CON LAW OF U.S. FOREIGN RELATIONS OUTLINE
Professor Waters, Fall 2007
I. Historical and Conceptual Foundations:
A. Constitutional Background:
1. Declaration of Independence: Discuss about how to get help from Continental Europe if still
technically Subjects of Great Britain, b/c no State would enter into treaties or Trade so long as the
U.S. still was subject to the Crown. Called for Independence as the only means by which foreign
allies can be obtained.
a) The next question then was, who has the foreign relations power, the Continental Congress or the
States? Ben Franklin was the C.C.‟s official rep. and treaty negotiator, but each state was
claiming their governor was commander-in-chief and several States were making their own
agreements w/ Europe. Despite these attempts by States, the C.C. conducted F.R. and signed
two treaties w/ France – alliance & commerce.
b) These treaties w/ France – first official recognition of the U.S. as an independent nation.
2. Articles of Confederation: Adopted 1777, approved 1781. Gave broad F.R. power to “the united
states in congress assembled.” C.C. was given the “sole and exclusive power of determining peace
and war, of sending and receiving ambassadors, and of entering into treaties and alliances.” States
were forbidden for engaging in certain F.R. activities w/o Congress‟s consent. HOWEVER, there
was widespread agreement that the structure and power of the national gov‟t under the A.o.C. were
insufficient to manage F.R.
3. U.S. Constitution: (Articles I, II, III, and VI on handout)
4. What to take from the Helvidious/Pacificus Debate: Turns on different assumptions.
a) Hamilton thinks the Pres is generally in control of foreign relations, subject only to specific
exceptions granted to Congress which will be strictly construed.
b) Madison says foreign affairs powers have been carefully parceled out to the different branches
and you look at what has been given out and decide what those mean for the ones that haven‟t
c) Recurring theme throughout the course: whether we should construe the constitution as executive
control or congressional control over foreign relations.
d) What this illustrates is that the Const. was always a negotiated document, so some founders did
want something that some others didn‟t and therefore even a few years out they weren‟t in
agreement about what powers were given to the exec or congress for foreign affairs.
B. Neutrality Controversy of 1793: A violent revolution was initiated in France (against Austria, G.B.,
Spain and Holland); the treaties w/ France said the U.S. had to protect French possessions in America,
allow French warships to bring prizes to the U.S., and disallow French enemies from using U.S. ports
for selling prizes. Washington was determined to stay out of the European war – “it would be unwise to
involve ourselves in the contests of Euro. Nations, where our weight could be but small, tho‟ the loss to
ourselves would be certain.”
Proclamation of Neutrality: Washington declared the disposition of the U.S. to pursue a conduct friendly
and impartial toward the belligerent power, and to exhort and warn U.S. citizens to avoid all acts which
may contravene such disposition. Any citizen to does so anyway will not receive the protection of the
U.S. against punishment or forfeiture, and will prosecute all persons who violate the law of nations w/
respect to the powers at war.
Controversial for two reasons: 1) Not authorized by Congress; 2) Repudiation of U.S. treaty obligations
C. Nature of U.S. Foreign Relations Authority:
1. Ex Parte Merryman: 1861, pro-secession mobs tried to prevent Union troops from passing through
Baltimore to guard Washington D.C. Pres. Lincoln authorized the U.S. army to suspend the writ of
habeas corpus if there was any resistance to the military line btwn Philadelphia and Washington.
Merryman was picked up for suspicion of aiding the Confederacy, he petitioned Justice Taney for a
writ, which was granted, but the U.S. army ignored it.
a) Court: The clause of the Const. that authorizes the suspension of the writ is the 9th section of
Art. 1, devoted to the legislature. Taney can see no ground for supposing in any emergency that
the Pres. can authorize the suspension of the writ. Merryman was released on bail & never tried.
b) Delegated Powers Theory: National gov‟t only has those powers delegated to it by the Const.
itself. The founders intended to make a gov‟t of limited and enumerated powers.
(1) To get around – Pres have claimed this only applies to internal affairs. The individual states
don‟t get powers that deal with international.
(2) For Merryman – it‟s a domestic issue. There is a different set of rules for its own citizens
than there is for foreign nationals.
c) Lincoln‟s Response: “Are all the laws, save one, to go unexecuted, and the gov‟t itself go to
pieces, lest that one be violated?”
2. Chinese Exclusion Case (Chae Chan Ping v. U.S. (S.Ct. 1889)): 1888 fed statute prohibited Chinese
laborers from reentering the U.S. under certain circumstances. Issues: 1) Did the statute violate
treaties btwn the U.S. and China; 2) Did Congress have the authority to enact the statute?
a) Court: If there‟s a reason that Congress couldn‟t pass this statute, its b/c it was not w/in the
power of Congress to prohibit Chinese laborers who had left the U.S. to return. The gov‟t of the
U.S. can w/o controversy exclude aliens from its terr., that is an incident of every independent
nation. It doesn‟t matter whether we‟re at war w/ the country, the right to protect the security
and peace of the borders is for the national gov‟t to decide.
b) Const. Sovereignty Theory: If a country can‟t exclude other nationals, then they don‟t have any
power over their borders and their society. By forming a gov‟t that would be operated by a
sovereign national gov‟t it implicitly, as a whole, gave the power to the national gov‟t to exclude
foreigners, and do any of the things that countries normally do: acquire terr., etc. The Const‟s
grant of power to the national gov‟t is restricted only by the Const. itself.
(1) There‟s also an Art. 1, §8 argument (power to create uniform rule of naturalization), but its
too weak to bother with.
(2) Danger of this theory: raises the specter of unlimited fed gov‟t power in foreign affairs. The
founders set up a limited national gov‟t and vague broad sovereignty powers are too broad.
The purpose of a Const is to define and limit the powers of the central gov‟t. This is esp.
scary if the Court refuses to hear cases b/c of political question doctrine.
3. Carter v. Carter Coal Co. (S.Ct. 1936): Challenge to a 1935 fed statute that provided for est. of
minimum prices and collective bargaining in the coal industry.
a) Southerland: The statute exceeded Congress‟s authority under the Commerce Clause; The statute
cannot be upheld on the basis of a general federal power, thought to exist, apart from the specific
grants of the Const.
(1) The fed gov‟t does not have an inherent power that extends to purposes affecting the nation
that the several states can‟t handle, nor is there the related notion that Congress can enact
laws to promote the general welfare entirely apart from the powers in the Const. Goes on
about the importance of State‟s rights and that the federal gov‟t is only what was carved from
the general state powers.
4. U.S. v. Curtiss-Wright Export Corp. (S.Ct. 1936): Congress enacted a joint resolution that if the Pres.
found that a prohibition on arms sales to Bolivia or Paraguay would promote peace in the region and
made a proclamation to that effect, such sales would be illegal. Curtiss-Wright Corp. did just that,
and claims that the joint resolution had unconstitutionally delegated legislative power to the Pres.
a) This case took place during the big show-down btwn Roosevelt and the Court (Switch in time
saved 9). Sutherland took a 180 from his opinion in Carter Coal.
b) The whole aim of the resolution is to affect a situation entirely external to the U.S., falling w/in
the category of foreign affairs. If it were confined to internal affairs, and an invalid delegation of
power, would it nevertheless be sustained on the ground that its exclusive aim is to afford a
remedy within a foreign territory? The differences btwn the powers of the fed gov‟t in respect of
foreign or external affairs and those in respect of domestic or internal affairs:
(1) Internal Affairs: the fed gov‟t can exercise no powers except those specifically enumerated in
the Const., and such implied powers that are necessary and proper to carry into effect…is
only true in internal affairs. This doctrine only applies to the powers the states ever had.
(2) External Affairs: when the colonies separated from the Crown as a collective, they, acting as
a unit, took on the powers of external sovereignty from the Crown. When the external
sovereign of G.B. ceased it immediately passed to the Union. Therefore the investment in
the fed gov‟t w/ the powers of external sovereignty did not depend on the affirmative grants
in the Const. Even if the power to declare war and make treaties, etc., had never been
mentioned in the Const. they would have belonged to the national gov‟t as necessary
concomitants of nationality. They are found not in the Const., but in the law of nations.
(3) The Pres. alone has the power to speak or listen as a rep. of the nation. Makes treaties w/ the
advice and consent of the Senate, but he alone negotiations. In order for us to make effective
choices in int‟l relations, Congress needs to make effective legislation to see that our efforts
aren‟t thwarted, but the Pres. has secret sources and sensitive information and so Congress
shouldn‟t be required to lay down narrowly definite standards by which the Pres. is to be
governed (this would not be admissible for domestic affairs alone).
c) Extra-Const. Sovereignty Theory: Even if certain powers had never been mentioned in the
Const., they would have belonged to the national gov‟t as necessary concomitants of nationality.
They are found not in the Const., but in the law of nations.
a) Three theories concerning the source of fed F.R. power:
(1) Enumerated Powers: the fed gov‟t only has the F.R. powers delegated to it in the Const.
(Merryman), and powers that could be implied from the specific grants and from other const.
provisions (Carter Coal Co.)
(2) Sovereignty Theory: power is inhered in the sovereignty that is implicitly vested by the
Const. in the national gov‟t (the national gov‟t is the sovereign b/c the Const. says it is).
(Chinese Exclusion Case)
(3) Extra-Constitutional Theory: power is inhered in U.S. national sovereignty, but this theory
relies on extra-const. source such as the British crown or int‟l law. (Curtiss-Wright)
b) Sutherland articulated a theory that – fed power w/ respect to domestic affairs derives from the
Const. and is subject to const. limitations, while fed power w/ respect to foreign affairs has an
extra-constitutional source and is subject to significantly weaker const. constraints. Sutherland is
a strict constructionists and hated broad fed power in the context of the New Deal legislation.
c) There are many critiques of this theory that F.R. isn‟t bound by the Const. (bottom p. 34 – p. 35)
II. Courts and Foreign Relations: Are the Courts Precluded from Engaging in Foreign Relations?
(Jurisdiction, Stand/Ripe/Moot, FSIA and AoS Doctrine)
A. Jx. Over Foreign Relations Cases: Lack of national judiciary was a central defect in the Articles of
Confederation. Hamilton argued in Federalist No. 80 that a national judiciary was needed in order to
ensure adequate enforcement of treaty obligations, as well as uniformity in treaty interpretations.
1. Art. III does not require the creation of fed cts. other than the S.Ct., and Art. III has not been
construed as requiring that Congress to give the fed cts. all the power authorized by Art. III. But,
they were created and granted jx to hear various cases and controversies, just not all cases and
controversies under Art. III.
2. The most important categories of Art. III jx are: Federal Question Jx and Diversity Jx
a) Two foreign citizens do not satisfy even the minimal diversity requirements of Art. III, and to be
heard in fed ct., such suits must fall within some other category of Art. III jx (such as fed. ?)
b) It‟s murky though if “arising under the laws of the U.S.” includes CIL. Do cases that implicate
foreign affairs involve “federal common law” and therefore “arise under the laws of the U.S.”?
B. Justiciability: Standing, Ripeness, Mootness: Art. III allows for jx over “cases” and “controversies”
1. Raines v. Byrd (S.Ct. 1997): Line Item Veto Act of 1996 allowed the Pres. to cancel items in
appropriations bills after signing them into law. The Act provided that any member of Congress
could bring a lawsuit challenging the Constitutionality of the Act. 4 Senators did just that.
a) One element of the case-or-controversy requirement is that appellees have standing. In order to
meet that requirement a Π must allege personal injury fairly traceable to the Δ‟s allegedly
unlawful conduct and able to be redressed by the relief requested. Also requires that the Π have
suffered an invasion of a legally protected interest which is concrete and particularized.
(1) Injury is: personal, particularized, concrete and otherwise judicially cognizable.
b) Appellees have not been singled out for unfavorable treatment as opposed to other Members of
their respective bodies. Rather, its an institutional injury (diminution of leg. power) which
damages all Members of Congress.
c) Appellees also haven‟t been deprived of something to which they personally are entitled (such as
their seats in Congress to which they have been elected to). This claim doesn‟t belong to the
person, but to the position which would go to their successor if they retired.
d) Coleman v. Miller (S.Ct. 1939) upheld standing for legislators (Case where there was a deadlock
vote on an amendment and the Lieutenant Governor case a deciding vote). Standing was held in
this case b/c if their claim was correct, then their votes were deprived of all validity unlawfully.
This case stands for the proposition that legislators, whose votes would have defeated a piece of
legislation are nullified and the legislation enacted anyways, do have standing.
e) Here: The legislators have not claimed that they voted for a specific bill, that there were
sufficient votes to pass, and that the bill was nonetheless defeated. The Line Item Veto Act was
put to a vote, their votes counted, and they just lost. And even in subsequent legislation, they can
vote to pass or reject appropriations bills; can vote to repeal the LIVA; or can exempt a given
appropriations bill from the Act.
f) There‟s a big difference from complete nullification in Coleman and abstract dilution of power.
g) Souter Concurrence: Resolve the question of standing under more general separation of powers
principles. Respect for the separation of powers requires the Judicial Branch to exercise restraint
in deciding const. issues between the three branches as a „last resort‟.
(1) A dispute involving only officials (and their official interests) who serve in the branches lies
far from the model of the traditional common-law cause of action at the conceptual core of
the case-or-controversy requirement.
(2) It‟s essentially an interbranch controversy (even though Congress passed the bill about
augmenting Pres. power) calibrating the legislative and executive powers, as well as btwn
segments of Congress itself.
(3) This wouldn‟t be a problem though for the judiciary to decide if it were brought by someone
outside the fed gov‟t b/c that power has been est. since Marbury v. Madison.
a) The court has imposed other certain prudential limitations on standing, such as: precluding
taxpayers from challenging gov‟t expenditures, attempting to litigate the rights of someone not
before the court, and the presentation of generalized grievances common to the public at large.
These are not Const. mandated, so Congress could override them w/ leg. if they wanted to.
b) In limiting “leg. standing,” Raines makes it more difficult for disputes btwn political branches to
be heard in court – important for F.R.
c) Clinton v. City of N.Y. (S.Ct. 1998): N.Y. alleged injury resulting from Clinton‟s cancellation of
a fed statutory waiver of the fed gov‟ts right to recoup Medicaid-related taxes. The Court said
those Πs had standing b/c they alleged a personal stake in having actual injury redressed.
d) Standing of foreign nations to sue in U.S. court: Well accepted that they can when (a) their suing
private parties, and (b) are seeking to protect their own interests. The can also sue states of the
fed. gov‟t, but those suits may be barred on sovereign immunity groups.
(1) Ex.: Breard v. Greene (S.Ct. 1998) – Paraguay couldn‟t sue Virginia b/c the treaty didn‟t
provide a private right of action and the suit was also barred b/c of VA‟s sovereign immunity
e) Standing has also come up when foreign nations try to sue on behalf of their own citizens. The
1st Cir. Held that Mexico couldn‟t claim “parens patriae” standing to sue on behalf of their
f) Standing concerns the proper party to bring a suit; Ripeness and Mootness concern the timing.
(1) Ripeness – harm must be immediate or imminent, rather than speculative.
(2) Mootness – “Standing set in a time frame,” The personal interest must exist at the
commencement of the litigation and continue throughout its existence. HOWEVER, the
S.Ct. has held that a case that would otherwise be moot can be heard if the issues is capable
of repetition yet evades judicial review over and over again (abortion).
(3) These rules don‟t apply to state courts, only to federal courts.
3. Kucinich v. Bush (D.C. Dist. Ct. 2002): 32 members of the House of Reps are challenging Bush‟s
unilateral withdrawal from the 1972 Anti-Ballistic Missile Treaty (ABM Treaty) w/o the approval of
a) Congressmen‟s Claim: the Supremacy Clause classifies treaties as the same strength as Acts of
Congress and therefore the Pres can‟t terminate them w/o congressional consent, any more than
he could terminate legislation.
b) Pres‟s Claim: Congressmen lack standing, their claim isn‟t ripe, and it‟s a nonjusticiable P.Q.;
and the Const puts the Treaty Power in Art. II and in light of historical practice of the last 200
years, the Pres‟s withdrawal from the ABM treaty w/o congress‟s approval is constitutional.
(1) Times have changed, the Sov.Union doesn‟t exist and Russia is our friend; and Bush gave
Russia the required 6 months notice that he was going to withdraw pursuant to the Treaty‟s
c) Do the Congressmen actually have standing here?
d) The Court took the Rehnquist approach from Goldwater v. Carter, and Bush won the day.
(1) Emphasizes the last factor of the Baker test: embarrassment of the gov‟t from speaking with
one voice – don‟t want to speak with multifarious voices.
(2) The case was dismissed for P.Q. and Standing. So, even if it is ripe, then they can still get
you on standing. It‟s really hard to get these cases before the courts since Raines, Baker v.
Carr, and Goldwater.
(3) How can you get a case before the court on the merits in these situations?
