’s claim that it nevertheless requires legislative implementation were correct, then the treaties would not appear to be “law” in any recognizable sense. By his own accounting, such treaties wouldn’t even bind Congress to pass the called-for legislation.[76] Congress would retain the discretion to enact implementing legislation or not, just as it would if the Supremacy Clause had made no mention of treaties.[77] There is no support in doctrine for this reading out of the Supremacy Clause. Numerous cases enforce treaties on matters within Article I in the absence of implementing legislation.[78]

Position 3: The Constitution Establishes a Presumption that Treaties Are Not the Law of the Land. Perhaps in recognition of the array of cases that contradict the categorical rules he proffers, Professor Yoo advances in the alternative the claim that our Constitution should be read to embrace a presumption that treaties lack the force of domestic law unless and until implemented by Congress.[79]

As noted above, this reading has the virtue of not reading the Supremacy Clause entirely out of the Constitution, as the clause would function as the source of the treatymakers’ power to give the treaties they make the force of domestic law. Nevertheless it is in conflict with the clause’s text, as the provision is not written as a power-conferring provision. This interpretation is also unsupported by Professor Yoo’s historical narrative. The burden of his discussion of the British practice is that the requirement that treaties be implemented by Parliament reflected the desire to safeguard the prerogatives of the representative branch against executive overreaching.[80] The burden of the discussion of the debates at the framing and the ratifying conventions was similarly the need to protect the role of the House from overreaching by the President and Senate.[81] It is understandable why delegates who had this concern would propose to give the House a necessary role in the making or even the implementation of treaties.[82] But it seems certain that such delegates would be entirely unsatisfied by a rule that would give the House such a role only if the President and Senate wanted them to have it (or forgot to address the matter). A rule that leaves it to the other branches to determine whether the House will have a role fits poorly with the story about the need to protect the people and their representatives from overreaching by the less representative branches.

Professor Yoo argues that a presumption against self-execution is supported Foster. His treatment of this case however, is a textbook example of how, with just a little strategic cutting and pasting, a text may be made to appear to stand for the opposite of what it says. Marshall wrote in Foster as follows:

A treaty is in its nature a contract between two nations, not a legislative Act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an Act of the Legislature, whenever it operates of itself without the aid of any legislative provision.[83]

The first part of that passage is obviously referring to the effect of treaties under international law, or in countries such as Great Britain that do not regard treaties as having the force of law. The second part plainly states that the Supremacy Clause rejects that rule, “establish[ing]” a “different principle” in the United States.[84]

In an attempt to portray Foster as embracing a presumption that treaties do not generally have effect as domestic law, Professor Yoo inverts the order of Marshall’s sentences. Professor Yoo writes as follows:

In Foster, Marshall acknowledged that the Supremacy Clause suggested that all treaties were to be considered self-executing because it “declares a treaty to be the law of the land.” A treaty’s status as supreme federal law required that the courts regard the international agreement “as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.” According to Marshall, however, “a treaty is, in its nature, a contract between two nations, not a legislative act.” As a result, a treaty does not achieve, by its own operation, “the object to be accomplished,” but instead “is carried into execution by the sovereign power of the respective parties to the instrument.”[85]

Inverting the order allows him to portray Marshall as suggesting that the British rule is an exception to the Supremacy Clause, whereas what Marshall plainly says is that the Supremacy Clause was an alteration of the British rule. Of course, if the British rule were an exception to the Supremacy Clause, the Supremacy Clause would mean nothing, as under the British rule treaties are not regarded as law.[86]

To be sure, Marshall does say that only treaties that “operate of themselves, without the aid of any legislative provision” are equivalent to an act of the legislature. But this language cannot have been meant as a reference to his earlier statement that treaties “by their nature” are contracts that “do not generally effect of themselves the object to be accomplished.” The latter language came immediately before the statement that “In the United States, a different principle is established” by the Supremacy Clause. This has to mean that the rule established by the Supremacy Clause is not a rule under which treaties “generally” do not effect of themselves the object to be accomplished. This analysis thus tends strongly to support a presumption that treaties are self-executing in the United States.

When Marshall turned to the treaty before him, he seemed to lose sight of this presumption. As I have noted, Marshall’s application of the “different principle” to the treaty before him might be read to suggest a purer interpretive enterprise, uninfluenced by a presumption either for or against self-execution.[87] But, I argued, the Court’s need to reverse itself on this issue in Percheman, and the Court’s language in the latter case, more than compensate for Marshall’s apparent failure to heed his own counsel in Foster. In particular, the Court framed the issue in Percheman as whether the treaty “stipulat[es] for some future legislative act.”[88] To stipulate for something is “to include [it] specifically in the terms of an agreement, contract, etc.; to arrange definitively.”[89] Thus, if a non-self-executing treaty is one that stipulates for a future legislative act, it is one that provides specifically that such acts are contemplated. In addition to the “different principle” language in Foster and the “stipulate” language in Percheman, a presumption of self-execution is supported by the fact that Foster itself remains the sole case in which the Supreme Court has unambiguously denied relief on the ground that the treaty was not self-executing.[90] Thus, even if Foster did contain language that supported a presumption against self-execution, dictum[91] in a single Supreme Court decision that was subsequently overruled would be a thin reed on which to rest a rule as incompatible with the Supremacy Clause’s text as the one Professor Yoo advances.[92]

