US
CONSTITUTION &
INT’L LAW
Prof David K. Linnan
USC LAW # 783
Unit Two
INT’L IN DOMESTIC LAW
Remember 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 8
Congress 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 FOCI
Note 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 NOTE
TRADITIONAL 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 NONSEPARATION 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 NONSELFEXECUTING BY SIMPLE RESERVATION OR
DECLARATION? THE EXECUTIVE?
CONST. TREATIES
HOW 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./ORDER
What 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./ORDER
WHAT 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/CONGRESS
Banco 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?