(a) Claim an individual injury: the Pres‟s actions are causing an economic injury to individ.
(b) Claim that it not only touches F.A., but domestic issues too.
C. Political Question Doctrine: Marbury v. Madison announced the doctrine of const. judicial review; but it
also suggests that not all disputes are susceptible to judicial review – mere political acts are not
examinable by the courts.
1. Baker v. Carr (S.Ct. 1962): Complaint alleged that TN apportionment laws violated their 14th
Amend rights by debasing their votes. Civil action was brought under 42 U.S.C. §§1983, 1988. In
answering this question, the court considered whether it was barred by the P.Q. doctrine: It is the
relationship btwn the judiciary and the coordinate branches of fed gov‟t, and NOT the fed judiciary‟s
relationship to the states, which gives rise to the P.Q.
a) Coleman v. Miller: In determining whether a question falls w/in the P.Q. category, the
appropriateness under our system of gov‟t of attributing finality to the action of the political
depts. and also the lack of satisfactory criteria for a judicial determination are dominant
b) Deciding whether a matter has been committed by the Const. to another branch of gov‟t, or
whether the action of that branch exceeds its authority, is a delicate exercise in const.
interpretation and IS a responsibility of the S.Ct. as ultimate interpreter of the Const.
c) Foreign Relations: It is in error to suppose that every case which touches foreign relations lies
beyond judicial cognizance. Ex.: A court will not inquire whether a treaty has been terminated,
but if there is no gov‟t action the court can construe the treaty to find the answer. A court will
not try to construe a treaty to be inconsistent w/ a subsequent fed statute, but no similar hesitancy
obtains if the clash is with state law. Ex.: The exec decides if a nation is recognized or not, but
once the exec recognizes them the court can determine whether statutes apply to that area.
d) Questions to ask if there‟s a P.Q.: (Individual Issue consideration)
(1) Is there a textually demonstrable const. commitment of the issue to a political branch?
(2) Is there a lack of judicially discoverable and manageable standards for resolving it?
(3) Is it impossible to decide w/o an initial policy determination of a kind clearly not for the
(4) Is it impossible for the court to undertake independent resolution w/o expressing lack of
respect due the coordinate branches of gov‟t?
(5) Is there an unusual need for unquestioning adherence to a political decision already made?
(6) Is there the potential of embarrassing the nation from multifarious pronouncements by
various departments on one question?
2. Goldwater v. Carter (S.Ct. 1979): To normalize relations w/ China, Carter announced his plan to
terminate the U.S. treaty w/ Taiwan giving a year‟s notice as called for in the treaty. Congressmen
sued for declaratory relief to prevent Carter from terminating the treaty.
a) Powell‟s Concurrence: An issue should not be decided if it is not ripe for judicial review. And a
dispute btwn the political branches is not ripe until each has taken action asserting its authority,
the judiciary shouldn‟t decide issues of allocation of power until the two reach a const. impasse.
(1) Congress has taken no official action to challenge the Pres taking away their role w/ respect
to the treaty and we don‟t know if there will ever be a confrontation btwn the leg. and exec.
(2) Doesn‟t agree w/ maj. opinion that this is a question that could never be justiciable. This
could be resolved by the court if it were ready for review:
(a) Existence of textually demonstrable const. commitment to one branch: No const.
provision confers upon the Pres. the right to terminate treaties, and Art. II, § 2 says the
Pres, w/ the advice and consent of the Senate, makes treaties. Art. VI makes them the
supreme law of the land. All together the const. does not unquestionably commit the
power to terminate treaties to the pres. alone.
(b) There is no lack of judicially discoverable and manageable standards for resolving the
case: It only requires the court to apply normal principles of interpretation to the const.
provisions at issue. This case touches F.R., but the question concerns only the const.
division of power btwn Congress and the Pres.
(c) Prudential concerns calling for mutual respect of the coordinate branches /
embarrassment of multifarious voices: Interpretation of the Const. does not lack respect
for the coordinate branches. If the Pres. and Congress reached irreconcilable positions, a
final decree by the Court on what the law is would eliminate, not create, multiple const.
b) Stewart, Rehnquist, and Stevens Concurring: This dispute is nonjusticiable b/c it involves the
authority of the Pres. in conducting foreign relations and the extent to which the Congress is
authorized to negate the action of the Pres., and should be left to the Exec. and Leg. to decide.
(1) In light of the fact that different termination procedures may be appropriate for different
treaties, so this must surely be controlled by political standards. This is even more so than in
Coleman because it involves F.R. Curtiss-Wright said that whether, if the joint resolution
had related solely to internal affairs it would be open to challenge…we find unnecessary to
determine b/c it falls w/in the category of foreign affairs.
(2) Different from Youngstown b/c 1) seizing the steel mills had a domestic impact; 2) it was
brought by private litigants. Here we‟re dealing w/ coequal branches of gov‟t, each has its
resources available to protect its interests (which private litigants don‟t); and it is entirely
(3) The S.Ct. has always required that decisions that shouldn‟t have been reached b/c they were
moot be vacated in the lower courts; and they can all the more require lower fed cts. to vacate
decisions that shouldn‟t have been reached on grounds of P.Q.
c) Brennan Dissenting:
(1) Properly understood, P.Q. restrains cts from reviewing an exercise of foreign policy
judgment by a political branch to which authority to make that judgment has been const.
granted. BUT, this does NOT pertain when a court is faced with the antecedent question of
whether the const gave that branch the power they invoked (Powell v. McCormack).
(2) The issue of decision-making authority must be resolved as a matter of con. law, not political
(3) This issue was const. committed to the Pres. alone as a matter of foreign policy decisions
regarding China and therefore the withdrawal from the treaty was legal.
d) * If Powell is right that it‟s a ripeness issue, then the issue can be brought up later when China
actually invades Taiwan; If Rehnquist is right that‟s it‟s a P.Q. then it can never be touched by
(1) The Court is painfully aware of its fragility in the realm of F.R. and they may have just
decided to punt here. This all changes with the GITMO line of cases.
a) Prior to Baker v. Carr, the S.Ct. had a categorical approach to P.Q. – treated certain well-defined
F.R. decisions by the political branches as final and binding. Ex: who is sovereign of a terr.,
D. Foreign Sovereign Immunity:
a) Verlinden B.V. v. Central Bank of Nigeria (S.Ct. 1983): Verlinden (Dutch) entered into a K w/
Nigeria to provide it w/ 240K of concrete. They agreed on Dutch law and arbitration in Paris.
Verlinden sued Nigeria for breach of their K in D.C.S.D. of N.Y. and alleged jx under the
Foreign Sovereign Immunities Act. The bank (in N.Y. used by Nigeria) moved to dismiss for
lack of subject matter and personal jx. The C.o.A. held that the FSIA exceeded the scope of fed
ct. jx. allowed under Art. III.
(1) Foreign sovereign immunity is a matter of grace and comity on the part of the U.S. and not a
restriction imposed by the Const. and therefore the Ct. has deferred to the decisions of the
political branches on whether to take jx over actions against foreign sovereigns.
(2) Until 1952 the State Dept. ordinarily requested immunity for all friendly foreign sovereigns.
But in the Tate Letter, the State Dept. announced its adoption of the “restrictive” theory of
foreign sovereign immunity – immunity is confined to suits involving the foreign sovereign‟s
public acts, and does NOT extend to cases arising out of a foreign state‟s strictly commercial
acts. Its application, however, proved to be troublesome.
(a) Immunity used to be suggested based on political considerations and were given
sometimes under situations that wouldn‟t be given under the restrictive theory.
(b) If the foreign nations did not request immunity, the decision of whether to grant it was
subject to a variety of factors and diplomatic considerations which the court struggled
with deciding, and the standards were neither clear nor uniformly applied.
(3) In 1976, Congress passed the FSIA to free the gov‟t from case-by-case diplomatic pressures.
They wanted to make sure decisions were made on a purely legal basis and under procedures
that insure due process. It is comprehensive to cover all civil actions against a foreign state.
(a) Basically it codifies the restrictive theory of sovereign immunity, in either fed or state ct.,
but foreign states can remove to fed ct if they want to.
(b) If one of the exceptions to immunity applies the fed ct. exercises jx under § 1330a; but if
an exception doesn‟t apply then there is no sub.-matter jx.
(4) Core Question in this Case: Whether Congress exceeded the scope of Art. III by granting fed
cts. sub-matter jx over actions brought by foreign Πs against foreign sovereigns where the
rule of decision may be provided by state law.
(a) Congress may not expand fed jx beyond the bounds of the Const.: Two sources
authorizing the grant of jx found in the FSIA:
(i) Diversity Clause: Diversity jx is not sufficiently broad to support a grant of jx over
actions by foreign Πs since they‟re not “a State, or citizen thereof”
(ii) “Arising Under” Clause: In Osborn (1824) the Court upheld the const. of a statute
that granted the Bank of the U.S. the right to sue in fed ct. on causes of action based
upon state law. Congress may confer on the fed cts. jx over any case or controversy
that might call for the application of fed law. In this case necessarily raises questions
of federal law at the very outset and therefore clearly “arises under” fed law.
(a) Congress, by reason of its authority over foreign commerce, has the undisputed
power to decide whether and under what circumstances foreign nations should be
amenable to suit in the U.S.
(b) The CoA relied heavily on decisions construing § 1331 (fed-? jx) and “well-
pleaded complaint rule” The CoA said that sovereign immunity arose solely as a
defense and not on the face of the complaint = no fed. ? jx.
(c) Art. III “arising under” and Statutory “arising under” are not identical. Art. III is
broader and therefore CoA reliance on Statutory Fed. ? is misplaced – The CoA
“apparently” concluded that a jx statute can never constitute the “fed law” which
an action arises under.
(d) BUT, the FSIA is not just jx, it regulates foreign commerce, along with other
specified Art. I powers of Congress. The jx provisions are just part of a
comprehensive scheme to set forth rules governing sovereign immunity.
(iii)That the inquiry into foreign sovereign immunity is labeled under the Act as a matter
of jx does NOT affect the const. of Congress‟ action in granting fed cts. jx over cases
calling for application of this comprehensive regulatory statute.
(iv) The resulting jx grant is within the bounds of Art. III, since every action against a
foreign sovereign necessarily involves application of a body of substantive fed law,
and accordingly “arises under” fed law, w/in the meaning of Art. III.
b) Republic of Austria v. Altmann (S.Ct. 2004): U.S. citizen suing Austria and an Austrian gov‟t-
owned art gallery, pursuant to § 1605(a)(3) of the FSIA – allows for claims for the taking of
property in violation of int‟l law, IF the property is owned by an agency of a foreign state
engaged in a commercial activity in the U.S. Nazi‟s stole Π‟s uncle‟s art and sold them to the
gallery who unlawfully retained the paintings claiming Π‟s aunt donated them. The CoA held
that Austria couldn‟t have expected to get absolute immunity for its actions and the State Dept
had issued a letter in 1949 stating the policy of the U.S. was to “relieve Amer. cts. from any
restraint upon the exercise of the jx. to pass upon the validity of Nazi official acts.”
(1) Question is whether FSIA can apply retroactively. It can only do so if Congress is express
about this intent, if not then the court has to determine whether it impairs the rights of party
possessed when he acted, increases a party‟s liability for past conduct, or imposes new duties
w/ respect to transactions already completed – Landgraf v. USI Film (1994). But this inquiry
doesn‟t provide a clear answer in this case.
(2) FSIA‟s preamble suggests is applies to preenactment conduct, but falls short of express
prescription. So the court goes on to inquire if it affects substantive rights or just procedural
matters. Verlinden said that the FSIA is not just jx., but has an aspect of substantive fed law,
and since it creates jx where none otherwise would exist, it speaks not just to the power of a
particular court, but to the substantive rights of the parties as well, and therefore statutes that
even though phrased in „jx‟ terms are as much subject to the presumption against
retroactivity as any other.
(3) BUT, sovereign immunity has never been intended to permit foreign sovereigns to shape
their conduct in reliance on the promise of future immunity from suit; but rather immunity
reflects political realities and relationships, and aims to give States some present protection
from inconvenient suit as a gesture of comity. (Comity, not a right).
(4) History shows that F.S.I. questions in the past were answered by deference to the political
branches, so lets defer to the most recent decision of the political branches – the FSIA.
(5) While not express, Congress unambiguously intended the Act to apply to preenactment
(6) “While the U.S. views on the interpretation of the FSIA‟s reach is of considerable interest to
the Court, but gets no special deference. If the State Dept. should choose to express its
opinion on the implications of jx over a particular petitioner in connection with their alleged
conduct, the opinion might be entitled to deference as the judgment of the exec. on a
particular question of foreign policy.
(7) Breyer Concurrence: Disagrees with the dissents claim that foreign nations rely on immunity
or have an expectation of immunity. Also, statutes of limitation, personal jx, venue
requirements, and forum non conveniens will all limit the # of suits brought, so there isn‟t the
concern that this is opening the flood gates for litigation.
(8) Kennedy Dissent: FSIA, even though jx-al, it is subject to the presumption against
retroactivity b/c it creates jx where it didn‟t exist before (discussed in 2 above). Also, the
language of the Act doesn‟t require retroactivity, it just means that the Act applies henceforth
– immediately. Said that States relied on and expected immunity and that this opens up
nations to suit for acts committed generations ago, and that have been subject to int‟l
negotiation and agreement. Also the invitation for the State Dept to intervene on a case-by-
case basis undermine FSIA‟s purpose of transferring immunity decisions away from political
c) Notes: The exec. branch did argue that the FSIA should not be interpreted to apply to
expropriations that occurred before FSIA b/c it would cause F.R. problems, why did the court
suggest it give deference to State Dept opinions on particular cases but then didn‟t take it in that
very same case?
2. Exceptions to Immunity:
a) Saudi Arabia v. Nelson (S.Ct. 1993): Nelson responded to an ad in a trade periodical placed there
by HCA (inc. in the Caymens) who does recruiting for a Saudi Arabian hospital in Riyadh. He
signed his employment K, did his personnel processing requirements, and training in the U.S.,
and his family was given the hospital‟s corp. purchasing agent in the U.S. as the point of contact
if they needed to reach Nelson. Nelson went to work in Riyadh until he discovered defects that
endangered patients lives and he advised the hospital of the safety defects and then told the Saudi
gov‟t commission. The gov‟t later arrested him, beat him, forced him to sign a confession he
didn‟t know what it said, and then kept him in cell w/ no food for 4 days to await trial on
unknown charges. The facts go on… He and his wife filed action in the S. Dist. of FL seeking
damages for personal injury.
(1) 3 Claims: 1) Petitioners committed various intentional torts; 2) Petitioners negligently failed
to warn Nelson of otherwise undisclosed dangers of his employment; and 3) Vivian Nelson
sustained derivative injury resulting from petitioners‟ actions (didn‟t makes breach of K
claim, presumably b/c the employment K provided that Saudi cts. would have exclusive jx.)
(2) Souter Opinion: Only 1 exception to sovereign immunity applies here under the FSIA: “a
foreign state shall not be immune in any case where the action is based on a commercial
activity carried on in the U.S. by the foreign state.” This is defined as having substantial
contact w/ the U.S.
(a) The activities that occurred in the U.S. (recruitment, employment K, training)aren‟t the
basis of Nelson‟s suit, b/c the suit doesn‟t have to do with breach of K. The torts that
were committed were also not related to the commercial activity (which are the activities
that a private citizen could exercise), b/c wrongful arrest, imprisonment and torture could
not qualify as commercial – it‟s abuse of power on the part of the gov‟t.
(b) Also, the claim that petitioners should have warned him of their propensity for tortious
behavior is not cognizable.
(3) White, Blackmun Concurrence: Disagree that Saudi gets immunity b/c the action is not based
on commercial activity, but concur b/c they think the commercial activity was not carried on
in the U.S. The House and Senate Reports explain that “a foreign gov‟ts employment of
laborers would be among those included w/in the definition of commercial activity.” The
Saudi state-run hospital could have called in thugs and the maj. would have then said the
activity was tied to the commercial activity, so what‟s the difference in that they called in the
corrupt gov‟t police? This distinction is what the Congress would have us avoid – allowing
States to hide behind their sovereign immunity when participating in the commercial market
(by using the gov‟t police power to beat him rather than a private security guard is them
hiding behind immunity).
(a) BUT the Act defines the exception as “carried on in the U.S.” and having a “substantial
contact w/ the U.S.” – Nelson points to the hospital‟s recruitment efforts in the U.S. and
advertising, and the signing of the employment K in Miami – they don‟t constitute
commercial activity upon which respondent‟s action is based. And the commercial
conduct in Saudi Arabia which does constitute the basis of the action, lacks a sufficient
nexus to the U.S.