Positions 4-6: No Treaty is Self-Executing; No Treaty that Falls Within an Article I Power is Self-Executing; The Constitution Establishes a Presumption that Treaties are Non-Self-Executing. The remaining positions parallel the first three, except they substitute the term “self-executing” for “law of the land.” To the extent Professor Yoo is referring to any of the first three versions of the self-execution doctrine, these positions would appear to require the same analyses as the first three. But an ambiguity is introduced by Professor Yoo’s apparent approval of the cases that equate the self-execution question with the private right of action question.[93] If a treaty that is not self-executing is merely one that fails to confer a private right of action, then a categorical rule that all treaties (or treaties falling within Article I) are non-self-executing would mean that such treaties could still be invoked in court as a defense, or pursuant to rights of action having their source in other laws, such as section 1983 or the APA or the common law. A presumption that treaties are non-self-executing, on this view, would apparently allow such treaties to serve as a defense, or to be enforced pursuant to other laws conferring rights of action, even if the presumption were not overcome. Overcoming the presumption would be necessary only if there were a need to rely on the treaty for the right of action. Moreover, overcoming the presumption would require unambiguous evidence that the treatymakers intended to create a private right of action, but not evidence that they intended the treaty to be effective as domestic law.[94]

That this is what Professor Yoo has in mind is suggested by his discussion of Ware v. Hylton, in which he finds, “contrary to internationalist claims,” that Article IV of the treaty “did not actually give British plaintiffs a cause of action to sue in federal court,” but, rather, “only preempted a defense created by state law,” the “cause of action [arising] under the common law.”[95] If Professor Yoo means that, for this reason, the Court found the treaty to be non-self-executing, he seems to be saying that a non-self-executing treaty can still be relied on in court as a defense or pursuant to rights of action having their source outside the treaty. That this is his position is also suggested by his reference to the case-law concerning implication of private rights of action under statutes as an analogous doctrine that addresses whether if statutes are “self-executing.”[96] Of course, the doctrine reflected in that line of cases is not relevant when a party relies on a statute as a defense, or when he can base his right of action on another statute, such as section 1983.[97]

On the other hand, this position is inconsistent with the position he takes elsewhere that non-self-executing treaties lack the effect of domestic law.[98] Perhaps he means to adopt the “private right of action” theory for purposes of determining what has to be unambiguously stated to overcome the presumption against self-execution, but the “not effective as domestic law” theory for purposes of determining the effect of a non-self-executing treaty.[99] The result would be that a treaty that does not unambiguously create a private right of action would be non-self-executing, and as a result it could not be enforced in court even as a defense. Such a rule verges on the incoherent, however. Why should the failure to make a clear statement about the existence of a private right of action have a bearing on the treaty’s enforceability as a defense?

If Professor Yoo’s position is simply that a treaty presumptively does not create a private right of action, but may still be enforced as a defense or pursuant to other statutes or the common law, then his theory is far less significant than the sweeping statements in his article suggest. In addition to being enforceable as defenses, the obligations of state and federal officials could be enforced through generic rights of action such as those codified in section 1983 (for state officials), the APA (for federal officials), and the habeas corpus statute (for both). If the legislature were to repeal those statutes, substantial constitutional questions would arise under the due process clause (and, I would argue, the Supremacy Clause), but that contingency is a topic for another day.[100] Because of these statutory provisions providing rights of action against government, the need to find a right of action in the treaty should arise primarily where an individual seeks to enforce a treaty against another individual (or a foreign state). Here, Professor Yoo urges a rule analogous to the rigid one the Court has adopted for the purpose of determining whether a statute creates an implied right of action.[101] In another article, I explain why the standard for implying private rights of action under treaties should be more lenient.[102] Further discussion of this question, however, would take me too far afield. The very fact that the effect of adopting the “private right of action” interpretation would be modest is a strong indication that this is not what Professor Yoo has in mind. Modest change seems inconsistent with the article’s tone and with its sweeping statements about the separation of powers, to which I shall now turn.

IV. Yoo’s Structural Arguments

Professor Yoo relies as well on “deeper structural imperatives, arising from federalism and the separation of powers, that the Constitution imposes upon treaties,” imperatives that he accuses me (and others) of ignoring.[103] Presumably, he is referring here to the sweeping arguments he has made throughout the article calling to mind the political question doctrine. Treaties should not be enforced in courts, he argues, because they implicate foreign policy, and the conduct of foreign policy is allocated by our Constitution to the political branches.[104] Finding a treaty to be self-executing “robs the President and Congress of the flexibility they might need in conducting the nations foreign affairs,”[105] meaning the flexibility to violate treaty commitments. At the abstract level in which they most often appear in the article, these “structural imperatives” are too indeterminate to be of any help in answering the questions at issue. Professor Yoo’s periodic attempts to derive from the cases more specific structural principles that support his position on the non-self-execution of treaties, on the other hand, are wholly unpersuasive.

I readily endorse the statement that our Constitution allocates the conduct of foreign policy to the political branches, but the statement is no more helpful at answering the tough questions than any other tautology. Equally unassailable is the statement that enforcement of the law has been allocated to the legal branches (the courts). The Constitution may be said to require that foreign policy be conducted within the bounds established by the law. In other words, when a matter is governed by law it is outside the realm of mere “policy,” whether foreign or domestic. Thus, the political branches may not infringe constitutional rights even when doing so would advance foreign policy goals.[106] Similarly, foreign policy must be conducted in accordance with statutes that regulate foreign commerce.[107] Like the Constitution and federal statutes, treaties are declared by the Supremacy Clause to be law. Thus, the Constitution may well require that those responsible for conducting foreign policy do so in accordance with applicable treaties. The truism that our Constitution allocates the conduct of foreign policy to the political branches does not help us answer that question.

