US CONSTITUTION &

INT’L LAWProf David K. Linnan

USC LAW # 783

Unit Two

INT’L IN DOMESTIC LAWRemember that the US Constitution (1789) is an

18th century document, so that public int’l law (aka Law of Nations) only co-exists in its traditional form.

[Where to find the 17th & 18th century version of public international law, and separately early US views of it?]

Asking where to find the Law of Nations in the Constitution is essentially asking where does one find national security, foreign affairs and foreign commerce, and who is in charge of each?

INT’L LAW &US CONSTITUTION

art I, sec 8Congress shall have the power …

To regulate Commerce with foreign Nations...

To establish a uniform Rule of Naturalization…

INT’L LAW &US CONSTITUTION

art I, sec 8 (cont’d)Congress shall have the power …

To define and punish Piracies and Felonies committed on the high Seas, and offenses against the Law of Nations...

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…

INT’L LAW &US CONSTITUTION

art I, sec 10

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal….

No State shall, without the Consent of Congress … enter into any Agreement or Compact … with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

INT’L LAW &US CONSTITUTION

art II, sec 2

The President shall be Commander in Chief….

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors…, Consuls….

INT’L LAW &US CONSTITUTION

art II, sec 3

[The President] shall receive Ambassadors and other public Ministers….

[The President] shall take Care that the Laws be faithfully executed….

INT’L LAW &US CONSTITUTION

art III, sec 2

The judicial Power shall extend to all Cases…arising under…Treaties-- to all Cases affecting Ambassadors, other public Ministers and Consuls;-- to all Cases of admiralty and maritime Jurisdiction;… To Controversies…between a State, or the citizens thereof, and foreign States, Citizens or Subjects.

INT’L LAW &US CONSTITUTION

art III, sec 2 (cont’d)

In all Cases affecting Ambassadors, other Public Ministers and Consuls…,the supreme Court shall have original Jursidiction....

INT’L LAW &US CONSTITUTION

art VI

[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….

CONSTITUTIONAL FOCI

Note in constitutional sense issues:

1. Who is in charge of defense?(Exec branch under Commander in Chief language vs. Congress under power of purse

& to declare War—War Powers Act)

2. Who is in charge of foreign affairs?(Exec branch in appointing & receiving

ambassadors plus negotiating treaties vs. Congress under advice and consent on treaties,

ambassadors plus power of purse)

CONSTITUTIONAL FOCINote in constitutional sense issues (cont’d):

3. What is the position of the judiciary if the other two branches exist in a state of tension to extent they have close or overlapping authority in areas of defense & foreign affairs? What is the judiciary supposed to do when they fight?

4. Look at the Constitution and you see the residual treatment of the States’ foreign affairs authority, etc. being dismantled in provisions limiting their power to make int’l agreements, repel invasions under exigent circumstances, etc.

HISTORICAL NOTETRADITIONAL BRITISH VIEW THAT THE LAW OF NATIONS WAS PART OF

THE COMMON LAW—WHY?

IF PUBLIC INTERNATIONAL LAW ENTERED US LAW THROUGH THE COMMON LAW, WHERE WOULD THAT PUT IT IN OUR LEGAL SYSTEM?

[What did Chancellor Kent think? Is this a new question?]

WHAT IS THE BEARING OF THE COMPLICATION THAT WE DID NOT GO DIRECTLY FROM 13 COLONIES STATUS TO US CONSTITUTION, BUT INTERLUDE OF ARTICLES OF CONFEDERATION (SO TWO STAGE PROCESS)?

[Who remembers the Articles of Confederation other than Chancellor Kent?]

IF THE MAJOR FOCUS IS AT THE LEVEL OF SEPARATION OF POWERS ANALYSIS FOR FOREIGN RELATIONS LAW, WHAT HAPPENS TO STATES AS SOURCE OF LAW-- MAYBE HISTORICALLY, IDEA OF NON-SEPARATION OF LAWS OF REASON AND NATURE IN 18TH CENTURY PUBLIC LAW?

[What did this look like, looking forwards from then?]

CONST. TREATIES

MISSOURI V.HOLLAND, 252 U.S. 416 (1920)

WHAT HAPPENED FACTUALLY & RULE?

WHAT IS HOLMES DISCUSSION CONCERNING SUPREMACY CLAUSE ABOUT?

WHAT IS THE PROPER SUBJECT OF A TREATY AND WHY?