(4) Kennedy, Blackmun, Stevens Dissent: The Court shouldn‟t have said the claim based on
negligent failure to warn was outside the sub-matter jx of the fed cts w/o any explanation. It
is different from the intentional torts for purposes of the FSIA and out to be remanded for
further consideration. This claim is based on “commercial activity” having “substantial
contact w/ the U.S.” – as such it is w/ the exception and the jx of the fed cts. If true, this
violates a state employment law.
b) The Exceptions found in FSIA: 1) Waiver; 2) Commercial Activity; 3) Takings of property in
violation of int‟l law; 4) Noncommercial torts; 5) State sponsors of terrorism
(1) *Noncommercial torts: removes immunity in any case, not otherwise covered by the
commercial activity exception, in which money damages are sought against a foreign state
for personal injury or death, or damage to or loss of property, occurring in the U.S. and
caused by the tortious activity or omission by that State. The injury must occur in the U.S.,
and thus excludes foreign torts. Most courts also require that the action itself took place in
the U.S. (However, the Restatement says it applies wherever the injury occurs in the U.S.,
regardless of where the act took place.) This does NOT apply to torts that require discretion,
even if it results from an abuse of discretion or if it arises from malicious prosecution, abuse
of process, libel, slander, deceit, or interference w/ K rights.
(2) Aside from FSIA, foreign officials also have the Vienna Convention on Diplomatic Relations
and the VCCR. Diplomats are not subject to any form of arrest, they‟re immune from
criminal jx., civil and administrative proceedings (not even for egregious crimes). Consulars
are not liable to arrest or detention except in the case of grave crime pursuant to the decision
by a competent judicial authority (but not where the claims based on acts not done w/in their
public capacity). Countries can waive this immunity for their diplomats and consulars if they
want to b/c of the egregiousness of their crimes (probably depends on political
E. Act of State Doctrine: Common Law Doctrine that limits the circumstances under which U.S. courts will
examine the validity of foreign gov‟t acts: “Every sovereign State is bound to respect the independence
of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the
gov‟t of another done w/in its own terr. Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by the sovereign powers as btwn themselves.” Underhill v.
1. Banco Nacional de Cuba v. Sabbatino (S.Ct. 1964): Issued in 1964 at the height of the Cold War,
relationship btwn U.S. and Cuba is strained, Castro took control and proceeded to expropriate U.S.
property, Bay of Pigs ‟61, Cuban missile crisis ‟62, and CIL on State responsibility regarding
expropriation were being challenged by Communist and newly independent developing countries.
a) Facts: A U.S. commodities broker K to purchase sugar from a Cuban co. (CAV). The sugar was
to be shipped to a customer in Moracco and the U.S. broker was to pay for it upon presentation
of the shipping docs. The sugar in CAV was owned by U.S. residents. The Cuban gov‟t made a
law allowing them to expropriate property in which U.S. nationals had an interest in Cuba and
they took the CAV property. In order to get his sugar shipped to his customer, the broker entered
into a payment agreement w/ a Cuban gov‟t bank, BUT after having the sugar shipped to his
customer, and receiving payment from the customer for the sugar, the broker received a claim
from CAV for the proceeds of the sale and a promise to indemnify him for any losses as long as
it didn‟t pay the money to the Cuban bank. A NY court then appointed Sabbatino as a
Temporary Receiver of CAV‟s NY assets, and enjoyed the broker from disposing of the
proceeds from the sale to anyone. The broker turned the proceeds over to Sabbatino. The Cuban
bank is suing Sabbatino for those proceeds. The broker claims the proceeds aren‟t Cuba‟s b/c
they violated int‟l law w/ the expropriation.
b) Bernstein Exception: The AoS doctrine does not apply if the State Dept says they have no
problem with a case going forward. The Court doesn‟t pass on the validity of this “exception” to
the AoS doctrine in this case.
c) Claims of the Respondents against the application of the AoS doctrine:
(1) The doctrine doesn‟t apply to acts of state which violate int‟l law.
(2) The doctrine is inapplicable unless the exec. specifically interposes it in a particular case; and
(3) In any event, the doctrine may not be invoked by a foreign gov‟t Π in our courts who the U.S
has broken off diplomatic relations with.
d) Harlan Opinion: The doctrine is not compelled either by the inherent nature of sovereign
authority (as stated in Underhill) OR by some principle of int‟l law. The AoS doctrine does have
“const. underpinnings” – it arises out of the basic relationships btwn branches of gov‟t in a
system of separation of powers – concerns the competency of institutions to make and implement
particular kinds of decisions in int‟l relations.
(1) This is exclusively as aspect of fed law – reflecting a concern for uniformity in this country‟s
dealings w/ foreign nations and indicating a desire to give matters of int‟l significance to the
jx of fed institutions.
(2) The Judicial Branch will NOT examine the validity of a taking of property w/in its own terr.
by a foreign gov‟t, which is recognized by this country at the time of suit, in the absence of a
treaty or other unambiguous agreement regarding controlling legal principles, even if the
complaint alleges that the taking violates CIL.
(a) Basically where a particular area of int‟l law has been codified or there‟s a consensus, the
judiciary is appropriate to render decisions since they can focus on the application of an
agreed principle and there are less implications for our F.R. If the situation is the
opposite (not codified or a consensus, or the int‟l touches on national nerves and call for
the exclusivity of the political branches).
(b) Conflicting ideologies of capitalistic countries vs. communist countries are not for the
courts to embark on adjudicating. Opinion is so divided on state‟s power to expropriate.
A judicial decision on property that fortuitously ended up in this country would likely
offend the nation since terr. sovereignty is so deeply seated. The Exec. diplomacy would
better compensate those who are harmed by either bilateral or multilateral talks,
submissions to the U.N., or by employment of economic and political sanctions. Also
judicial remedies only have an occasional impact for the particular cases they handle, not
the entire problem from the root.
e) White Dissent: Our courts are obliged to determine controversies on their merits, in accordance
w/ the applicable law; and that part of the law American courts are bound to administer is int‟l
law. The reasons for non-review, based on traditional concepts of terr. sovereignty, lost much of
their force when the foreign act of state is in violation of int‟l law.
(1) W/o doubt political matters in the realm of foreign affairs are w/in the exclusive domain of
the exec. as issues for which there are no available standards or which are textually
committed by the Const., but this is NOT saying that the Const. vests absolutes control of
F.R. to the executive or that the validity of a foreign act of state is necessarily P.Q. **Int‟l
law, as well as a treaty or exec. agreement, provides an ascertainable standard for
adjudicating the validity of some foreign acts, and cts. are competent to apply the body of
law (except where comity dictates giving effect to the act b/c it is not clearly condemned
under generally accepted principles of int‟l law) [perhaps like in this case where communist
ideology that States can take property…]
(2) The Const. allocates to the judicial power controversies btwn aliens and citizens or States,
aliens and aliens, and foreign states and American citizens or States.
2. Limitations and Exceptions: Kirkpatrick & Co. v. Environmental Tectonics Corp. (S.Ct. 1990):
Kirkpatrick paid a bribe to a Nigerian citizen to secure a K for the construction of an aeromedical
center in Nigeria. The bribe worked and he was awarded the K. ETC, an unsuccessful bidder,
learned of the bribe and alerted U.S. officials. Kirkpatrick was indicted for violating the Foreign
Corrupt Practices Act and pled guilty. ETC then sued Kirkpatrick and the Nigerian citizen under a
few racketeering acts and Δs moved to dismiss under Rule 12(b)(6) on the ground that the action was
barred by the AoS doctrine.
a) Scalia Opinion: The State Dept. issued a letter saying judicial inquiry would not produce the
unique embarrassment, and the particular interference w/ the conduct of foreign affairs, that may
result from the judicial determination that the foreign sovereign‟s acts are invalid.
(1) Jurisprudential foundations of the AoS doctrine: a consequence of domestic separation of
powers, reflecting the strong sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder the conduct of foreign affairs.
(2) It only applies where the relief sought or the defense interposed would have required a ct. in
the U.S. to declare the official act of a sovereign, performed w/ its own terr., to be invalid.
(3) In this case, neither the claim nor any asserted defense requires a determination that Nigeria‟s
K w/ Kirkpatrick was, or was not, effective. ETC just has to show that Kirkpatrick and the
Nigerian citizen engaged in racketeering. The court doesn‟t have to decide upon the validity
of the subsequent K w/ the Nigerian gov‟t.
(4) The petitioners argue that subsequent to deciding that the two engaged in racketeering, it will
be decided that the Nigerian gov‟t knew about the bribes and it influenced them to take
Kirkpatrick‟s bid and therefore embarrass that gov‟t.
(5) ** The AoS doctrine is not some vague principle of abstention (ripe/moot/P.Q.), but a
principle of decision binding on fed and state cts alike.
(6) ** The Rule of Decision: the rule that makes the difference in the outcome of the case has to
be the official acts of the country. If the case turns on the act of a state, the courts have to
presume the acts were valid.
(7) Policies Underlying the AoS Doctrine: A balancing approach should apply: shifting away
from applying the doctrine if the gov‟t that committed the act is no longer in power. The
policies underlying the AoS doctrine should be considered in deciding whether, despite the
doctrine‟s technical availability, it should nonetheless not be invoked. (The court is NOT
saying that those underlying policies are a doctrine until themselves, justifying the expansion
of the AoS doctrine into new uncharted fields)
(1) Since Kirkpatrick, courts have concluded that even when the requirements for the AoS
doctrine are satisfied, the doctrine need not be applied if the F.R. and other concerns
underlying the doctrine are not implicated. Should cts be making these F.R. decisions?
(2) The S.Ct. indicated that only official, public acts qualify as “acts of state”
(3) “The AoS doctrine is a judicially accepted limitation on the normal adjudicative processes of
cts. springing from the sound principle that on occasion individual litigants may have to
forgo a decision on the merits b/c such a decision might frustrate the conduct of the Nation‟s
foreign policy. It would be illogical to then insist that the rule be applied in the face of an
assurance from the fed gov‟t, that conducts F.R., that such a result would not be obtained.” –
City Bank v. Cuba (S.Ct. 1972). [3 justices argued for the Bernstein exception, but the other
6 rejected the exception] Powell rejected it b/c “he would be uncomfortable w/ a doctrine
which would require the judiciary to receive the exec‟s permission before invoking its jx.”
(4) Justice Brennan argued that the avoidance of embarrassment is only one of the policies
underlying the AoS doctrine and other policies are still served by it when the State Dept
indicates that it‟s not opposed to litigation. Their opinion is entitled to weight, but they
cannot be determinative.”
3. Philippines v. Marcos (9th Cir. 1987): Marcos and his wife fled the Philippines after his latest
election was rejected by the people; they brought crates of money, jewelry, and metals. U.S.
Customs impounded the crates. The Central Bank of the Philippines wanted the crates; Marcos
wanted the crates; Customs didn‟t want to release them. Assets of Marcos began turning up all over
the world, and litigation is ensuing in each place, the Republic of the Philippines is trying to recover
or freeze the assets it regards as property of the Philippines improperly possessed by the Marcoses.
Complaint: (not seeking the recovery or freezing of property) Marcos committed depredations that
enabled him to become enormously rich at the expense of the Republic and the people, the Republic
is seeking to have all its wealth returned. Thrust of the claim is Marcos abused his power, depriving
the people of wealth that is rightfully theirs. 11 claims, the first 3 are fed. Racketeering (RICO)
claims; the others are pendant.
a) Kozinski Opinion: During much of Marco‟s tenure in office, he ruled by decree under martial
law and could conduct the affairs of the Philippines unchecked. Some of the misdeeds could be
fraud of theft accomplished w/o the exercise of gov‟t authority, BUT the vast maj. of his acts
were things he could only do pursuant to his power as Pres.: expropriation of property; creating
public monopolies; granting gov‟t favors, contracts, licenses, loans and other public benefits.
The Π even alleged that the Philippine gov‟t headed by Marcos was a RICO „enterprise‟.
(1) ** The Π‟s case is a ringing indictment of Marco‟s conduct as Pres. during his years in
office. This raises serious and sensitive questions about the ability of U.S. cts to adjudicate
the issue, and the propriety of their doing so. ** Is this the appropriate forum for a dispute
between the current gov‟t of the Philippines and its former ruler?
(2) Act of State Doctrine: Underhill is the essence of the doctrine: by the universal comity of
nations and the est. rules of int‟l law, courts are bound to abstain from sitting on judgment of
the acts of another gov‟t done w/in its own terr.; Sabbatino says that it arises out of the basic
relationship btwn branches in separation of powers: hindering int‟l diplomacy and
embarrassing the U.S. in the eyes of the world. (but Harlan and White say that if there is a
rule of law that the court can interpret and apply they have the ability to do so, but if there
isn‟t a definite rule then its up to diplomacy… There‟s something about 3 factors to balance)
(a) In order to resolve Π‟s claims the court will have to adjudicate whether Marcos‟ actions
as Pres. were lawful under Philippine law (rule of decision).
(b) It could embarrass the U.S. if the courts find that a foreign gov‟t that the U.S. recognized
and considered its ally for many years, who it entered into many treaties and had
extensive dealings with, was actually a „criminal enterprise‟ under our law.
(c) Π argues the AoS doctrine is not applicable:
(i) This case is like DeRoburt and Sharon; which said AoS not applicable b/c the validity
of the acts is not at issue, the issue is whether the acts occurred.
(a) Court – this case is different b/c the issue is both whether the acts occurred and if
it was legal for Marcos to do them as the country‟s dictator.
(ii) Marcos‟ acts, to the extent they were illegal under Philippine law, were ultra vires and
therefore not public acts undertaken in the exercise of gov’t authority.
(a) Court – Since the AoS doctrine prohibits inquiry into the legality of official gov‟t
acts, such acts surely cannot be official only if they are legal. This would
emasculate the AoS doctrine.
(iii)The AoS doctrine does not apply b/c the acts in question were not in the “public
interest.” Acts done by an official for his own private and personal gain are unofficial
acts which may be scrutinized by this court.
(a) Court – if Marcos engages in actions as a private citizen he is subject to suit, like
if he walked into a bank and stole money from the treasury at gunpoint, but this is
not the case when he uses decree, resolution or some other gov‟t act to access the
public funds. Once acts are identified as gov‟t in character, our cts have
uniformly refused to question the integrity or nobility of the reasons underlying
(b) Dissent relies on Jimenez: Gov‟t of Venezuela wants the dictator back to try them
in their own country; they have an extradition treaty w/ the U.S.; the AoS doctrine
doesn‟t bar the court, in habeas reviews of extradition proceedings, from
determining whether there was probable cause of guilt so that extradition was
proper – AoS does not bar inquiry into validity of a sovereign act where there‟s a
treaty defining controlling int‟l law.
(c) It would greatly weaken the AoS doctrine if parties could put in ? the validity of
official gov‟t acts simply by attacking the motives of the gov‟t officials who
(iv) The AoS doctrine doesn‟t apply when the gov‟t itself is asking that we inquire into
the actions of its former dictator, rather than a gov‟t who call on the AoS doctrine
when they‟re acts are being questioned.
(a) Court – There‟s less possibility that the court will embarrass our relations with
that gov‟t ; but just as the exec‟s opinion is not dispositive, neither is the foreign
gov‟ts. What if the ct does inquire and finds Marcos did no wrong, that might
impair our F.R. w/ the Philippines, we can‟t assume at the outset we won‟t
embarrass by assuming the Π will win their factual attacks; what is the current
gov‟t isn‟t in power when the case is finally resolved?
(d) Sabbatino said that “an inquiry by U.S. cts into the validity of an act of an official of a
foreign state under the law of that state would be exceedingly difficult. Moreover we
would be interpreting the Philippine‟s public law, not its private law, and asking if
Marcos properly invoked martial law, whether he exercised it properly, etc. – if this has
an answer in Philippine law, it is a sensitive question for them to decide. If we decided
this question wrongly it would be highly offensive to them.
(3) Political Question: What judicially manageable standards could the ct use to determine the
legality of the actions of a Pres. exercising dictatorial power under a reign of martial law,
which depends only on the will of the dictator and not on any civil authority. So, what law
can the ct apply to decide the case? Without judicially manageable standards to apply, the
question is not for the judiciary.
(4) Conclusion: Preliminary injunction is reversed and ordered vacated.
b) Nelson Dissent: Disagrees that the AoS doctrine was mis-analyzed
(1) Scope of the Doctrine: Official and Unofficial Acts: There is much precedent and
Restatement that says that the doctrine applies to public and gov‟t acts, but NOT to their
private and commercial acts. Therefore the unofficial acts of Marcos as not covered by AoS.
(a) The majority ignores the private unofficial acts and embraces the position that acts of a
dictator are all official and insulated from jud. review.
(b) In Jimenez, the 5th Cir. disagreed that as a dictator all actions are official: “It is only
when officials having sovereign authority act in an official capacity that the AoS doctrine
applies. Acts constituting financial crimes of embezzlement, fraud, etc. were not acts of
Venezuela sovereignty. Each act was for the private financial benefit of the appellant,
done in violation of his position and not in pursuance of it. They‟re as far from AoS as
(i) The maj distinguishes this cases applicability by saying it involves an extradition
treaty, but why does this matter? The question is whether it would embarrass our
gov‟t – treaty says no – so the question is would it here w/o a treaty? We must look
to other indications from our exec branch.