Moreover, the doctrine of self-executing treaties “robs” the political branches of their flexibility only if we otherwise establish that the Constitution entitles those branches to more flexibility than the doctrine gives them. Even without a presumption against self-execution, the political branches retain a great deal of flexibility to violate treaties. A majority of both Houses plus the President may do so by passing a statute that conflicts with the treaty.[108] The President and the Senate may do so, with the agreement of another nation, by concluding a later inconsistent treaty.[109] They may do so without the agreement of another nation by abrogating the treaty.[110] They may even attach a reservation making it clear that the treaty is not judicially enforceable.[111] In certain circumstances at least, the President alone may abrogate a treaty.[112] Even when the President lacks the power to abrogate a treaty alone, the courts apparently won’t interfere with his “flexibility” to do so.[113] The conclusion that a treaty is self-executing thus precludes lower level executive officials, and perhaps the President as well, from violating a treaty that has not been validly (or perhaps even invalidly) terminated. Such officials may wish to have the flexibility to violate treaties that haven’t been terminated or declared non-self-executing, but Professor Yoo has not shown why our Constitution is best interpreted to provide such flexibility. Flexibility has its benefits, but so does precommitment. The decision to have a constitution that limits as well as grant powers, and which, among other things, gives treaties the status of law, reflects a rejection of unlimited flexibility in favor of precommitment.

Furthermore, the proposed presumption against self-execution may actually hobble the political branches in their conduct of foreign policy. Recall that a non-self-executing treaty is not judicially enforceable even against the states. If Professor Yoo’s presumption were adopted, a treaty would be enforceable in court against the states, even at the behest of the federal government, only if the treatymakers made it clear that they intended it to be. The political branches may not welcome the burden Professor Yoo would place on them, or the consequences of failing to overcome the presumption. The presumption Professor Yoo advocates would give the states a greater opportunity to block an attempt to give the treaty domestic legal force, quite possibly to the ultimate detriment of our foreign policy. This result may be defensible on federalism grounds, but Professor Yoo has not rested his argument of federalism principles.[114]

Professor Yoo is no more successful at deriving more specific and determinate separation of powers principles from the cases. For example, he cites Foster for the principle that the judiciary’s role is limited to “decid[ing] upon the individual rights, according to those principles which the political departments of the nation have established.”[115] But this does not tell us, as Professor Yoo suggests, that the courts have “no special role” in the enforcement of treaties.[116] On the contrary, the “principles which the political departments have established” would appear to include treaties made by the President and the Senate. Professor Yoo has given us no reason to conclude otherwise. Professor Yoo also appears to interpret the statement that the courts are to get involved only where the treaty involves “individual rights” as somehow “ensur[ing] that the political branches . . .retain the power to choose how or whether to implement the nation’s international obligations.”[117] He draws a false dichotomy. If a treaty creates individual rights, the courts have a role in enforcing them. This does not negate the power of the political branches to break the treaty by passing a statute or abrogating the treaty, but the existence of this power does not imply that the enforcement of a treaty that hasn’t been terminated or superseded is entirely in the hands of the political branches.

The principle for which Professor Yoo cites Foster does help explain why the courts were required to defer to the President’s interpretation of the treaty at issue in that part of the opinion, an 1803 treaty between Spain and France (thus not one made by the political departments). But, for the same reason, the fact that the Court found it appropriate to defer to the Executive’s interpretation of such a treaty tells us little about the need for judicial deference to the Executive with respect to treaties that are the law of the land.[118]

Similarly, Professor Yoo cites Head Money Cases and Whitney v. Robinson for the general proposition that “the political branches are to enforce treaties, break treaties, or to seek remedies for their violation,” but “the courts generally are to restrain themselves from entering the area” of treaty violations.[119] But the broad language from those opinions that Professor Yoo relies on establishes only that the courts have no role to play in resolving disputes between nations at the international plane. When it comes to resolving disputes about alleged treaty violations at the domestic plane, the Court merely holds that the courts must defer to a decision to break a treaty made by specific combinations of the political branches: a majority of both Houses plus the President, or a supermajority of both Houses without the President. The Court, in other words, merely applied the last-in-time rule. That the political branches may bind the courts by passing a statute does not mean that they can do so without passing a statute. Professor Yoo has read far greater limitations on the courts into these and other cases than their language will bear.[120]

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*Professor of Law, Georgetown University Law Center.

[1]John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. ____, 15-20, 106 (1999).

[2]Id. at 17. Professor Yoo dubs this the “internationalist” position, a label that, in my view, conveys the unwarranted impression that the defenders of this position are making normative or policy arguments to advance a position they favor on ideological grounds. Professor Yoo reinforces that impression in his descriptions of the “internationalist model” and the project of its defenders. See, e.g., Yoo at 15 (internationals claim that “international agreements ought to be directly merged into the domestic legal system”) (emphasis supplied); id. (“The internationalist model argues that international agreements and international law should take effect directly as domestic law without any intervening legislative action.”) (emphasis supplied); id. at 16 (suggesting that internationalists are engaged in “[a]dvocacy of self-execution”). To the contrary, the defenders of this view have relied on fairly conventional modalities of constitutional argument, primarily argument based on text, history, and doctrine. A shall accordingly avoid Professor Yoo’s term and instead refer to what he calls the “internationalist” view as the “prevailing” understanding regarding the status of treaties as domestic law in the United States.

I do not criticize Professor Yoo for himself relying on purely normative or policy arguments. To the extent that text, history, and doctrine are inconclusive, it may well be appropriate to defend a constitutional interpretation on the basis of the types of arguments one would make in drafting a Constitution form scratch. Defenders of the prevailing view, however, do not regard text, history or structure as inconclusive.