CONST. TREATIES

WHITNEY V. ROBERTSON, 124 U.S. 190 (1888)

What is the purpose of such a last in time rule in a pure domestic law dispute? In the int’l law setting?

Is it inconsistent with the constitutional scheme in which the President is in charge of unmaking treaties in terms of repudiation? What of the idea that the last in time rule undercuts a treaty given to the Senate to approve/disapprove by supermajority and the President has not yet unmade, yet the House and Senate may undo by simple majority?

Does the int’l law obligation disappear?

CONST. TREATIES

FOLLOWING FOSTER AND ELAM V. NEILSON, 27 U.S. 253(1929), WHAT IS A SELF-EXECUTING TREATY?

CAN YOU THINK OF CATEGORIES OF THOSE TREATIES REQUIRING FURTHER ACTION OR NOT?

IS THE TEST AN OBJECTIVE ONE, OR CAN THE CONGRESS (SENATE) MAKE A TREATY NON-SELFEXECUTING BY SIMPLE RESERVATION OR DECLARATION? THE EXECUTIVE?

CONST. TREATIESHOW DO CONSTITUTIONAL TREATY MECHANICS

WORK? (PRESENTMENT BY PRESIDENT AFTER NEGOTIATION WITH FROEIGNERS, RESERVATIONS RETURNED BY SENATE, PRESIDENT DECIDING ON TAKING BACK TO FOREIGNERS AS QUALIFIED)

WHAT IS THE EFFECT OF LAST IN TIME RULE ON INT’L LAW OBLIGATIONS?

WHAT IS THE EFFECT ON DOMESTIC OR INT’L LAW OBLIGATIONS OF RESERVATIONS? INTERPRETATIONS BY EXECUTIVE OR CONGRESS (ABM TREATY & STAR WARS)

TREATY VS. EXEC. AGMT.

WHAT IS DIFFERENCE BETWEEN ART II TREATY, AN EXECUTIVE AGREEMENT CONCERNING FOREIGN AFFAIRS/NAT’L DEFENSE (PLENTY IN MIDDLE EAST CONTEXT) AND AN INTERNATIONAL LAW AGREEMENT?

WHAT IS THE DIFFERENCE BETWEEN AN ART II TREATY AND A TREATY FOR PUBLIC INT’L LAW PURPOSES (AS TALKED ABOUT UNDER SOURCES DOCTRINE)?

WHY HAVE EXECUTIVE AGREEMENTS PROLIFERATED IN FOREIGN AFFAIRS, AND IS IT A GOOD IDEA?

TREATY VS. EXEC. AGMT.

REID V. COVERT, 354 U.S. 1 (1957)

What is a Status of Forces Agreement, and why?(SOFA, think of the periodic disputes re jurisdiction in Okinawan rape cases)

What happened factually? Apparent rule?

Has this laid to rest Holmes’ Supremacy Clause arguments in Missouri v. Holland?

EXEC. AGMT./ORDERWhat is the legal character of an executive agmt/order.

Do they have the force of law, under what circumstances and why?

(in background US v. Curtiss-Wright Corp., 299 U.s. 304 (1936) and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952))

REMEMBER WHY EXEC. AGMTS.HAVE SEEMINGLY OVERTAKEN TREATIES; IS THIS MORE CONSISTENT WITH ARGUMENTS ABOUT FAST MOVING WORLD OVERTAKING LEGISLATIVE DISCUSSIONS, OR IS IT MORE NECESSITY OF SPEAKING IN A UNIFIED FASHION VIA PRESIDENT?

EXEC. AGMT./ORDERWHAT HAPPENED IN EACH OF

DAMES & MOORE V. REGAN, 453 U.S. 654 (1981) AND COSBY V. NAT’L FOREIGN TRADE COUNCIL, 530 U.S. 363 (2000)?

IS THE ANALYSIS THE SAME AND STILL CONSISTENT WITH CURTISS-WRIGHT & YOUNGSTOWN?

TO WHAT EXTENT DO YOU THINK THE CASES WOULD HAVE TURNED OUT THE SAME WAY OR DIFFERENT ABSENT A CONGRESSIONAL ENACTMENT (I.E., BASED ON REISDUAL PRESIDENTIAL AUTHORITY IN FOREIGN AFFAIRS/NAT’L DEFENSE?

JUDICIARY/EXEC/CONGRESSBanco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964)

What happened?

What is the Act of State doctrine?

Is it constitutionally compelled as a matter of separation of powers, etc., or is it simply a conflicts rule?

What does the case tell us about the judiciary’s position in a case with foreign affairs overtones?