(c) There is a distinction btwn official acts which may be protected even if illegal under
Philippine law; and purely private acts.
(2) Burden of Asserting the AoS Doctrine: The burden of est. that conduct constitutes an AoS is
on the party invoking the defense. Δ have made no showing that their acts should be covered
(a) The maj‟s assertion that Marcos is a dictator whose acts are insulated eviscerates the Δ‟s
burden of est. the applicability of the defense.
(b) In fact the maj‟s analysis proceeds on the theory that the Π must show the doctrine
(3) The Assertion of Embarrassment to the U.S. Exec. Branch: Sabbatino says the doctrine was
not compelled by the nature of sovereignty, by int‟l law, or the text of the Const.; but rather
from the judiciary‟s concern for its possible interference with the conduct of F.R. by the
(a) It‟s not clear why the maj believes that such potential embarrassment would outweigh the
certain immediate embarrassment our F.R. would suffer if we shut the door to the
Philippines request to adjudicate claims.
(b) Sabbatino also said that the balance of relevant considerations may also be shifted if the
gov‟t which perpetrated to AoS is no longer in existence for the political interest of this
country may well be measurably different.
(c) The State Dept has spoken on the availability of this case to be in court (at least w/
respect to the 2nd Cir and the Court of Int‟l Trade). The opinion of the State Dept, while
not dispositive, is entitled to considerable deference.
III. Congress & the President in Foreign Relations:
A. Sources of Congressional Power: Art. I confers numerous powers relating to the conduct of F.R. to
Congress; S.Ct. has also recognized other congressional F.R. powers not specifically enumerated: The
power to make appropriations; The power to regulate foreign commerce; The power to define and
punish offenses against the law of nations; The power to make laws that are necessary and proper to
carry into execution other gov‟t powers; The implied power to regulate immigration; (controversially)
The “inherent” sovereign power to regulate foreign affairs.
1. Buttfield v. Stranahan (S.Ct. 1904):The Tea Inspection Act (1897) required examiners to inspect
shipments of tea at U.S. ports to ensure conformity w/ standards set by a board of tea inspectors,
selected by and answerable to the Secretary of the Treasury. Π‟s tea was rejected as inferior; he
appealed and lost; and then requested to remove his tea, but his request was denied and the collector
at the port destroyed the tea in accordance w/ the Act which only gave a 6-month window to remove
tea found to be inferior.
a) White Opinion: The power to regulate foreign commerce is expressly conferred to Congress in
the Const. Congress has from the beginning exercised a plenary power to exclude merchandise
brought from foreign countries; not only directly by embargo, but indirectly also in tariff leg. It
has also exercised a police power by provisions asserting the right to exclude merchandise at
discretion – provisions regulating the degree of drug strength, medicines, and chemicals entitled
to admission into the U.S. The same is true for the degree of tea standards.
2. U.S. v. Arjona (S.Ct. 1887): Arjona was prosecuted for attempting to counterfeit the bank notes of
Colombia in violation of a fed statute “to prevent and punish the counterfeiting w/in the U.S. of
notes of foreign gov‟ts.”
a) White Opinion: The obligation of one nation to punish those who, w/in its own terr., counterfeit
the money of another nation has long been recognized. The gov‟t of the U.S. has long been
vested w/ the power of representing the nation in all its intercourse w/ foreign countries, and
Congress has the power to make all laws necessary to carry into execution the powers vested by
the Const. in the gov‟t and it alone can “regulate commerce w/ foreign nations.”
(1) If someone in another country were counterfeiting U.S. money and cashing it in, this would
harm the U.S. and we wouldn‟t have the jx to go in and do something about them ourselves,
so we would have to rely on that country to punish the offense. Reciprocity dictates that we
should do the same for them.
(2) This is an offense against the law of nations and Congress can define that offense in a
domestic statute if it wishes – this statute was enacted as a means of performing a duty which
had been cast on the U.S. by the law of nations.
3. Fong Yue Ting v. U.S. (S.Ct. 1893): In the Chinese Exclusion Case (Ch. 1), the S.Ct. upheld the
constitutionality of an 1888 Act of Congress that excluded certain Chinese laborers from reentering
the U.S. Then in 1892 Congress enacted a statute entitled “An act to prohibit the coming of Chinese
persons into the U.S.” § 6 required deportation of the current Chinese laborers in the U.S. unless
they obtained a certificate from the IRS demonstrating they entered the U.S. before 1892; w/o a
certificate they had to show good cause and present “at least 1 credible white witness” to testify to
their residency before 1892. § 7 directed the Secretary of the Treasury to issue rules and regulations
implementing the statute. Πs argued that Congress didn‟t have the power to deport them, and
deportation violated Due Process Clause of the 5th Amend.
a) Gray Opinion: Every sovereign nation has the power to forbid the entrance of foreigners w/in its
dominion, in peace as well as war; the U.S. vests this power in the national gov‟t and it belongs
to the political branches to be exercised either through treaty (Pres and Senate), or the Congress
by statute. The right to expel or deport those who have been naturalized or taken steps towards
becoming citizens is as absolute and unqualified as the right to prohibit their entrance in the first
place. But is the manner in which Congress did this consistent with the Const.?
(1) The court doesn‟t want to undertake to pass upon political questions if the Const. has
committed the final decision to other depts. of the gov‟t. The Court concludes that the power
in question lies belong to Congress and the Exec. and the Courts place in the process is only
to ascertain any contested facts on which an alien‟s right to stay in the country have been
made by Congress to depend.
(2) Congress has the right under the Const. to provide a system of registration and ID for aliens
w/in the country and may take all proper means to carry out the system which it provides.
(3) The Judiciary cannot properly express an opinion upon the wisdom, police or the justice of
the measures enacted by Congress in the exercise of the powers confided to it by the Const
over this subject.
b) Brewer Dissent: The national gov‟t is one of enumerated and delegated powers; and this doctrine
of power inherent in sovereignty is dangerous b/c where are the limits to be found? Does the leg.
have the capacity to declare the limits? Does the judiciary decide? If they‟re inherent, what does
the court call on to decide? The limits in other nations which have elastic powers, where ours
are fixed and bounded by a written const.?
(1) The founders were aware that other countries exercised the power to expulse a race, but gave
to this gov‟t no general power to banish which may be resorted to as punishment for crime;
but the gov‟t doesn‟t have the power to determine whether whole classes in our midst shall,
for no crime but that of their race and birthplace, be driven from our terr.
(2) The Const. has no extraterritorial effect, and those that have come lawfully w/in our terr. can
claim any protection from its provisions. The national gov‟t may be allowed to build a
Chinese wall around our borders, but the Const. has potency everywhere w/in the limits of
(3) The power to remove resident aliens is not expressed, but even if Congress has the power to
exercise implied powers is still limited to the restrictions imposed by the Const (Due Process)
c) Field Dissent: The power to deport from the country persons lawfully domiciled therein by its
consent have never been asserted by the leg or exec depts., except for crime, act of war, in view
of existing or anticipated hostilities.
(1) Aliens domiciled w/in our country by its consent are entitled to all the guaranties for the
protection of their persons and property which are secured to native-born citizens.
(2) The word “sovereignty” in this country is vested in the people, and only in the people. By
them certain powers have been delegated to the gov‟t of the U.S. and others reserved to the
states or to themselves – this is the express declaration of the 10th Amend, passed to avoid
any misinterpretation of the powers of the general gov‟t. THEREFORE, when a power is
exercised by Congress, authority for it must be found in the Const. or in the means necessary
and proper for the execution of the power expressed.
d) Fuller Dissent: If the protection of the Const. extends to Chinese laborers who are legally here
under previous treaties and laws, then the question whether this act of Congress is in conflict w/
that instrument is a judicial question and its determination belongs with the Court.
(1) However reluctant cts may be to pass upon the const. of leg acts, it is of the very essence of
judicial duty to do so.
(2) Here Congress has decided that registration for the purpose of ID is required and the
punishment for not complying is deportation. This inflicts punishment w/o a judicial trial – It
is a leg. sentence of banishment and as such is absolutely void.
a) One of Congress‟ most significant sources of authority over F.R. stems from control over
appropriations and spending.
b) Art. I, § 8, cl. 3 – gives Congress power to regulate both domestic and foreign commerce.
c) The Chinese Exclusion Case and Fong Yue Ting are the founts of the “plenary power doctrine”
in immigration law:
(1) The source of congressional power over immigration is inherent const. power based on
(2) The validity of congressional regulations of immigration involve P.Q. committed to the
political branches rather than the cts to decide.
Fong Yue Ting and subsequent cases invoked the plenary power doctrine to reject aliens‟ due
process claims. (“Whatever the procedure authorized by Congress is, it is Due Process as far as
an alien is concerned.”)
However, more recently the “deference” component of the plenary power doctrine is eroding and
courts are using mainstream procedural due process analysis in immigration law and made
procedural due process claims available to a wider circle of aliens.
B. Sources of Executive Power: Art. II grants relatively few enumerated foreign affairs powers,
nevertheless the Pres. has always exercised enormous F.R. power.
1. Theodore Roosevelt, An Autobiography (1914): The exec. power was limited only by specific
restrictions and prohibitions appearing in the Const. or imposed by Congress under its Const.
powers. He declines to adopt the view that what was imperatively necessary for the Nation could
not be done by the Pres. unless he could find some specific authorization to do it, but rather the Pres.
duty is to do anything that the needs of the Nation demanded unless such action for forbidden by the
Const. or the laws.
2. Taft, Our Chief Magistrate and His Powers (1916): The Pres. can exercise no power which cannot
be fairly and reasonably traced to some specific grant of power or justly implied and included w/in
such express grant as proper and necessary to its exercise (either in the Const. or act of Congress).
There is NO undefined residuum of power which he can exercise b/c it seems to him to be in the
public interest. His judgment is that the view of Mr. Roosevelt is an unsafe doctrine and that it
might lead under emergencies to results of an arbitrary character.
3. Kagan, A Twilight Struggle: American Power and Nicaragua 1977-90 (1996): Reagan used his
landslide victory to get what he wanted out of Congress on the issue of getting aid to the Nicaraguan
contras. The “Reagan Doctrine” was a sweeping application of American political philosophy and
morality to the conduct of int‟l affairs – it denied the fundamental legitimacy of all communist
gov‟ts and by implication all non-democratic gov‟ts. Reagan and Secretary Shultz called for an
unprecedented ideological consistency in Amer. foreign policy.
4. G.W. Bush, The National Security Strategy of the U.S. (Sept. 2002): Since the Cold War, there are
new deadly challenges that have emerged from rogue states and terrorists. The nature and
motivations of these new adversaries, their determination to obtain destructive powers until now
only available to the world‟s strongest states, and the greater likelihood that they will use WMD
against us, make today‟s security environment more complex and dangerous. The U.S can no longer
rely on the retroactive posture of the past. We cannot let our enemies strike first. We must adapt the
concept of imminent threat to the capabilities and objectives of today‟s adversaries.
5. Youngstown Sheet & Tube Co. v. Sawyer (S.Ct. 1952): Korean War, labor dispute at a steel mill
threatening to go on strike, Pres. Truman issued an exec. order directing Secretary of Commerce to
seize the mills and operate them.
a) Frankfurter‟s Concurring Opinion: “Deeply embedded traditional ways of conducting gov‟t
cannot supplant the Const. or leg, but they give meaning to the words of a text or supply them….
A systematic, unbroken, exec practice, long pursued to the knowledge of the Congress and never
before questioned, engaged in by Presidents who have also sworn to uphold the Const., making
as it were such exercise of power part of the structure of our gov‟t, may be treated as a gloss on
“exec Power” vested in the Pres by § 1 of Art. II…”
b) Jackson‟s Concurring Opinion: Just what our forefathers envisioned must be divined from
materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.
(1) 3 Zones of Pres. Power:
(a) When the Pres. acts pursuant to an express or implied authorization of Congress his
authority is at its max – for it includes all that he possesses in his own right plus all that
Congress can delegate. In these circumstances he is said to personify the fed gov‟t, and if
his act is held unconst. it usually means that the fed gov‟t as an undivided whole lacks
power. The burden of persuasion would rest heavily upon any who might attack it.
(b) When the Pres. acts in absence of either a congressional grant or denial of authority, he
can only rely upon his own independent powers, but there is a “Zone of Twilight” in
which he and Congress may have concurrent authority. Congressional inertia,
indifference or quiescence may sometimes enable measures on independent pres.
responsibility. The test of power is likely to depend on imperatives of events and
contemporary imponderables rather than on abstract theories of law.
(c) When the Pres. takes measures incompatible w/ the expressed or implied will of
Congress, his power is at its lowest ebb – for he can only rely on his own const. powers
minus any const. powers of Congress over the matter.
(2) In this case: The Pres. is in Zone 3: Congress has not left seizure an open field b/c it passed 3
statutory policies inconsistent w/ this seizure. His actions then can only be justified by any
remainder of exec. power after subtraction of such powers as Congress may have over the
subject – meaning declaring that its beyond the control of Congress. What power the Pres.
does have must indulge some latitude of interpretation for changing times.
(3) Jackson gives to the enumerated powers the scope and elasticity afforded by what seem to be
reasonable, practical implications instead of the rigidity dictated by textualism:
(a) The Solicitor General seeks the power to seize under the First clause of Art. I: “The exec.
power shall be vested in the Pres of the U.S.” – the interpretation the Solicitor gave that
was “This clause constitutes a grant of all the executive power of which the gov‟t is
(i) If that‟s true, its hard to see why the forefathers bothered to add several specific items
(ii) The example of unlimited exec power to the forefathers was the prerogative of
George III, and the description of its evils is in the Declaration of Independence, leads
Jackson to doubt that they were creating in their new Exec his image.
(iii)Rather that statement means the Pres gets the general powers thereafter stated.
(b) The next clause the gov‟t relies: “the Pres. shall be the commander in chief of the army.”
(i) This undoubtedly puts the armed forces under Pres. control.
(ii) There‟s nothing more sinister and alarming than a Pres., whose conduct in F.A. is
largely uncontrolled of unknown, can vastly enlarge his mastery over the internal
affairs by committing the nation‟s troops to some foreign venture.
(iii)While Congress cannot deprive the Pres. of the command of the army, only they can
provide him with an army to command – the power of the purse
(iv) Military powers were not to supersede representative gov‟t of internal affairs.
(v) When the Pres. turns the instruments of national force inward, not b/c of rebellion,
but b/c of a lawful economic struggle btwn industry and labor, it should have no such
indulgence of wide interpretation (like he would get if it was his use of forces against
the outside world).
(c) The third clause invoked: “he shall take Care that the Laws be faithfully executed”
(i) That must be matched against the 5th Amend – “No person shall be deprived of life,
liberty or property, without due process of law” One gives a gov‟t authority that
reaches so far as there is law, the other gives a private right that authority shall go no
(ii) We submit ourselves to rulers only if under rules
(d) Lastly grounds support from the nebulous, inherent powers never expressly granted, but
said to have accrued to the office from the preceding administrations. The plea is for a
power to deal with a crisis or an emergency according to the necessities of the case.
(i) The unarticulated assumption here is that “necessity knows no law.”
(ii) In view of the ease to which Congress can grant the Pres. emergency powers, Jackson
sees no reason to affirm possession of them w/o statute.
(4) By his prestige and influence upon public opinion he exerts a leverage upon those who are
supposed to check and balance his power which often cancels their effectiveness. “I have no
illusion that any decision by this Court can keep power in the hands of Congress if it is not
wise and timely in meeting its problems. Napoleon said that “The tools belong to the man
who can use them.”
(a) “Men have discovered no technique for preserving free gov‟t except that the Exec. be
under the law, and that the law be made by parliamentary deliberations. Such institutions
may be destined to pass away, but it is the duty of the Court to be last, not first, to give
c) Dissent: Reads the “take-care clause” as broadly as we would read Congress‟s “necessary and
C. Relationship btwn Congress and the President:
1. Dames & Moore v. Regan (S.Ct. 1981): Iranian militants seized the U.S. embassy in Tehran and held
U.S. diplomatic personnel there as hostages. Pursuant to IEEPA (Int‟l Emergency Economic Powers
Act), Pres. Carter blocked the removal or transfer of Iranian assets held w/in the jx of the U.S. and
issued orders authorizing the initiation of judicial proceedings in the U.S. cts against Iran. D&M
then filed suit against Iran seeking money owed to its subsidiaries and was ordained a pre-judgment
attachment of the property of certain Iranian banks. When the hostages were released pursuant to
the Algiers Accords (exec. agreement) under which the U.S. agreed to terminate all legal
proceedings in U.S. cts involving claims against Iran and its state enterprises, nullify all attachments
and judgments, to prohibit all further litigation on such claims, and to bring about the termination of
such claims through binding arbitration before a special tribunal in the Hague. Carter issued exec
orders implementing the terms, and Reagan reaffirmed those orders. D&M challenged the validity
of the Carter and Reagan exec orders.
a) Rehnquist Opinion: Starts by commenting on Jackson‟s Youngstown categories: “Exec action in
any particular instance falls, not neatly in one of 3 pigeonholes, but rather at some point along a
spectrum running from explicit congressional authorization to explicit congressional prohibition”
(1) The gov‟t has relied on § 203 of IEEPA (50 U.S.C. § 1702(a)(1)) for congressional
authorization of these actions – which says the Pres. may “nullify‟ the attachments and order
the “transfer” of the frozen assets.