I also note that the scholars Professor Yoo critiques do not agree in all respects. In describing my own position on the issues Professor Yoo discusses, I emphatically do not purport to speak for the other scholars Professor Yoo identifies as “internationalists.” Perhaps the biggest point of disagreement among us concerns my acceptance of the treaty-makers’ power to deny a treaty domestic legal force through a clear statement in the body of the treaty or in a reservation. See infra at ___. What we have in common, I think, is that we all agree that the Supremacy Clause establishes at least a presumption that valid treaties in force have the status of domestic law in the United States. This is what I refer to as the “prevailing view.”

[3]Id. at 106.

[4]See generally, Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 Colum. L. Rev. ____ (1999).

[5]See generally Louis Henkin, Foreign Affairs and the Constitution 198-204 (2d ed., 1996); Jordan J. Paust, Self Executing Treaties, 82 Am. J. Int’l L. 760 (1988). My contributions to this literature are Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 697-700 (1995) [hereinafter Vázquez, Four Doctrines]; Carlos Manuel Vázquez, The “Self-Executing Character of the Refugee Protocol’s Nonrefoulement Obligation, 7 Geo. Immigr. L.J. 39, 44-49 (1993) [hereinafter Vázquez, Self-Executing Character]; Carlos Manuel Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1101-1110 (1992) [hereinafter Vázquez, Treaty-Based Rights]. Hereinafter, I shall discuss primarily my own positions on the issues Yoo discusses. I shall refer to the writings of other scholars where appropriate, but mostly to explain how our positions appear to diverge.

[6]See, e.g., Yoo, at ___; Restatement (Revised) of Foreign Relations Law of the United States, at ___; United States v. Postal, 589 F.2d 862, 878 (5th Cir.), cert. denied 444 U.S. 832 (1979); In re Alien Children Educ. Litig., 501 F. Supp. 544, 590 (S.D. Tex., 1980), aff’d on other grounds sub nom. Plyler v. Doe, 457 U.S. 202 (1982); Henkin, supra note 4 at 203-204; J.W. Peltason, Corwin and Peltason’s Understanding the Constitution 102-103 (6th ed., 1973); Alona E. Evans, Some Aspects of the Problem of Self-Executing Treaties, 45 Proc. Am. Soc’y Int’l L. 66, 68 (1951); John H. Jackson, United States, in The Effect of Treaties in Domestic Law 141, 145-46 (1987); Geoffrey R. Watson, The Death of Treaty, 55 Ohio St. L.J. 781, 831 (1994). Compare Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) (because “the Convention is a self-executing treaty,” “no domestic legislation is required to give [it] the force of law in the United States”), with United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (suggesting that a treaty’s self-executing character and its status as “law of the land” are separate questions).

[7]See Paust, supra note 4, 782-83.

[8]The approach I have followed resembles that elaborated by Richard Fallon in, A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987). See Vázquez, Treaty-Based Rights, supra note 6, at 1114 n.126.

[9]Yoo, supra note 1, at 19.

[10]To the extent I have succumbed to the temptation, I have confined my discussions to footnotes. My discussion of specific statements should not be interpreted as agreement with Professor Yoo’s interpretations of other statements.

[11]U.S. Const. art. VI, cl. 2.

[12]This was already apparent in his work on war powers, where he has attempted to show that the clause giving the Congress the power to declare war does not inhibit the President from employing troops in war without a prior declaration. Yoo reads the clause instead as merely giving the Congress the power to recognize (or not) that a state of war exists and to bring about the legal effects that follow from a declaration to that effect. See generally, John C. Yoo, Part 1, Clio at War: The Misuse of History in the War Powers Debate, 70 U. Colo. L. Rev. 1169 (1999); John C. Yoo, The Continuation of Politics By Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167 (1996).

[13]Yoo, supra note 1, at 3.

[14]Henkin, supra note 4, at 20, quoted in Yoo, supra note 1, at 15.

[15]What is odd is Professor Henkin’s suggestion that the Supremacy Clause had been “interpreted” to mean that treaties are law.

[16]See Yoo, supra note 1, at 3, 15-19.

[17]Yoo, supra note 1, at 17.

[18]Actually, as discussed below, his reading of the clause is even weaker, for he clearly contemplates that the Congress would have discretion to pass such legislation or not. See infra at ___.

[19]This is by no means an inherent feature of Constitutions or statutes. One can envision a regime in which a statute is passed but doesn’t have certain of the effects we normally associate with supreme law until some other legal act is performed. Indeed, our Framers considered and rejected a system in which the Constitution and federal statutes would not necessarily have had the effect of nullifying inconsistent state laws, but a separate act of the legislature would have been required to “negative” a state law. Under such a system, federal statutes could well be described as non-self-executing on the question of preemption. Admittedly, some of the Framers in the debate about this proposal argued that the negative was unnecessary because state judges would consider invalid a state law that conflicted with federal laws. These arguments may have assumed the adoption of the supremacy clause, a version of which had already been proposed, or they may have been intended as an argument for the adoption of such a clause. See Vázquez, Treaty-Based Rights, supra note 6, at 1106 n. 91, 94. They might instead have reflected the speakers’ view that federal statutes and treaties would have preempted state law even if the Supremacy Clause had not been adopted. The suggestion that this is an inherent attribute of a federal statute or treaty is refuted by Yoo’s own showing that the British at the time (and certainly today) have a different system. These statements are thus best understood as an argument that federal statutes and treaties would have such effect in any well-functioning federal system.

[20]U.S. Const. art. I, § 1.

[21]U.S. Const. art. II, § 1.

[22]U.S. Const. art. III, § 1.

[23]See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 512-513 (1868).

[24]For a discussion of the pedigree of intratextual arguments of the sort I make in this paragraph, see Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999).

[25]The Restatement makes clear that “it is the implementing legislation, rather than the agreement itself, that is given effect as law in the United States,” for non-self-executing treaties. Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h (1987).

[26]U.S. Const. art. I, § 8, cl. 18.

[27]Yoo, supra note 1, at 17.

[28]U.S. Const. art. 1, § 18, cl. 18 (“[Congress shall have the power] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”). This is the clause that has been understood to give the Congress the power to pass statutes implementing non-self-executing treaties. See Missouri v. Holland, 252 U.S. 416, 432 (1920).

[29]See, e.g., United States v. Alaska, 521 U.S. 1, 59 (1997); Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995); United States v. Menasche, 348 U.S. 528, 538-39 (1955); Montclair v. Ramsdell, 107 U.S. 147, 152 (1882); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“It cannot be presumed that any clause of the Constitution is intended to be without effect.”). See also, Douglas G. Baird, Bankruptcy Procedure & State-Created Rights: The Lessons of Gibbons & Marathon, 1982 Sup. Ct. Rev. 25, 30; Maurice J. Holland, The Modest Usefulness of DOMA Section 2, 32 Creighton L. Rev. 395, 397 (1998).

[30]See Vázquez, Self Executing Character, supra note 6, at 46-47 (concluding that this argument must be rejected, “if only on textual grounds”).

[31]For doctrinal reasons, I ultimately accept that the treaty-makers have the power to determine in certain circumstances that a treaty shall not have the force of domestic law. See infra at ___. But the tension between this power and the Supremacy Clause’s text, in my view, requires that the Supremacy Clause remain the default rule and that the treatymakers’ power to countermand it be strictly limited.

[32]Cf. Khaldoun A. Baghdadi, Note, Apples and Oranges – The Supremacy Clause and the Determination of Self-Executing Treaties: A Response to Professor Vázquez, 20 Hastings Int’l & Comp. L. Rev. 701 (1997) (arguing that Supremacy Clause has no bearing on whether a treaty is self-executing).

[33]See Yoo, supra note 1, at 11 (citing Restatement (Third) of the Foreign Relations Law of the United States § 111(4)(a) & cmt. h (1987)).

[34]Fallon, supra note 16, at 1286.

[35]The term has sometimes been used by the lower courts in a broader sense, to include treaties that do not create a private right of action. See Vázquez, Four Doctrines, supra note 6, at 719. As I have written elsewhere, the term “non-self-executing” is ambiguous enough to encompass such treaties, but a treaty that is non-self-executing in this sense may still be enforceable in the courts in certain circumstances. Id. at 720. The Restatement’s conclusion that non-self-executing treaties are not the law of the land is plausible only because it takes the position that the question of a treaty’s self-executing nature is distinct from the question whether it creates a cause of action. Restatement (Third) of the Foreign Relations Law of the United States § 111 cmt. h (1987). Professor Yoo approves of the cases equating the self-execution issue with the right of action issue. See Yoo, supra note 1, at 14-15. His position that non-self-executing treaties lack domestic legal force suggests that he thinks that a treaty that does not create a private right of action is not judicially enforceable in any circumstances. If offered as a description of current doctrine, his claim is inaccurate; if offered as a proposal for doctrinal evolution, the suggestion makes no sense. See infra at ____. In discussing the claim that a treaty that is non-self-executing lacks the force of domestic law, I will use the term non-self-executing to refer only to non-self-executing treaties that are not judicially enforceable under any circumstances – that is, the first three categories described in Four Doctrines.

[36]See, e.g., The Federalist No. 15, at 110 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[37]See Vázquez, The Constitution as Law of the Land: The Supremacy Clause and Judicial Review (unpublished manuscript).

[38]Professor Yoo does suggest in passing at one point that the fact that a norm is not judicially enforceable does not mean that it is not law in some sense. Yoo, supra note 1, at 19. That he consistently equates a non-self-executing treaty with one that does not have domestic legal force indicates that he has not quite convinced himself of that proposition.

[39]See Printz v. United States, 521 U.S. 898, 972 (1997) (Souter, J., dissenting).

[40]Given the requirement of Senate consent of treaties, however, it is easy to see why this power was never used in this way.

[41]Treaty of Amity, Commerce and Navigation, Nov. 19, 1794, U.S.-U.K., 8 Stat. 116, 120.

[42]5 U.S. (1 Cranch) 137, 170 (1803).

[43]This principle has produced a great deal of confusion among the lower courts with respect to the standing of individuals to enforce treaties in the courts. Some courts have denied relief to individuals based on the notion that treaties, as a matter of international law, confer rights only on states. Of course, if this were relevant, treaties would never be enforceable by individuals in our courts. I have argued elsewhere that individuals generally lack “rights” under treaties as a matter of international law only in the sense that they generally lack standing to enforce the correlative obligations of states at the international plane. The Supremacy Clause’s declaration that treaties are domestic law was designed to make treaties enforceable at the domestic plane, and since the role of the courts at the domestic plane is to enforce the rights of individuals, the Supremacy Clause is best read to give individuals standing to enforce treaties that obligate the state to treat them in a given way. See generally Vázquez, Treaty-Based Rights, supra note 6, at 1133-41. Thankfully, there is no need to address the standing issue here. A treaty that is not self-executing, as Professor Yoo uses the term, is not enforceable in the courts at the behest of anyone, presumably including other nations. I invoke Chief Justice Marshall’s dictum about the role of the courts only insofar as it tells us, indirectly, that a treaty is not judicially enforceable if it does not establish obligations.