(a) D&M contends that the plain language of this statute should be ignored b/c the legislative
history as well as the history of the statute this statute‟s language was pulled from reveals
that it was not intended to give the Pres. such extensive power over the assets of a foreign
state during times of national emergency.
(b) Court – disagrees and refuses to read out of § 1702 all meaning to the words “transfer,”
“compel,” or “nullify.” And nothing in the history of the statutes requires such a result.
(c) Congress did intend to limit the Pres.‟s emergency power in peacetime, it doesn‟t affect
the authority of the Pres. used here.
(2) Also, when petitioner instituted their action, the Pres. had already entered the freeze order
and the petitioner only proceeded after the Treasury Dept had issued revocable licenses
authorizing such proceedings and attachments. AND, the Treasury provided that all licenses
may be amended, modified or revoked at any time – the attachments obtained by the
petitioners were specifically made subordinated to further actions which the Pres might take
under IEEPA – petitioner was on notice of the contingent nature of its interest in the frozen
(3) B/c the Pres.‟s actions were taken pursuant to congressional authorization, it is supported by
the strongest presumptions and widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.
(a) Petitioner has not met it, and – a contrary ruling would mean that the fed gov‟t as a whole
lacked the power exercised by the Pres – and we are not prepared to say that.
(4) There still remains the question of the Pres.‟s authority to suspend claims pending in
(a) Court Concludes: Although IEEPA authorized the nullification of the attachments, it
cannot be read to authorize the suspension of the claims.
(b) Claims of American citizens against Iran are not in themselves transactions involving
Iranian property or efforts to exercise any right w/ respect to such property…IEEPA
therefore does not authorize the pres to suspend claims in Amer. cts.
(c) The broad language of the Hostage Act suggests it may cover this case, there are
difficulties with such a view:
(i) The legislative history of that Act shows Congress was concerned w/ countries that
didn‟t respect naturalized U.S. citizens traveling abroad, and repatriated them against
their will. Those countries weren‟t interested in returning them for any ransom. This
explains the reference to imprisonment “in violation of the rights of Amer.
citizenship.” – The hostages were not seized out of any refusal to recognize their
Amer. citizenship, they were seized precisely b/c of their citizenship.
(ii) Leg. history is also ambiguous on whether Congress contemplated Pres. action such
as this or rather simply reprisals directed against the offending foreign country and its
(iii)These statutes indicate congressional acceptance of a broad scope for exercising
action in circumstances such as those presented in this case. IEEPA delegates broad
authority to the Pres. to act in times of national emergency w/ respect to property of a
foreign country and the Hostage Act similarly indicates congressional willingness that
the Pres have broad discretion when responding to the hostile acts of foreign
(d) While the Court declines to conclude IEERA and the H.A. directly authorize the Pres.‟s
suspension of claims, they do say that the “general tenor” of Congress‟ leg. in trying to
determine whether the Pres is acting alone or at least w/ the acceptance of Congress.
(i) The enactment of leg closely related to the question of the Pres.‟s authority in a
particular case, which evinces leg intent to accord the Pres broad discretion, may be
considered to “invite” measures on independent pres. responsibility.
(ii) At least this is so where there is no contrary indication of leg intent, and when there is
a history of congressional acquiescence
(e) History: Outstanding claims by nationals of one country against the gov‟t of another are
sources of friction btwn the two sovereigns, and nations often enter into agreements
settling the claims of their respective nationals (U.S. v. Pink 1942).
(i) Sometimes those agreements are treaties, but sometimes they‟re exec agreements
made w/o the advice and consent of the Senate.
(ii) Under such agreements the Pres has agreed, in the past, to renounce or extinguish
claims of U.S. nationals against foreign gov‟ts in return for lump-sum payments of
the est. of arbitration proceedings.
(iii)However, the U.S. has sometimes disposed of the claims of its citizens w/o their
consent, w/o consulting them, and usually w/o exclusive regard for their interests, but
rather w/ regard for the interests of the nation as a whole.
(iv) Congress has implicitly approved of the practice of claim settlement by exec
agreement – demonstrated by the Int‟l Claims Settlement Act of 1949: 1) allocated to
U.S. nations funds received from an exec claims settlement w/ Yugoslavia; and 2)
provided a procedure whereby funds resulting from future settlements could be
distributed. This Act also created a commission w/ jx to make final and binding
decisions w/ respect to claims by U.S. nationals against settlement funds.
(a) By creating a procedure to implement future settlement agreements, Congress
implicitly placed its stamp of approval on such agreements.
(b) Congress has also amended the Act to provide for particular problems that have
come up w/ each settlement fund – demonstrates continued acceptance.
(v) This Court has also recognized that the Pres. does have some measure of power to
enter into exec agreements w/o the advice and consent of the Senate.
(5) As Frankfurter pointed out in Youngstown – “a systematic, unbroken, exec practice, long
pursued to the knowledge of Congress and never before questioned…may be treated as a
gloss on Exec Power vested in the Pres.”
(6) B/c the claimants were given another avenue to receive something for their claims in the
Claims Tribunal, this case is easily analogized to the more traditional claim settlement cases
of the past mentioned above.
(7) And, Congress hasn‟t disapproved of the action. They‟ve held hearings on the Iranian
Agreement and haven‟t passed leg to the contrary.
(8) Where the settlement of claims has been determined to be a necessary incident to the
resolution of a maj foreign policy dispute btwn our country and another, and where we can
conclude that Congress acquiesced in the Pres.‟s action, we are not prepared to say that the
Pres lacks the power to settle such claims.
b) Problems w/ the Historical Gloss Theory:
(1) Maybe the Pres really doesn‟t have the power const.ly and Congress is just acquiescing.
(2) The Court is looking to what Congress likes or doesn‟t to decide what the Pres‟s Const.
powers are …doesn‟t that mean it‟s really a political question?
(3) This case may not be consistent with Youngstown.
(a) Rehnquist never hangs his hat on any particular “delegated power” here. He‟s using
functionalist logic, not formalist logic.
(b) The opinion is a hybrid of Jackson and Black‟s opinions in Youngstown.
(c) This decision is limited to emergency situations.
(d) Zone 2 cases are mush. The judiciary just has to take a hard 2nd look at what the
executive is doing and if it doesn‟t look obviously out of the Const., then consider what
the legislature thinks of it (which is probably really a P.Q. problem) but the court can‟t
always punt on these things. They need to consider what the Const. meant in these
2. Immigration & Naturalization Service (INS) v. Chadha (S.Ct. 1983): Challenge to the const. of a
provision in the Immigration and Nationality Act, which authorized the A.G. to suspend deportation
of an otherwise deportable alien if the alien met specified conditions and if his deportation would
result in extreme hardship to the alien or his family. This law delegated to an Exec agent the power
to do a legislative function, but then reserved to the Congress the power to veto the A.G.‟s decision
w/ a one house veto. Chadha was granted stay by the A.G. and over a yr later the House of Reps
decided, w/o the Senate or Pres., that he didn‟t satisfy the criteria to stay and had to go.
a) Burger Opinion: The fact that a given law or procedure is efficient, convenient, and useful in
facilitating the functions of gov‟t will not save it if it is contrary to the Const. “Our inquiry is
sharpened rather than blunted by the fact that Congressional veto provisions are appearing w/
increasing frequency in statutes which delegate authority to exec. and independent agencies.”
(1) Presentment Clauses: The records of the Const. Congress reveal that the requirement that all
leg be presented to the Pres before becoming law was uniformly accepted by the Framers.
Presentment and Pres. veto were considered so imperative that the draftsmen took special
pains to assure that these requirements couldn‟t be circumvented. It is w/o doubt that
lawmaking was a power to be shared by both Houses and the Pres.
(2) Bicameralism: This concept is just as important and interdependent w/ Presentment. By
providing that no law could take effect w/o the concurrence of the prescribed maj of the
Members of both Houses, the Framers reemphasized their belief that leg should not be
enacted unless it has been carefully and fully considered by the Nation‟s elected officials.
(3) These two things serve essential const. functions. The Pres.‟s role is to protect the exec
branch from Congress and to protect the whole people from improvident laws. The division
of Congress assures that the leg power be exercised only after opportunity for full study and
debate in separate settings. Then the Pres.‟s veto was limited by the power of 2/3 of both
Houses thereby precluding final arbitrary action of one person.
(4) The challenged action is of the kind to which the procedural requirements of Art. I, § 7 apply.
Not every action taken by either House is subject to bicameralism and presentment and
whether actions taken by the House are an exercise of legislative power depends not on their
form but upon “whether they contain matter which is properly to be regarded as leg. in its
character and effect.”
(a) The House took action that had the purpose and effect of altering the legal rights, duties,
and relations of persons, including the A.G., Exec Branch officials, and Chadha (all
outside the leg branch).
(i) W/ regard to the one-House veto – this is leg in character b/c after Congress delegated
authority to the A.G. to determine if aliens should stay in the U.S., they couldn‟t have
effectively required the A.G. to deport an alien after he had made a decision to the
contrary, w/o requiring it by legislation. The House can‟t justify the one-House veto
as an attempt to amend the standards set out by the delegation or as an appeal of the
delegation as applied to Chadha specifically. “Amendment and repeal of statutes, no
less than enactment, must conform w/ Art. I”
(ii) Congress made a deliberate choice to delegate to the Exec the authority to allow
deportable aliens to remain – this choice to delegate is precisely the kind that can be
implemented only in accordance w/ Art. I and disagreement w/ the A.G.‟s decision
involves determinations of policy that Congress can implement only one way:
bicameral passage followed by presentment to the pres.
(b) Finally, when the Framers saw it fit to authorize one House to act on something they
expressly stated it and there are only 4 times when this is true: 1) House initiates
impeachments; 2) Senate alone conducts trials following impeachment; 3) Senate
approves or disapproves pres. appointments; and 4) Senate ratifies treaties.
(i) These exceptions are narrow, explicit, and separately justified.
(5) The veto is doubtless a convenient shortcut and an appealing compromise, but it is crystal
clear that the Framers ranked other values higher than efficiency.
(6) “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet
found a better way to preserve freedom than by making the exercise of power subject to the
carefully crafted restraints spelled out in the Const.
b) White Dissent: The Court sounds the death knell for nearly 200 other statutory provisions in
which Congress has reserved a legislative veto over delegations of power to the exec. Without
the legislative veto, Congress is faced w/ a Hobson‟s choice: either 1) refrain from delegating the
necessary authority, leaving itself the hopeless task of writing laws w/ the requisite specificity to
cover endless special circumstances across the entire policy landscape, or 2) to abdicate its law-
making function to the exec and independent agencies.
(1) It is an important, if not indispensable, political invention that allows the pres and congress to
resolve major const. and policy differences, assures the accountability of independent
regulatory agencies, and preserves Congress‟ control over lawmaking.
(2) The issue is not as clear-cut as the maj attempts to make out – it‟s a debate that divides
scholars, courts, attorneys general and the political branches of the fed gov‟t. If it was so
plainly in violation of Art. I, § 7, Congress wouldn‟t have used it in 200 statutes for over 50
(3) The Const‟s silence on the leg veto means the Court should determine whether the veto is
consistent w/ the purposes of Art. I and the principles of the Separation of Powers. The U.S.
has become an endeavor far beyond the contemplation of the Framers, and w/ the fed gov‟ts
responsibilities growing so greatly that the Congress has found the veto to be the most
effective, if not the only, means to insure their role as the nation‟s lawmakers.
c) The Court doesn‟t care that Congress has been doing this for awhile b/c there‟s a judicially
discoverable standard for review straight out of Art. I. They took a formalist approach, and
formalists hate “Historical Gloss”
d) McCoy stressed more that this case was about the House usurping judicial power. (Powell‟s
argument on the S.C. – not in this book).
a) Uncertainty about the const. allocation of authority btwn the Pres and Congress has resulted in
two interpretive strategies: 1) Formalism – const text, rule-bound-adjudication – threshold
question is whether a particular exercise of authority is essentially leg, exec, or jud., then they
scrutinize the action for conformity to const. allocation. 2) Functionalism – modern gov‟t
demands more flexible interpretation of separation of powers – employ balancing approaches.
Jackson‟s Youngstown opinion is a celebrated Functionalist opinion.
b) “The Pres almost always wins in foreign affairs cases” (with Youngstown being the exception).
IV. War Powers:
A. Congress‟s Role in Authorizing War: (Art. I, § 8)
1. Federalist No. 69 (Hamilton): The Pres‟s powers are different than those of the King of Britain‟s 1)
The Pres. will have only the occasional command of such part of the militia of the nation as by
legislative provision may be called into the actual service of the Union; and 2) The Pres. has only the
supreme command and direction of the military and navel forces, but cannot declare war or raise
a) James Wilson, Penn. Convention: The Const. will not hurry us to war, it is calculated to guard
against it. The power to declare war is vested in the leg at large…From this circumstance we
may draw a certain conclusion, that nothing but our national interest can draw us into a war.
2. The Quasi-War w/ France: The U.S. engaged in an “undeclared war” early in its history. After the
U.S. declared its neutrality in 1793. The British and French attacked U.S. commercial shipping.
John Jay negotiated a treaty w/ the British which stopped their attacks, but increased the French‟s
attacks. John Adams set 3 commissioners to France to resolve the crisis – the French were rude and
U.S. public opinion turned sour on France. Congress never declared war, but they did pass statutes
that enlarged the military, empowered the Pres to raise troops, authorized the construction of forts,
purchase of weapons, barred commercial relations w/ France, legally voided all treaties w/ France,
and gave the Pres. the power to capture French warships and commission privateers. [this is the
subject of Little v. Barreme in Section C as well…]
a) Bas v. Tingy (S.Ct. 1800): Congress enacted 2 statutes concerning the recapture of American
vessels. The wording btwn the two was slightly different. The first said nothing about “enemy”
and said that any ship recovered was to pay 1/8 the value to the recovering to the re-captors. The
2nd said “if re-taken from the enemy” and made 1/8 payable if caught w/in 24 hours, and ½
payable if caught w/in 96 hours. An Amer. vessel commander said he was due ½ the value of a
ship for its return b/c of the 2nd statute, but the ship owner said only 1/8 was due b/c Amer.
never declared war on France and therefore the 2nd statute doesn‟t apply.
(1) Justice Moore: “If words are the representatives of ideas, let me ask, by what other word the
idea of the relative situation of American and France could be communicated, than by that of
hostility, or war? And how can the characters of the parties engaged in such hostilities be
called anything other than enemies?”
(2) Justice Washington: It may be safely laid down that every contention by force btwn two
nations, in external matters, under the authority of their representative gov‟ts is not only war,
but public war. Differentiates btwn a perfect war and an imperfect war. Declared form that
applies to all members of both nations to all members of the other, in all places, under every
circumstance – perfect war; Where its nature is limited as to places, persons, and things and
those engaged can go no further than their commission – imperfect war. It‟s still a war either
way though b/c it‟s an external contention by force. France and America are certainly not
friends under this situation, nor are they private enemies b/c the contention was external.
(a) But a war of the imperfect kind is more properly called acts of hostility, or reprisal, and
that congress did not mean to consider the hostility subsisting btwn France and the U.S.,
as constituting a state of war.
(b) But even though Congress didn‟t declare a perfect war, it doesn‟t mean a perfect war is
necessary for France to be our enemy.
(3) Justice Chase: This is a limited, partial war. Congress has suspended the law of nations w/
regards to 4 things they‟re allowing American vessels to do, and therefore this right of
capture and re-capture, can only be authorized by an act of gov‟t, which is an act of hostility.
If congress had chosen to declare a general war, France would be a general enemy; having
chosen to wage a partial war, France is only a partial enemy; but still she was an enemy.
3. The War of 1812: War broke out btwn G.B. and France in 1803 and in the process American
commercial shipping vessels seized by G.B. and thousands of American sailors were impressed into
the British Royal Navy. Also G.B. allegedly instigated Indians on the western frontier of the U.S.