[44]See INS v. Stevic, 467 U.S. 407, 428 n.22 (1984) (Article 34 of Refugee Convetion is “precatory and non-self-executing.”).

[45]Baker v. Carr, 369 U.S. 186, 223 (1962).

[46]Head Money Cases, 112 U.S. 580, 598-99 (1884).

[47]See Baker, 369 U.S. at 218-229; Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 140-51 (1912).

[48]See Nixon v. United States, 506 U.S. 224, 228 (1993).

[49]The nonjusticiability of disputes about whether the constitutional norms regulating the amendment process have been complied with have been defended on structural grounds. See Fritz w. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 Yale L.J. 517, 598 (1966). See also, Coleman v. Miller, 307 U.S. 433, 457 (Black, J., concurring).

[50]Explaining the nonjusticiability of such treaties on this ground would mean extracting from the Marbury dictum the principle that domestic courts do not enforce the rights of sovereign states. But cf. Pfizer, Inc. v. Government of India, 434 U.S. 308, 318-19 (1978).

[51]Professor Yoo argues that separation of powers notions require the conclusion that treaties always or presumptively are judicially unenforceable in the absence of implementing legislation. I address these separation of powers arguments in Part IV.

[52]Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

[53]Id. at 314-15.

[54]This characterization of the holding comes from the later case of United States v. Percheman, 32 U.S. (7 Pet.) 51, 89 (1833).

[55]27 U.S. (2 Pet.) at 315.

[56] 32 U.S. (7 Pet.) 51 (1833).

[57]Id. at 88.

[58]Though this category of non-self-executing treaties is tolerably reconcilable with the Supremacy Clause, determining whether a treaty falls in this category raises monumentally complex interpretive issues. The complexity stems from the fact that some countries have constitutional rules under which treaties always or require implementing legislation, regardless of the parties’ intent. See generally Vázquez, Four Doctrines, supra note 6, at 704.

[59]It is by no means clear, however, that the declarations were intended to have such effect. See David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129 (1999).

[60]Henkin, supra note 4, at 202.

[61]2 Documentary History of the Ratification of the Constitution 518 (statement by Wilson).

[62]Yoo, supra note 1, at 2 & n.15.

[63]See, in particular, Vázquez, Four Doctrines, supra note 6, at 708 n.61.

[64]See id. at 708 n.61. But see Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 Mich. J. Int’l L. 301, 322-23 & n.108 (1999) (concluding that such declarations are invalid and severable from the rest of the treaty).

[65]And manifest that intent in the constitutionally appropriate way.

[66]See Alfred Hill, Constitutional Remedies, 69 Colum L. Rev. 1109, 1112 (1969).

[67]See Vázquez, Four Doctrines, supra note 6, at 719.

[68]I refer here to the last-in-time rule.

[69]See, e.g., Yoo’s discussion of statements by Wilson and Johnson at the Philadelphia convention, discussed supra note ___. See also, Yoo, supra note 1, at 8, 51, 89-90.

[70]See, e.g., El Al Airlines, Ltd. v. Tseng, 119 S. Ct. 662, 668 (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991); Chan v. Korean Airlines, Ltd., 490 U.S. 122, 123-24 (1989); United States v. Stuart, 489 U.S. 353, 366 (1989); Air France v. Saks, 470 U.S. 392, 396 (1985); Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252, reh’g denied, 467 U.S. 1231 (1984); Bacardi Corp. v. Domenech, 311 U.S. 150 (1940); Santovincenvo v. Egan, 284 U.S. 30 (1931); Ford v. United States, 273 U.S. 593 (1927)); Asakura v. City of Seattle, 265 U.S. 332 (1934); Holden v. Joy, 84 U.S. 211 (1872); United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).

[71]See, e.g, United States v. Stuart, 489 U.S. 353, 368 (1989); Bacardi Corp. v. Domenech, 311 U.S. 150, 163 (1940); Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933); Nielson v. Johnson, 279 U.S. 47, 51 (1929); Jordan v. Tashiro, 278 U.S. 123, 127 (1928); Asakura v. Seattle, 265 U.S. 332, 342 (1924); Tucker v. Alexandroff, 183 U.S. 429, 437 (1902); De Geofroy v. Riggs, 133 U.S. 258, 271 (1890); Chow Heong v. United States, 112 U.S.536, 540 (1884); Hauenstein v. Lynham, 100 U.S. 483, 487 (1879); Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 249 (1830).

[72]As Professor Flaherty shows, the statements do not in fact bear such a reading.

[73]See Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1988).

[74]See Vázquez, Breard, Printz, and the Treaty Power, 70 U. Colo. L. Rev. 1317, 1336-43 (1999).

[75]See, e.g., El Al Israel Airlines, Ltd. v. Tseng, 119 S. Ct. 662, 668 (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530 (1991); Chan v. Korean Airlines, Ltd., 490 U.S. 122, 123-23 (1989); United States v. Stuart, 489 U.S. 353, 366 (1989); Air France v. Saks, 470 U.S. 392, 396 (1985); Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252, reh’g denied, 467 U.S. 1231 (1984); Bacardi Corp. v. Domenech, 311 U.S. 150 (1940); Cook v. United States, 288 U.S. 102, 119 (1933); Santovincenzo v. Egan, 284 U.S. 30 (1931); Ford v. United States, 273 U.S. 593, 618 (1927); Holden v. Joy, 84 U.S. 211 (1872); Cortes v. American Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir., 1999); Xerox Corp. v. United States, 41 F.3d 647, 652 (Fed. Cir., 1994); Blanco v. United States, 775 F.2d 53, 60 (2d Cir., 1985); Edwards v. Carter, 580 F.2d 1055, 1058-59 (D.C. Cir., 1978); Smith v. Canadian Pacific Airways, 452 F.2d 798, 801-02 (2d Cir., 1971); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 640 & n.9 (2d Cir., 1956); Master v. Cribben & Sexton Co., 202 F.2d 779, 783 (C.C.P.A., 1953); American Express Co. v. United States, 4 Ct. Cust. App. 146 (1913).

[76]See Yoo, supra note 1, at 17.

[77]See supra at ___ (discussing necessary and proper clause).

[78] See cases cited supra note 95.

[79]Yoo, supra note 1, at 105.

[80]See id. at 36.

[81]See id. at 89-90.

[82]As Professor Flaherty has shown, however, these proposals largely took the form of suggested amendments, thus implying that the unamended Constitution did not give the House such a role. Flaherty, supra note 3, at 59.

[83]Foster v. Nielson, 27 U.S. (2 Pet.) 253, 314 (1829).

[84] Id.

[85] Yoo, supra note 1, at 100-101 (footnotes omitted).

[86]Justice Iredell’s opinion in Ware v. Hylton is similarly unrecognizable from Yoo’s description of it. My discussion of the opinion, which Yoo regards as the strongest evidence for the “internationalist” position, appears at Vázquez, Treaty-Based Rights, supra note 6, at 1110-13.

[87]See Vázquez, Four Doctrines, 89 Am. J. Int’l L. 702 n.36. This is far from saying, however, that treaties can be enforced in the courts only if they “are specifically directed” to the judiciary or if the text “clearly indicates judicial enforcement.” Yoo, supra note 1, at 102, 103. The opinion says nothing even remotely resembling that.

[88]United States v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833)

[89]Webster’s New Universal Unabridged Dictionary, definition 1(2d ed. 1983) (emphasis supplied). (The second definition is “to specify as an essential condition of or requisite in an agreement.”). On the term’s denotation of specificity, see also, e.g., Jane Austen, Sense & Sensibility at ___ (1796) (“He did not stipulate for any particular sum, my dear Fanny; he only requested me, in general terms, to assist them.”)

[90]See Vázquez, Four Doctrines, 89 Am. J. Int’l L. at 716 & n.96.

[91]This is Yoo’s characterization. Yoo, supra note 1, at 102. I have characterized it as an alternative holding. See Vázquez, Four Doctrines, supra note 6, at 700 n. 27, 702 n.35. Yoo criticizes me for “missing” the assertedly “significant” connection between the Court’s first alternative holding in Foster and its self-execution holding. I still don’t see a connection. Vázquez, Four Doctrines, supra note 6, at 702 n.35. It is in the nature of alternative holdings that each assumes the incorrectness of the other. The “connection” Yoo apparently sees is in fact merely a parallel: both holdings, in Yoo’s view, reflect deference to the political branches in foreign affairs. But, contrary to Yoo’s suggestion, the court in Foster does not suggest that the courts are to defer to the Executive’s interpretation of treaties that are the law of the land. See infra. Even if the court had articulated a rule of deference to the Executive in treaty interpretation, it is hard to see the relevance of this to the self execution issue. The Court does hold that, when a treaty promises legislation, it is addressed to the legislature. Beyond this, the decision tells us nothing about the allocation of powers among the branches. It certainly does not hold that any “types” of treaty provisions necessarily require implementation other than those that by their terms stipulate for legislation. See Yoo, supra note 1, at 102.

[92]Yoo relies in addition on language from Head Money Cases and Whitney v. Robinson that indicates, in his view, that treaties “were generally not self-executing” and as contemplating that “[a] desire by the political branches for self-execution would be made clear in the text of the treaty.” Yoo, supra note 1, at 11. But the language from these cases that he reads as suggesting that treaties generally are not self-executing actually merely points out that the domestic courts will obviously not get involved in international claims between states regarding treaty violations -- meaning claims at the international plane, not cases in the domestic courts raising international issues. These cases do not say, as Yoo suggests, that the courts must defer to the political branches in cases involving treaties. They only go so far as to recognize that the courts must respect a decision to violate a treaty made by particular combinations of the political branches -- i.e., a majority of both Houses of Congress plus the President, or a supermajority of both Houses without the President. As noted, had these courts embraced Yoo’s position that all treaties are non-self-executing, there would have been no need to articulate or rely on a last in time rule. Yoo claims that these cases “linked self-execution to the specific creation of individual rights.” But the concept of specificity makes no appearance in any of these cases; they appear to have been interpolated by Yoo. The cases do suggest that the courts’ role is to enforce individual rights created by treaty. This raises but does not help answer the question of when a treaty creates individual rights. In Head Money Cases, the Court indicated that treaties may be enforced by individuals when they prescribe a rule from which the rights of individuals may be determined. As I have noted, this appears to reflect the requirement that treaty provisions be mandatory and sufficiently determinate that courts can give them effect without difficulty. I discuss the issue more generally in Vázquez, Treaty-Based Rights, supra note 6, at 1123-25, 1128-33. Suffice to say that Yoo reads far more into the dicta in these cases about self-execution than their text will bear.

[93]See Yoo, supra note 1, at 12 & n.71.

[94] Thus a treaty like the Warsaw Convention or the Torture Convention would be self-executing.

[95]Yoo, supra note 1, at 95.

[96]Yoo, supra note 1, at 14.