In 1812, Pres. James Madison asked Congress to declare war and 3 days later they did.
a) Brown v. U.S. (S.Ct. 1814): Whether Congress had implicitly authorized the Exec Branch to
confiscate enemy property (pine timber owned by a British citizen) located w/in the U.S.
(1) Marshall Opinion: That war gives to the sovereign full right to take the persons and
confiscate the property of the enemy wherever found is conceded, but until that will is
expressed, no power of condemnation can exist in the Court.
(a) The structure of our gov‟t requires that proceedings to condemn the property of an enemy
[of anyone] can be sustained only upon the principle that they are instituted in execution
of some existing law. Is the declaration of war such a law?
(b) The modern rule under int‟l law seems to be that tangible property ought not to be
immediately confiscated; and in almost every commercial treaty there‟s an article
stipulating for the right to withdraw such property.
(c) The power of congress as enumerated and include “to declare war,” and “make rules
concerning capture on land and water” – There‟s an express grant to congress of the
power in question as an independent substantive power, NOT included in the declaring
(d) It appears to the Court, that the power of confiscating enemy property is in the leg, and
that the leg has not yet declared its will to confiscate property which was w/in the terr. at
the declaration of war.
(2) Story Dissent: My argument proceeds upon the ground that when the leg authority, to whom
the right to declare war is confided, has declared war in its most unlimited manner, the exec.
authority, to whom the execution of the war is confided, is bound to carry it into effect. If the
leg doesn‟t limit the nature of the war, all the regulations and rights of general war attach
4. The Vietnam War: American involvement began in the 1950s when Truman and Eisenhower
provided economic and military assistance to France in Indochina, and after 1954 to S. Vietnam.
Pres. Kennedy and Johnson expanded Amer. involvement and by July 1964 there were 21,000 troops
there (all w/o specific congressional authorization). July 31, 1964 the U.S.S. Maddox was attacked
by N. Vietnamese forces in the Gulf of Tonkin (this may have been exaggerated to get Congress to
support the war). Congress “approved and supported” the determination of the Pres. “to take all
necessary measures to repel an armed attack against U.S. forces and to prevent further aggression.”
The resolution was to expire when the Pres. shall determine or it may be terminated by concurrent
resolution of Congress. – Tonkin Gulf Resolution.
a) Orlando v. Laird (2nd Cir. 1971): Two enlistees sued for injunction to stop enforcement of order
directing them to report for transfer to Vietnam – these exec. officials exceeded their const.
authority by ordering the enlistees to participate in a war not properly authorized by Congress.
(1) Anderson Opinion: The Const. contains a discoverable and manageable standard imposing on
Congress a duty of mutual participation in the prosecution of war. Judicial scrutiny of that
duty is not foreclosed by the P.Q. doctrine – the test is whether there is any action by the
Congress sufficient to authorize or ratify the military activity in question. Answer: Yes.
(a) Congress and the Exec have taken mutual and joint action in Southeast Asia from the
beginning. The Tonkin Gulf Resolution enacted in 1964 (repealed in 1970) was
expressed in broad language which clearly showed Congress‟ intent fully to implement
and support the military and naval actions taken by the Pres. Appropriated money and
extended the Military Selective Service Act knowing it would sent persons to Vietnam,
and conscripted manpower to fill the substantial induction necessitated by the current
(b) The framer‟s intent to vest the war power in Congress is in no way defeated by permitting
an inference of authorization from leg action furnishing the manpower and materials of
war for the protracted military operation in Southeast Asia.
(c) The leg has the power to decide how to declare war and their choice in how to instigate it
is untouchable by the judiciary – P.Q.
(i) Decisions regarding the form and substance of congressional enactments authorizing
hostilities are determined by highly complex considerations of diplomacy, foreign
policy, and military strategy inappropriate to judicial inquiry.
(ii) What the Pres and Congress has done implies a consensus on the advisability of not
making a formal declaration of war b/c it would be contrary to the interests of the
U.S. to do so.
a) The Founders substituted the word “make” for the word “declare” when they wrote the Const.
b) Congress has only declared war 5 times: 1) War of 1812; 2) Mexican-American War; 3)
Spanish-American War; 4) WWI; and 5) WWII. In 234 other instances we‟ve sent troops abroad
for things other than peacetime purposes.
B. The President‟s Independent Military Powers: (Art. II)
1. The Mexican-American War 1846-48: dispute over the border of TX. Congress recognized that a
“state of war exists” and authorized the Pres. to engage the military. Then when the war was over,
the House of Reps adopted a resolution stating the war was “unnecessarily and unconst. begun by
a) Abe Lincoln (one House member) wrote that the Pres cannot cross the line and invade the terr. of
another country if he as the sole judge determines that it is necessary to repel invasion…this
allows him to make war at his pleasure.
2. The Bombardment of Greytown:
a) Durand v. Hollins (Some lower court in N.Y. 1860): In response to the theft and destruction of
Amer. property and an attack on an Amer. minister, Captain Hollins ordered the bombardment of
Greytown, Nicaragua. Durand was an Amer. citizen living in Greytown who sued over damage
to his property in the event. Hollins said his actions were authorized by the Secretary of the
(1) Circuit Judge Opinion: Objection to defense is that neither the Pres or the Secretary of the
Navy had authority to give the orders relied on by the Δ. The interposition of the pres
abroad, for the protection of the lives or property of the citizen, must necessarily rest in his
discretion. It is clear that in all cases where a public act rests in exec discretion neither he
nor his agents are personally civilly responsible for the consequences. His decision is final
and conclusive, and justified the Δ in the execution of his orders given through the secretary
of the navy.
3. The Civil War: After the firing on Fort Sumter Pres. Lincoln took responsive steps w/o authorization
from Congress. He explained the legal bases for these actions: These measures, whether strictly
legal or not, were ventured upon under what appeared to be a popular demand and a public necessity
trusting that Congress would readily ratify them. It is believed that nothing was done beyond the
competence of Congress. It was with great regret that the exec found the duty of employing the war
power upon him, but he could either perform this duty or surrender the existence of the gov‟t. The
next month Congress passed a statute ratifying Lincoln‟s military actions.
a) The Prize Cases (S.Ct. 1863):Did the Pres have the right to institute the blockade of ports under
the control of persons in armed rebellion against the gov‟t on the principles of int‟l law?
(1) That the Pres was the proper person to make such a notification is not disputed, BUT was the
right of prize and capture appropriate?
(2) The right of prize and capture has its origin in the “jus belli” and is governed under the law
of nations – in order to legitimate the capture of neutral vessels or property on the high seas
has to follow a war that exists de facto and the neutral must be on notice.
(3) Congress can alone declare war – but it cannot declare war against a State by virtue of any
clause in the Const. The Pres has no power to initiate or declare war against a foreign nation
or domestic State under the Const. BUT by the Acts of Congress of 1795 and 1807 – he IS
authorized to call out the militia and military in cases of foreign invasion and to suppress
insurrection against the gov‟t of a State or of the U.S.
(a) He does not initiate the war, but is bound to accept the challenge w/o waiting for any
special legislative authority.
(b) If it were for Congress to authorize, this ratification has operated to perfectly cure the
defect. The objection to this ratification as ex post facto might have weight at a trial in a
criminal court, but there isn‟t precedent for that objection in a tribunal administering
public and int‟l law.
(4) Nelson Dissenting: Is of the opinion that no civil war existed until recognized by the act of
Congress that declared war; and the Pres doesn‟t possess the power to declare war or
recognize its existence w/in the meaning of the law of nations and thus had no power to set
on foot a blockade – therefore the capture of the vessel & cargo in this case are illegal & void
4. The Korean War: The first large-scale military conflict initiated and sustained w/o express
congressional authority. Also the first time a Pres relied on the U.N. Charter as authority for
sending troops into combat.
a) The U.N. Charter: If the Sec. Council determines the existence any threat to peace or act of
aggression, and if it determines that nonmilitary measures would be inadequate, it can authorize
such action by land, sea or air as may be necessary to maintain or restore peace. Un Art. 43(1)
all U.N. Members undertake to make available to the Sec. Council armed forces on its call w/
special agreement. [these agreements were to be ratified in accordance w/ Member‟s const.
processes] Also, Art. 49 says that Members shall join in affording mutual assistance in carrying
out the measures decided on by the Sec. Council.
(1) Members of Congress consented to the UN Charter in 1945, but objecting Senators said that
ratifying the Charter was like delegating the declare war power to the Sec. Council and the
Exec‟s rep on the Council. Congress then enacted the UN Participation Act: authorizes the
Pres to negotiate an agreement w/ the UN for the use of US forces, subject to congressional
b) The Korean War: June 24, 1950, N. Korea invaded S. Korea. The Sec. Council (w/ Russia
absent) denounced the attack and called for an immediate ceasefire and withdrawal to the 38th
parallel. The resolution also called upon members to render every assistance to the U.N.
Truman publicly announced a commitment of U.S. forces to assist S. Korea. The Council
subsequently placed the forces of 15 countries under U.S. command and Truman appointed
General Douglas MacArthur to lead these forces.
(1) Some Senators supported Truman saying his actions were authorized by our obligations to
the U.N. Charter, and what is being done is more in the nature of police action and doesn‟t
require nor is it desirable to have a declaration of war.
(2) Other Senators criticized Truman saying that he brought us into war w/o congressional
approval. The U.N. Participation Act requires the pres to enter into an agreement w/ the UN
to determine what forces are necessary and to present this agreement to Congress for
approval; neither of which were ever done.
(3) Truman justified his actions: “The power to send troops abroad is certainly one of the power
which the Pres may exercise in carrying out such a treaty as the U.N. Charter.”
5. The Somalia Intervention: In 1992, in response to a severe famine in Somalia, the U.N. began
providing food and other relief. These efforts were hampered by armed bands who were stealing the
food for their own use. The U.N. Sec. Council issued Resolution 794 to authorize member states to
use all necessary means to est. a secure environment for humanitarian relief operations in Somalia.
In response, Bush I sent 28,000 troops to Somalia.
a) Assist. A.G. Flanigan, “Authority to Use U.S. Military Forces in Somalia: The Pres has the
power to commit U.S. troops abroad for the purpose of protecting important national interests,
and this extends to dispatch of forces either on missions of good will or rescue, or for the
purpose of protecting Amer. lives or property or Amer. interests from foreign threats.
(1) Applying this to the present case, the Pres can determine that the mission is necessary to
protect the Amer. citizens engaged in relief operations and humanitarian supply flights.
(2) The Pres isn‟t limited to the protection of Amer. citizens in Somalia; past interventions
extended to the protection of foreign nationals provide precedent to protect the endangered
Somalians and other non-U.S. citizens.
(3) The continued existence of the UN as an effective int‟l org. is a paramount U.S. interest.
a) The Prize Cases state that the Pres has the power to repel attacks; does this mean the Pres has to
wait until attacked or can he/she preempt attacks? Does the response have to be proportional?
b) The holding in Brown v. U.S. that the Pres can‟t seize enemy property w/o congressional
authorization, might not have survived The Prize Cases where Lincoln was allowed to block the
ports and seize both enemy property and neutral vessels in violation of the blockade.
c) Can the Pres use his power to dismiss ambassadors, break off diplomatic relations or announce
new foreign policy in an attempt to provoke an attack so he can trigger his defensive war
powers? Is this what Pres Polk did w/ Mexico.
d) Does the Take Care Clause really permit the Pres to use military to enforce our int‟l obligations?
It‟s important that Truman committed troops to Korea b4 the U.N. Sec. Council issued its
authorization to use force.
e) Is it true that “When the Pres decides to risk the use of armed force in cooperation w/ the U.N. or
other treaty partners in an effort to restore peace and end armed aggression, he is not „initiating
war‟ but defending the rule of law.”? Is there really a distinction between “war” and “police
(1) The Sec. Council cannot substitute for the kind of check on unilateral pres action that the
Founders sought in Congress, b/c the Sec. Council does not represent the Amer. people and is
not politically accountable to them.
f) ** In 1878, in response to perceived abuses by the U.S. military in the South during
reconstruction, Congress enacted the Posse Comitatus Act – whoever, except in cases and under
circumstances authorized by the Const or Acts of Congress, willfully uses any part of the Army
or Air Force as a posse comitatus or otherwise to execute the laws, shall be fined and imprisoned
– Precludes the use of the U.S. military for civilian law enforcement unless permitted by fed law.
(1) These regulations generally permit “direct” military involvement in civilian law enforcement,
but permit “indirect” assistance such as information sharing or other actions that do not
subject civilians to the use of military power that is regulatory, prescriptive, or compulsory.
(2) After 9-11, Bush Admin started reviewing this Act to see if it “restricted the ability of the
military to protect domestic security.”
C. Congress‟s Ability to Regulate the President‟s Use of Force:
1. Little v. Barreme (S.Ct. 1804): [The Exec overstepped in its interpretation of a statute in order to
give it better effect] The “non-intercourse” statute prohibited trade w/ France. The Flying-Fish, a
Danish ship having Danish and neutral property aboard was captured. The act said that it was to
exclude a seizure of any vessel not bound to a French port – whatever induced the captain to think
she was an Amer. vessel doesn‟t matter b/c he would have even been authorized to detain her had
she been an Amer. b/c she was coming from a French port.
a) However, the exec‟s order to the secretary of the navy said “to be vigilant that vessels or cargoes
really Amer., but covered by Danish or other foreign papers, and bound to or from French ports,
do not escape you.” Is the officer who obeys the order liable for damages sustained by this
misconstruction of the act, or will his orders excuse him?
b) Justice Marshall acquiesces that the instructions cannot change the nature of the transaction, or
legalize an act which without those instructions would have been a plain trespass (even though
he first thought that military duty to follow order would excuse the captor from damages).
c) Since the seizure wouldn‟t have been legal even if the ship had been American, its unnecessary
to inquire whether probable cause was present to suspect that she was Amer.
(1) Therefore the captain must be answerable in damages to the owner of the neutral vessel.
2. War Powers Resolution (1973): [pp. 238-39] Sets forth when the Pres. can introduce armed forces
into hostilities; that he shall submit to Congress w/in 48 hours of doing so the circumstances
necessitating the introduction, the const. and leg authority which such introduction took place, and
the est. scope and duration; after 60 days if Congress hasn‟t declared war or extended the period (or
couldn‟t meet b/c of the attack) the Pres has to pull all troops out, unless the Pres requests a 30 day
extension; or the Pres has to pull out if directed by concurrent resolution of Congress; AND states
that authorization shall not be inferred by any provision of law unless it specifically authorizes the
introduction, or from any treaty ratified unless it specifically authorizes the introduction by
3. Nixon‟s Veto of the War Powers Resolution (1973): [Passed over his Veto] Nixon returned w/o
approving the War Powers Res. He complains about the 60 day cutoff w/o any act of Congress, and
the ability of Congress to eliminate authorities by concurrent res (an action which doesn‟t have the
force of law since it denies the Pres his const. role in approving leg). These provisions are unconst.
b/c the only way to change the const. powers of a branch is by const. amendment.
a) Practical Consequences: diminish our respect from our allies, unpredictability would be
introduced in the world‟s assessment of our behavior, increase miscalculation and war. It would
undercut the ability of the U.S. to act as an effective influence for peace. § 8(a)(2) would also
cause adverse consequences for our ability to satisfy our obligations under the NATO treaty as
ratified by the Senate.
b) No Act on the Part of Congress is Required. Congress attempts to increase its policy-making
role through a provision which requires it to take no action at all. It must make its will known
through a positive action, with full debate on the merits with each member casting a yes or no
vote, otherwise they‟re not politically accountable.
4. The Dellinger Memo (1994): There are circumstances in which the Pres may appropriately decline to
enforce a statute that he views as unconstitutional.
a) There is significant judicial approval for this proposition: Freytag v. Commissioner (1991)
agreed that the Pres has the power to veto encroaching laws…or even to disregard them when
they are unconstitutional. (Scalia concurring); Youngstown recognized the existence of Pres‟s
authority to act contrary to a statutory command (Jackson).
b) Consistent and substantial exec practice: Opinions dating back to 1860 assert the Pres‟s authority
to decline to effectuate enactment the Pres views as unconst. – asserting that the pres need not
enforce a statute purporting to appoint an officer.
c) Propositions for the Counsel of the Pres‟s consideration:
(1) The Pres‟s office and authority are created and bounded by the Const – the Pres is required to
act in accordance with the laws: Take Care Clause and oath of office: Can‟t effectuate
(2) When bills are under consideration the exec should promptly identify unconst. provisions and
communicate its concerns to Congress.
(3) The Pres should presume the enactments are const., but the Pres can and should exercise his
judgment to determine whether the statute is const. Wherever possible the Pres should
construe provisions to avoid const. problems.
(4) If the Pres believes the Ct would sustain a provision the Pres should execute the statute
regardless of his own belief; but if he thinks the Ct would agree w/ him that the statute is
unconst. the Pres has the authority to decline to execute the statute.