[97] Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423-24 (1987); see Vázquez, 92 Colum. L. Rev. at ___.

[98]The attempt to understand Professor Yoo’s understanding of the concept of non-self-execution is further complicated by his discussion of Justice Iredell’s opinion in Ware v. Hylton and the subsequent negotiation of the Jay Treaty. Yoo states that Iredell’s opinion stood for the proposition that the 1783 treaty was non-self-executing. Yoo, supra note 1, at 95. But Iredell merely interpreted the treaty not to apply to debts that had already been discharged by the time of the treaty’s application. The disagreement between Iredell and the majority in Ware was thus about what the treaty required on the merits, not whether it was operative as law without prior implementation, or whether it conferred a cause of action, or anything that might plausibly be regarded as a self-execution issue. Yoo also suggests that John Jay’s agreement with the British to establish an international tribunal for the resolution of certain disputes is somehow inconsistent with the prevailing view or with the concept of self-execution. It is not. Indeed, a self-executing treaty could facilitate such a regime by requiring courts to dismiss suits that under the treaty are subject to compulsory arbitration, or to enforce the decisions of such a tribunal. [Cf. New York Convention]

[99]That he would find a treaty to be self-executing only if it clearly states that it creates a private right of action is suggested by his discussion of Amerada Hess, Yoo, supra note 1, at 12. Elsewhere he says that a treaty that is non-self-executing does not have the force of domestic law. Id. at 3, 105. That he would combine the two theories in the manner suggested in the text is less clear, but suggested by his statement that the “private right of action” analysis is a refinement of the intent-based analysis. Id. at 12. (This combination of the two would conflict with his treatment of Ware, however.)

[100]I discuss the issue in Vázquez, Treaty-Based Rights, supra note 6, at 1150-51 & n.288.

[101]Yoo, supra note 1, at 14.

[102]Vázquez, Treaty-Based Rights, supra note 6, at 1157-62.

[103]Yoo, supra note 1, at 19.

[104]See Yoo, supra note 1, at 17.

[105]Id.

[106]See, e.g., Boos v. Barry, 485 U.S. 312, 323-324 (1988).

[107]See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).

[108]See Head Money Cases, 112 U.S. 580, 599 (1884); Whitney v. Robinson, 124 U.S. 190, 194 (1888).

[109]See DeCoteau v. District County Court, 420 U.S. 425, 443 (1975).

[110]See Van Der Weyde v. Ocean Transp. Co., 297 U.S. 114, 116-118 (1936).

[111]See supra at ____.

[112]See Goldwater v. Carter, 444 U.S. 996, 1007 (1979) (Brennan, J., dissenting).

[113]See id. at 1002 (Rehnquist, J., plurality opinion) (whether a treaty has been properly terminated is a political question). But c.f., id. at 998 (Powell, J., plurality opinion) (that question may be justiciable in certain circumstances).

[114]Yoo, supra note 1, at 13-15, 105.

Professor Yoo’s exclusive focus on horizontal separation of powers suggests that he might permit even non-self-executing treaties to be enforced in court against states, at least at the behest of the federal government. But this would be inconsistent with his recognition that non-self-executing treaties lack domestic legal force. State law cannot be preempted by federal norms lacking the force of law. Perhaps he would construe a non-self-executing treaty as a delegation of law-making power to the Executive Branch. This would solve some of the problems just noted, as it would allow the Executive Branch to issue a regulation implementing the treaty. Inconsistent state laws would be preempted by the regulation, and their enforcement could be enjoined by a court at the behest of the federal government. There is little doubt that a treaty could delegate lawmaking power to the Executive in this way, but Professor Yoo hasn’t explained the basis for construing treaties to delegate lawmaking power to the Executive even when they are silent on the issue. Indeed, it is not clear that Professor Yoo would approve of such a presumption, as it would not offer what he sees as the principal benefit of the presumption he advocates -- the preservation of a role for the most representative of the branches, the House.

[115]Id. at 11 (quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829).

[116]Id. at 7.

[117]Id. at 102.

[118]If the courts were required to defer to the Executive’s interpretation of treaties, those who were litigating against the Executive in Sale v. Haitian Centers Council, 509 U.S. 155 (1993), and United States v. Alvarez-Machain, 504 U.S. 655 (1992), and many other cases, could have been quickly dispatched. Instead, their arguments were considered on their merits without any suggestion of deference.

[119]Yoo, supra note 1, at 11.

[120]For example, Yoo cites Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428 (1989), for the proposition that the Supreme Court has now adopted the “private right of action” view of the non-self-execution doctrine. Yoo, supra note 1, at 12. That case involved the question whether, by becoming a party to certain treaties, Argentina had waived its sovereign immunity. The treaties said nothing about sovereign immunity. The Court held that the treaties did not withdraw Argentina’s immunity because they “only set forth substantive rules of conduct and state that compensation shall be paid for certain wrongs. They do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts.” This statement has no implications for the self-execution issue. It merely recognizes that a treaty that does not address the suability of a foreign state in U.S. courts does not remove such a state’s immunity. For the proposition that the Court now equates the self-execution issue with the private right of action issue, Professor Yoo relies on the Court’s “telling” citation of Foster v. Neilson and Head Money Cases after the statement quoted above. Why the Court cited these cases for the proposition is admittedly mysterious. But to draw the conclusions from it that Yoo draws is a stretch, to say the least. Perhaps Chief Justice Rehnquist or his clerk meant what Yoo says when they inserted the “cf.” cite to Foster and Head Money Cases, but it seems unreasonable to attribute such a position to the Court as a whole.