(5) Where the Pres thinks it will be unconst., the Pres should determine whether to comply w/
the law based on weighing factors of the effect on the const. rights of individuals and the
likelihood that compliance or noncompliance will permit judicial resolution of the issue.
(6) Where an enactment would limit his const. powers, the Pres should defend his office and
decline to abide by it, unless he is convinced the Ct. will disagree with him. A policy of
consistent Pres enforcement of statute limiting his power would deny the S.Ct. the
opportunity to review the limitations and thereby allow for unconst. restrictions on the Pres‟s
(7) The fact that a sitting Pres signed the statute in questions doesn‟t change the analysis –
there‟s no const. analogue to the principle of waiver or estoppel.
5. Campbell v. Clinton (D.C. Cir. 2000): A number of congressmen, led by Tom Campbell, sued
claiming the Pres violated the War Powers Res. and the War Powers Clause of the Const. by
directing U.S. forces‟ participation in the recent NATO campaign on Yugoslavia. Dismissed for
lack of standing
a) Silberman Opinion: Two days after Clinton commenced missile attacks on Yugoslav targets he
submitted reports to congress consistent with the War Powers Res. One month later, Congress
voted on 4 resolutions related to the conflict: Voted down 1) declaration of war, and 2) an
authorization of the air strikes; but it also voted against 3) requiring the Pres to immediately end
participation in the NATO operation; and they did 4) decide to fund that involvement.
b) The claim is that while Clinton did file a report as required by the WPR, he didn‟t end U.S.
involvement after 60 days.
c) Standing Question:
(1) Raines v. Byrd – observing it had never held that congressmen have standing to assert an
institutional injury as against the exec, the Ct held that petitioners lacked “leg standing” to
challenge the Act. Also the Ct. pointed out that the petitioners had redress through
congressional means that they hadn‟t exercised yet.
(2) Coleman v. Miller – the congressmen were asserting that their votes were completely
nullified wrongfully which was a personal injury to them, and the law was now out of their
(3) Here: The Congressmen defeated WPR authorization by a tie vote (one #2 above) and
defeated a declaration of war outright (#1 above). Their claim is that the Pres acted illegally
in excess of his authority by keeping troops engaged beyond 60 days.
(a) Appellants here fail b/c they continue, after the votes, to enjoy ample leg power to have
stopped the prosecution of the “war.”
(b) They could vote to cut off funds (but a vote was put to that and failed) or impeachment of
d) Silberman Concurring (yes, concurring to his own opinion): The power to declare war is not
necessarily the same as the power to determine whether US forces will fight in the war.
Silberman thinks there are no judicial standards to base this on, and therefore not for the courts to
decide. Courts would never be able to really know who started it b/c of sensitive intelligence
questions and therefore it‟s a nonjusticiable P.Q.
6. War Crimes Act of 1996 (as amended):
a) Offense: Whoever, whether inside or outside the U.S., commits a war crime, in any of the
circumstances described in (b), shall be fined, or imprisoned for life, or any number of years, or
if death results to the victim, shall also be subject to the D.P.
b) Circumstances: the circumstances referred to in (a) are that the person committing such a breach
or the victim of such war crime is a member of the armed forces of the U.S. or a national of the
c) Definition: “war crime” means any conduct:
(1) Defined as a grave breach in any of the int‟l conventions signed at Geneva in 1949, or any
protocol to such conventions to which the U.S. is a party
(2) Prohibited by Art. 23, 25, 27, or 28 of the Hague Convention IV, Respecting the Laws and
Customs of War on Land (1907);
(3) Which constitutes a violation of common Art. 3 of the int‟l conventions signed at Geneva in
1949, or any protocol to such conventions to which the U.S. is a party and deals w/ non int‟l
armed conflict; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva in 1996, when the U.S. is a party to such Protocol, willfully
kills or causes serious injury to civilians.
D. The War on Terrorism:
1. Joint Resolution of Congress Authorizing the Use of Force (Sept 18, 2001): Authorized the use of
force against those responsible for the 9-11 attacks: Pres is authorized to use all necessary force
against those nations, orgs, or persons he determines planned the Sept. 11 attacks, or who harbored
a) War Powers Res Requirements –
(1) Congress declares that this section is intended to constitute specific statutory authorization
w/in the meaning of § 5(b) of the WPR.
(2) Nothing in this res. supersedes any requirement of the WPR
b) ** The Pres, but using this Res., concedes to the WPR…
c) The Pres wrote two letters to Congress on the Amer Campaign Against Terrorism in which he
cites his compliance w/ the Joint Res on the Use of Force.
2. “AUMF” [Authorization for Use of Military Force] (Nov. 2001)
a) Section 2. Definiton and Policy:
(1) The term “individual subject to this order” shall mean any individual who is not a U.S.
citizen with respect to whom I determine from time to time in writing that:
(a) There is reason to believe such individual, at relevant times:
(i) Is a member of al Qaeda;
(ii) Has engaged in, aided or abetted, or conspired to commit acts of terrorism, or act in
preparation therefore…; or
(iii)Has knowingly harbored individuals above; AND
(b) It is in the interest of the U.S. that such individual be subject to this order
b) Section 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this
(1) Any individual subject to this order shall be tried by military commission
(2) As a military function the SoD shall issue such orders and regulations, including the
appointment of one or more military commissioners as may be necessary to carry out
(3) Orders and regulations of subsection (b) shall include rules for the conduct of the
proceedings, including pretrial, trial and post-trial procedures, modes of proof, issuance of
process, and qualifications of attorneys. Minimum provides for:
(a) Military commissions to sit at any time and any place
(b) A full and fair trial, with the military commission sitting as the tries of both fact and
(c) Admission of such evidence as would have probative value to a reasonable person;
(d) In a manner consistent with the protection of classified information
(e) Conduct of the prosecution by one or more attorneys designated by the SoD, and the
conduct of the defense by attorneys for the Δ
(f) Conviction only upon the concurrence of 2/3 of the commission
(g) Sentencing only upon the concurrence of 2/3; and
(h) Submission of the record of the trial for review and final decision by me (the Pres) or by
his SoD if so designated by me.
c) Section 6. Additional Authorities of the SoD: As a military function the SoD shall issue orders
and regs as necessary to carry out this order
d) Section 7. Relationship to Other Law and Forums:
(1) With respect to any individual subject to this order –
(a) Military tribunals shall have exclusive jx w/ respect to offenses by the individual
(b) Individual shall not be privileged to seek any remedy or maintain any proceeding in:
(i) Any court of the U.S., or any State thereof
(ii) Any court of a foreign nation, or
(iii)Any int‟l tribunal
2. Torture Memo: Memo for Alberto Gonzalez, Counsel to the Pres. (Aug. 2002):
a) Spring 2002 the U.S. got a hold of some Al Qaeda members and wanted to do some things to
them. So, they went to the Legal Dept and asked what their obligations were. This memo got
included in some Dept. of Defense materials on how they‟re going to go about interrogation.
Rumsfeld signed on to this and asked for some harder penalties. Authorized hoods, dogs, long-
times standing, threats to their lives or their families‟ lives.
b) Huge fight in the Bush administration. The law types said it was perfectly consistent with laws
and within the Commander-in-Chief powers of the Const; OLC was totally on board with this
view. Military lawyers went out hard against this, threatening to resign if this happened, b/c of
reciprocity to their people abroad and appropriate military behavior expected of soldiers (trained
not to obey orders if they‟re in violation of the Geneva Convention). If soldiers follow orders
that are wrong, they‟re the ones on the line, not the politicians in Washington. This has been
twisted completely in the law.
(1) The concerns of the military lawyers are why the Legal Dept included the section that the
courts can‟t review the actions of the people carrying out the Pres‟s orders.
c) Const. Arguments:
(1) Read the Statute to avoid Const. problems and tried to make them to be compatible.
(2) This is the Pres‟s Commander in Chief Power and Congress can‟t infringe on it.
d) Problems w/ the Pres‟s Actions:
(1) Violating Jus Cogen‟s norms
(2) Edging in on being like Marcos where he can do anything he wants in the name of the
country. Can he launder money in the name of the Commander in Chief power?
(3) Didn‟t mention Youngstown – this is in the 3rd category where Congress has spoken against
it and therefore the Pres‟s power is at its lowest ebb. The Fact that they didn‟t even sight this
case to refute it makes the argument even weaker.
3. Hamdi v. Rumsfeld (S.Ct. 2004): After “AUMF” was enacted and U.S. forces went into Afghanistan,
the gov‟t obtained Yaser Hamdi, a U.S. citizen was seized in Afghanistan. He was taken to
Guantanamo Bay, but when they learned he was a U.S. citizen, they transferred him to a navel brig
in VA and then SC.
a) Gov‟ts Claim: Hamdi is an “enemy combatant” and can be held without trial. Hamdi filed a
write of habeas corpus in VA.
b) Issue: Whether the Exec has the authority to detain citizens who qualify as “enemy combatants”?
(1) Doesn‟t question whether Hamdi was correctly given this title.
(2) 18 U.S.C. § 4001(a): “no citizen shall be imprisoned or otherwise detained by the U.S. except
pursuant to an Act of Congress.”
c) O‟Connor Opinion (4 in plurality, 2 concurring w/ it in part):
(1) Does the Exec need Congress‟ Approval: The gov‟t maintains that no explicit congressional
authorization is required, b/c the exec possesses plenary authority to detain pursuant to Art.
II; but in any case Congress has in fact authorized Hamdi‟s detention through “AUMF”
(a) Court doesn‟t reach the answer to plenary power under Art. II, b/c they agree w/ the
alternative position that AUMF is congressional authorization.
(b) Congress passed § 4001(a) in 1971 to repeal the Emergency Dentention Act of 1950 that
provided for the Japanese Internment Camps.
(i) Gov‟t claims: 1) this last (in light of leg history) applies only to “the control of
civilian prisons and related detentions,” not to military detentions; and 2) § 4001(a) is
satisfied b/c Hamdi is being detained pursuant to an Act of Congress – AUMF.
(ii) B/c the Ct agrees with (2) they do not address the first gov‟t claim (assuming w/o
deciding that § 4001(a) applied to military detentions and that such authorization was
(c) There is no doubt that individuals righting with the Taliban, known to have supported Al
Qaeda, are the individual Congress was seeking to target in passing AUMF.
(d) The Ct. also concludes that detention of such individuals for the duration of the conflict is
fundamentally an incident of war as to be “necessary and proper force” that Congress
authorized the Pres to use.
(e) In Quirin, the court held that “citizens who associate themselves w/ the military arm of
the enemy…are enemy belligerents w/in the meaning of the law of war.” Such a citizen,
if released, would pose the same threat of returning to the front during the ongoing
(f) It‟s doesn‟t matter that AUMF doesn‟t use language of detention b/c detention is a
fundamental incident of war, so Congress‟s permitting the use of “necessary and
appropriate force” clearly authorizes detention in the circumstances here.
(g) Indefinite / Unlimited Detention: Hamdi objects that Congress has not authorized
indefinite detention. Gov‟t responds that detention of enemy combatants in WWII was
just as indefinite while that war was being fought.
(i) The Ct. takes Hamdi‟s objection not to be the lack of certainty regarding the end date
of the conflict, but to the substantial prospect of perpetual detention.
(ii) The “War on Terror” is very unconventional and the current conflict is unlikely to
end w/ a formal cease-fire agreement: Hamdi‟s detention could last the rest of his life.
(iii)BUT, active combat operations against Taliban fighters apparently are ongoing in
Afghanistan. If the record est. that U.S. troops are still involved in active combat in
Afghanistan, those detentions are part of the exercise of “necessary and appropriate
force,” and therefore authorized by AUMF.
(h) Ex parte Milligan doesn‟t undermine our holding about gov‟t authority to seize enemy
combatants. That Ct made repeated reference to the fact that its inquiry into whether the
military tribunal had jx to try and punish Milligan turned in large part on the fact that
Milligan was NOT a POW, but a resident of Indiana arrested while at home.
(i) The Cts repeated explanation that Milligan was not a POW suggest that had these diff
circumstances been present he could have been detained under military authority for
the duration of the conflict, whether he was a citizen or not.
(2) What Process is Due?: Hamdi argues that he is owed a meaningful and timely hearing and
that “extra-judicial detention that begins and ends with the submission of an affidavit based
on 3rd-hand hearsay” does not comport w/ the 5th and 14th Amends. Gov‟t responds that
any more process would be both unworkable and const. intolerable
(a) Absent suspension, the writ of habeas corpus remains available to every individual
detained w/in the U.S.: All agree that suspension of the writ has not occurred here. Thus
it is undisputed that Hamdi was properly before an Art. III ct to challenge his detention.
(i) 28 U.S.C. § 2241 and its companion provisions provide at skeletal outline of the
procedures to be afforded a petitioner in fed habeas review.
(a) § 2243: “the person detained may deny any of the facts set forth against him or
allege any other material facts.”
(b) § 2246: allows the taking of evidence by deposition, affidavit, or interrogatories.
(c) § 2241 makes clear both 1) that Congress envisioned that habeas petitioners
would have some opportunity to present and rebut facts; and 2) cts in cases like
this retain some ability to vary the ways in which they do so as mandated by due
(ii) The Gov‟t recognizes the basic procedural protections but asks the Ct to hold that
given the flexibility of habeas mechanisms and the circumstances presented in this
case, that the presentation of the Mobbs Declaration (a short declaration of the gov‟ts
facts in a detention – Hamdi was affiliated w/ the Taliban, surrendered to Northern
Alliance forces while carrying a rifle – that‟s all) to the Ct completed the required
factual development for 2 reasons (discussed in (b) and (c)).
(b) Gov‟t 1st Argument: B/c it is undisputed that Hamdi‟s seizure took place in a combat
zome, the habeas determination can be made purely as a matter of law, w/ no further
hearing or factfinding necessary.
(i) Court: Rejected. The circumstances surrounding Hamdi‟s seizure cannot be
characterized as “undisputed” as those circumstances are neither conceded in fact nor
susceptible to concession in law – b/c Hamdi hasn‟t been permitted to speak on his
behalf or even through counsel as to those circumstances.
(ii) An assertion that one resided in a country in which combat operations are taking
place is not a concession that one was captured in a zone of active combat operations
in a foreign theatre of war and certainly not a concession that one was engaged in
armed conflict against the U.S.
(iii)“We reject any argument that Hamdi has made concessions that eliminate any right to
(c) Gov‟t 2nd Argument: Further factual exploration is unwarranted and inappropriate in
light of the extraordinary const. interests at stake. Respect for separation of powers and
the limited institutional capabilities of cts in matter of military decision-making ought to
eliminate entirely any individual process, restricting the cts to only investigating whether
legal authorization exists for the broader detention scheme.
(i) Court: Basically the gov‟t thinks the courts should only determine that a citizen is an
enemy combatant under a very deferential “some evidence” standard. The Ct should
assume the accuracy of the Mobbs Declaration.
(ii) There is a tension that often exists btwn the autonomy the Gov‟t asserts is necessary
to pursue a particular goal and the process that a citizen contends is due before he is
deprived of const. rights.
(iii)Mathews v. Eldridge Test: Mechanism ordinarily used for balancing such serious
competing interests: The process due in any instance is determined by weighing “the
private interest that will be affected” against the Gov‟t interest, “including the
function involved and the burdens the gov‟t would face in providing greater process.”
(a) Hamdi‟s Private Interests: The most elemental of liberty interests – the interest in
being free from physical detention by one‟s own gov‟t. This is NOT offset by the
circumstances of war or the accusation of treasonous behavior. History and
common sense teach us that an unchecked system of detention carries the
potential to become a means for oppression and abuse of others who do not
present that sort of threat.
(b) Gov‟ts Interest that Enemy‟s Don‟t Return to Battle: Without doubt, our Const.
recognizes that core strategic matters of war-making belong in the hands of those
who are best positioned and most politically accountable for making them.
(i) The gov‟t argues that hightened process would create practical difficulties b/c:
1) military officers would be distracted from serious work by litigation half a
world away, and 2) discovery into military operations would intrude on the
sensitive secrets of national defense and result in a futile search for evidence
buried under rubble of war.
(c) Striking the Proper Const. Balance: The process suggested by neither side strikes
the right balance.
(i) A citizen-detainee must receive notice of the factual basis for his classification
and a fair opportunity to rebut the Gov‟t assertions before a neutral
(ii) Aside from these core elements, proceedings may be tailored to alleviate their
uncommon potential to burden the exec at a time of ongoing military conflict.
(iii)Ex: 1) hearsay may need to be accepted as the most reliable evidence; 2) there
can be a presumption in favor of the gov‟t evidence as long as its rebuttable;
3) requiring a knowledgeable affiant to summarize the records to an
independent tribunal is allowed.
(iv) The initial captures on the battlefield need not receive this process; that
process is due only when the determination is made to continue to hold those
who have been seized.
(d) Holding on Due Process Required: The Ct. rejects the Gov‟ts assertion that separation of
powers mandates a heavily circumscribed role for the cts in such circumstances. This
approach serves only to condense power into a single branch of gov‟t. A state of war is
not a blank check for the Pres when it comes to the rights of the Nation‟s citizens.
(i) Whatever power the Const. envisions for the exec in its exchanges w/ other nations or
enemies, it most assuredly envisions a role for all 3 branches when individual liberties
are at stake.
(ii) Unless Congress acts to suspend it, the Great Writ of Habeas Corpus allows the
judiciary to play a necessary role in maintaining this delicate balance of governance.
(iii)The proposed “some evidence” standard is inadequate: this standard is ill suited
where a petitioner has received no prior proceedings before any tribunal and had no
prior opportunity to rebut the exec‟s factual assertions before a neutral decisionmaker.
(iv) “An interrogation by one‟s captor, however effective an intelligence-gathering tool,
hardly constitutes a constitutionally adequate fact-finding before a neutral.”
(v) IT IS POSSIBLE that the proper standards could be met by a military tribunal b/c the
military already provides for such a process when detainees assert POW status.
(3) Hamdi said he was entitled to immediate counsel: Hamdi was appointed counsel after the
S.Ct. granted cert, therefore no further consideration is needed here. BUT: He unquestionably
has the right to access to counsel in connection w/ the proceedings on remand.
d) Souter & Ginsburg Concurrence/Dissent: The threshold question is how narrowly or broadly to
read the Non-Detention Act (§ 4001(a)). The answer is that the prohibition w/in § 4001(a) has to
be read broadly to accord the statute a long reach and to impose a burden of justification on the
(1) The circumstances in which the act was adopted point to this interpretation: Congress meant
to preclude another episode like the one described in Korematsu. Congress could have
simply struck the 1950 statue, but Congress felt that a proposed limit on exec. action, which
was expanded by the 1950 statute, was needed and therefore enacted § 4001(a) – this is a
powerful reason to think that it was meant to require clear congressional authorization b4
any citizen can be placed in a cell – this intended to preclude reliance on vague leg auth.
(2) Principle of Statutory Interpretation: Ex parte Endo (same day as Korematsu) set out a
principle for scrutinizing wartime statutes in derogation of customary liberty: “we must
assume that a wartime measure‟s purpose was to allow for the greatest possible
accommodation btwn liberties and exigencies of war. We must assume that the law makers
intended to place no greater restraint on the citizen than was clearly and unmistakably
indicated by the language they used.” – therefore § 4001(a) must be read to have teeth in its
demand for congressional authorization.
(3) The Executive Branch is not Entrusted w/ Deciding Finally what is a Reasonable Degree of
Guarantee of Liberty in Peace or War: The branch of gov‟t asked to counter a serious threat
is not the branch on which to rest of Nation‟s entire reliance in striking the balance between
the will to win and the cost in liberty on the way to victory. Madison said it‟s the aim to
divide and arrange the offices in such a manner as each may be a check on the other – that
the private interest of every individual may be a sentinel over the public rights.
(4) NONE OF THE GOV‟Ts ARGUMENTS JUSTIFY HAMDI‟S DETENTION:
(a) § 4001(a) Doesn‟t Apply to Wartime Military Detentions (based on placement in the
code – fed criminal law): The text and the leg history of the statute does not so limit its
reach. Leg history indicates that Congress was aware that §4001(a) would limit the
exec‟s power to detain citizens in wartime to avoid anything like detention camps again.
(b) The terms of the AUMF are Adequate to Authorize Detention: AUMF speaks w/
generality – it never so much as uses the word detention, and there is no reason to think
Congress might have perceived days after 9-11 any need to augment exec power to deal
w/ dangerous citizens w/in the U.S. given the well-stocked statutory arsenal of defined
criminal offenses covering the gamut that a citizen sympathetic to terrorism might
(i) There is the argument that the military authorized to deal w/ belligerents can do so
according to the laws of war. However, the gov‟ts legal position in its campaign is at
odds w/ its claim here to be acting in accordance with the law of war:
(ii) Gov‟t says the Geneva Convention applies to Taliban detainees, Hamdi is a Taliban
detainee it claims, therefore qualifying for treatment as a POW. BUT by holding him
incommunicado the gov‟t has not been treating him as POW and in facts claims that
no Taliban detainee is entitled to POW status.
(iii)The gov‟t answers that the Pres‟s determination that Taliban detainees don‟t get POW
status is conclusive b/c if they were that would trigger the Convention‟s tribunal
requirement and military regulations also adopt the Geneva Convention in
determining an enemy‟s status. THUS there is reason to question whether the U.S.
is acting in accordance w/ the laws of war it claims as authority.
(c) The gov‟t has not made out its claim that in detaining Hamdi in the manner described, it
is acting in accord w/ the laws of war authorized to be applied against citizens by AUMF.
The gov‟t has failed to support the position that AUMF authorizes detention for purposes
e) Scalia and Stevens Dissent: A U.S. citizen could not be held by the gov‟t in the U.S. w/o trial
absent a suspension of the Writ of Habeas Corpus. The Ct was wrong to try and “Make
Everything Come Out Right” b/c that‟s not the role of the court.
f) Thomas Dissent: Disagreed w/ the plurality‟s due process analysis. Citing The Prize Cases,
Curtiss-Wright, and Dames & Moore says that the Pres has acted well w/in his authority.
g) [Several months after this decision, the gov‟t released Hamdi to his family in Saudi Arabia]
4. Padilla v. Rumsfeld (S.Ct. 2004): U.S. citizen, caught in the U.S., held in Federal Prison.
a) Courts duct out the issue b/c they know the exec won‟t back them / enforce their decree. They
hold that Padilla filing in the wrong court; he goes back and files in the right court; Then the
exec just let him go through the fed cts system.
b) Allows the S.Ct. to avoid the issue, BUT, the exec. conceding suggests that Ex Parte Milligan
still has force: If it‟s a U.S. citizen on U.S. soil then you have to let them go through the normal
c) But, the CoA for the 4th Cir, where he was finally tried, concluded the Pres did have authority
under AUMF to detain Padilla as an enemy combatant. The gov‟t presented a lot of evidence,
and based on those facts the court found that as AUMF authorized Hamdi‟s detention by the
Pres, it also authorized Padilla‟s detention.
d) The fact that Padilla was seized on U.S. soil doesn‟t eliminate the detention authority granted by
AUMF b/c Padilla poses the same threat of returning to the battlefield as Hamdi.
e) The ct also noted that the plurality in Hamdi relied on Quirin, which involved capture on U.S.
soil of a U.S. citizen.
5. Rasul v. Bush (S.Ct. 2004): Held that fed cts have jx to determine the legality of the exec‟s
potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Hled
that Guantanamo Bay is in every practical respect a U.S. territory which the writ reaches and if far
from any hostilities. “Whatever traction the presumption against extraterritoriality might have in
other contexts, it certainly has no application to the operation of the habeas statute w/ respect to
persons detained w/in the terr. jx of the U.S.”
6. Detainee Treatment Act of 2005: (Text on handout)
7. Hamdan v. Rumsfeld (S.Ct. 2006): Hamdan is a Yemeni national, captured by Afghan forces and
turned over to U.S. military who took him to Guantanamo. Bush deemed him eligible for trial by
military commission and he was charged.
a) Stevens, Souter, Ginsburg and Breyer Opinion (except Parts V and VI-D-iv): [First concluded
that the Detainee Treatment Act of 2005 (on handout), which restricted habeas corpus jx over
challenges brought by detainees at Guantanamo, did not apply to cases, like this one, that were
pending on the date of the DTA’s enactment. The Ct. also rejected the gov‟ts arguments for
abstention (P.Q., stand/moot/ripe).
(1) IV: The military commission was born of military necessity in 1847 in the occupied
Mexican terr. (not in the Const. or created by statute). General Scott created “military
commissions” to try ordinary offenses in the terr. and a “council of war” to try offenses
against the law of war. During the civil war a single tribunal was used. The need for a
military commission was driven largely by the then very limited jx of courts-martial which
was restricted by statute exclusively to members of the military force and certain offenses
defined in a written code.
(a) Exigency alone will not justify the est. and use of penal tribunals not contemplated by Art
I, § 8, and Art. III, § 1 unless some authority is derived from the powers granted jointly to
the Pres. and Congress in time of war.
(b) Quirin held that Congress had, through Art. of War 15, authorized the use of military
commissions. Art. 21 of the UCMJ is substantially identical to the old Art. 15:
(i) Jx of courts-martial not exclusive. The provisions of this code conferring jx upon
courts-martial shall not be construed as depriving military commissions, provost cts,
or other military tribunals of concurrent jx in respect of offenders or offenses that by
statute or by the law of war may be tried by such military commissions, provost cts,
or other military tribunals.
(ii) Even Quirin did not view the authorization of Art. 15 as a sweeping mandate for the
Pres to invoke military commissions when he deems them necessary, the ct rather
recognized that Congress had preserved what power the Pres had had before 1916 to
convene them - with the express condition that the Pres comply with the law of war.
(c) The Gov‟t wants to claim that AUMF or DTA give specific authorization for the
commission that has been convened to try Hamdan. Neither of these congressional Acts
expands the Pres‟s authority to convene military commissions.
(i) Together AUMF and UCMJ at most acknowledge a general pres authority to convene
military commission in circumstances where justified under the Const and laws,
including the law of war** The task is then to decide whether Hamdan‟s military
commission is so justified by law.
(2) V (without Stevens): The gov‟t must make “substantial showing that the crime for which it
seeks to try a Δ by military comm. is acknowledged to be an offense against the law of war.”
Hold that the gov‟t has not met that burden b/c “the crime of conspiracy” has rarely if ever
been tried as such in this country by any law-of-war military comm.. not exercising some
other form of jx, and it doesn‟t appear in either the Geneva or Hague Conventions.
(3) VI: Whether or not the gov‟t has charged Hamdan w/ an offense against the law of war, the
comm. still lacks power to proceed. The UCMJ conditions the Pres‟s use of military comm.
on compliance not only w/ Amer. common law of war, but also w/ the rest of the UCMJ itself
and with the “rules and precepts of the law of nations,” including among other things the 4
Geneva Conventions signed in 1949. * The procedures the gov‟t has decreed will govern the
comm. violate these laws.*
(a) Procedures: 1) accused is entitled to appointed military counsel and civilian counsel w/
appropriate security clearances; 2) a presumption of innocence, 3) certain other rights
typically afforded criminal Δ in civilian cts and courts-martial; however 4) the accused
and his civilian counsel may be precluded from learning what evidence was presented at
any point that the presiding officer decides to “close.” The appointed military counsel
must have access to these closed sessions, but can be forbidden to reveal what took place
to their client. Also, 5) permit the admission any evidence that would have probative
value to a reasonable person: hearsay, and evidence obtained by coercion. The accused
and his civilian counsel may be denied access to evidence so long as the presiding officer
concludes its “probative” and its admission w/o the accused‟s knowledge wouldn‟t result
in the denial of a full and fair trial. 6) 2/3 vote suffices for both a guilty verdict and
sentencing as long as its not a death sentence (which need unanimity).
(c) Procedures for military comm. and courts-martial have historically been the same: Any
departure from the UCMJ must be tailored to the exigency that necessitates it. This is
reflected in Art. 36 of the UCMJ: (a) The procedure in cases before courts-martial, cts of
injuiry, military comm. and military tribunals may be prescribed by the Pres which shall
apply the principles of law and the rules of evidence generally used in criminal trials in
the U.S., but which may not contradict this chapter; (b) All rules and regs made shall be
uniform insofar as practicable and shall be reported to Congress.
(i) Art 36 restrictions: 1) no procedural rule may be contrary to or inconsistent w/ the
UCMJ; and 2) the rules must be uniform insofar as practicable – The Rules applied to
military comm. must be the same as those applied to courts-martial unless such
uniformity proves impracticable.
(ii) Court concludes: the “practicability” determination of the Pres is insufficient to
justify variances from the procedures governing courts-martial.
(iii)**Court assumes that complete deference is owed to the Pres‟s determination that the
procedures for normal criminal trials is impracticable, BUT the Pres has not made a
similar official determination that its impractical to apply the rules of courts-martial.
(a) This is particularly disturbing when considering the admitted failure to apply one
of the most fundamental protections afforded by the Manual for Courts-Martial
and the UCMJ: the right to be present.
(iv) Held: The rules applicable to courts-martial must apply**
(d) Procedures adopted violate the Geneva Conventions: The Court disagrees that the war
with al Qaeda evades the reach of the Geneva Conventions.
(i) Gov‟t: the conflict w/ al Qaeda is not a conflict which the full protections afforded to
detainees under the Geneva Conventions apply b/c Art. 2 of those Conventions
(which appears in all four conventions) renders the full protections applicable only to
“all cases of declared war or any other armed conflict which may arise btwn two or
more of the High Contracting Parties.” Since al Qaeda is not the Taliban or
Afghanistan and is therefore not a High Contracting Party, the protections afforded
those are not applicable to Hamdan.
(ii) Court: doesn‟t decide this issue b/c there‟s another article in the Conventions that
does apply – Art. 3 (referred often to as Common Art. 3) provides that in a “conflict
not of an int‟l character occurring in the terr. of one of the High Contracting Parties,
each Party to the conflict shall be bound to apply, as a minimum, certain provisions
protecting persons…. One such provision prohibits the “passing of sentences and
carrying out of executions w/o previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which are recognized as
indispensable by civilized people.”
(a) The gov‟t says the al Qaeda conflict is of an int‟l character; but Court says that
means that its not your typical war btwn nations and they‟re misreading it!
(iii)Common Art. 3 is applicable here and requires that Hamdan be tried by “a regularly
constituted court affording all the judicial guarantees which are recognized as
indispensable by civilized people.”
(4) It bears emphasizing that Hamdan doesn‟t challenge the gov‟ts power to detain him, but the
exec is bound to comply w/ the Rules of Law that prevails in this jx.
b) Breyer, Kennedy, Souter and Ginsburg Concurring: The Courts conclusion rests upon a single
ground: Congress has not issued the Exec a “blank check” and they have in fact denied the Pres
the leg authority to create military comm. of the kind at issue here. Nothing prevents the Pres
from returning to Congress to seek the authority he needs, and judicial insistence upon that
consultation does not weaken our Nation‟s ability to deal w/ danger. To the contrary that
insistence strengthens the Nation‟s ability to determine through democratic means how best to do
so. The Const. places its faith in those democratic means, our Court today simply does the same.
c) Kennedy, Souter, Ginsburg and Breyer (as to Parts I and II): Located w/in a single branch, these
military comm. carry the risk that offenders will be defined, prosecuted, and adjudicated by exec
officials w/o independent review. Concentration of power puts personal liberty in peril of
arbitrary action by officials, an incursion the Const‟s 3-part system is designed to avoid.
Jackson‟s 3 Zone is where this exec action is housed.
d) Scalia, Thomas, Alito Dissent: The DTA deprived the S.Ct. of jx.
e) Thomas Dissent: Disagreed w/ the conclusion that the military comm. violates Common Art. 3.
(1) The meaning attributed to treaty provisions by gov‟t agencies is entitled to great weight, and
our duty to defer to the Pres‟s understanding of the provision is only heightened by the fact
that, acting pursuant to the commander-in-chief power, the subject matter of Common Art. 3
calls for a judgment about the nature and character of an armed conflict.
(2) The court is adopting its own, admittedly plausible, reading of Common Art. 3; but where a
provision is ambiguous in a treaty, the Court‟s precedents require us to defer to the Exec.
b) ** Justice Roberts did not participate in the Decision**
7. Boumediene v. Bush (D.C. Cir. 2007):
a) History of the Case: The S.Ct. held in Rasul v. Bush (2004) that habeas statue extends to aliens at
Guantanamo. The Court determined that the district ct‟s jx over the detainees‟ custodians was
sufficient to provide subject-matter jx under §2241. The Court further held the D.C. had jx over
the detainees‟ non-habeas claims b/c nothing in the fed question statute or the Alien Tort Act
categorically excluded aliens outside the U.S. from bringing such claims.
(1) During all this, Congress responded w/ the DTA of 2005 which added subsection (e) to the
habeas statute: “except as provided in §1005 of the DTA, no court, justice, or judge may
exercise jx over: (1) an application of a writ of habeas corpus filed by or on behalf of an alien
at Guantanamo; or (2) any other action against the U.S. relating to any aspect of the detention
of an alien at Guantanamo who: (a) is currently in military custody; or (b) has been
determined by the U.S. CoA of D.C. to have been properly detained as an enemy combatant.
(2) The “except as provided” referred to (e)(2) and (e)(3) of that section, which provided for
exclusive judicial review of: Combatant Status Review Tribunal determinations and military
comm. decisions by the D.C. Circuit only.
(3) Then the S.Ct decided Hamdan, which among other things, held that the DTA didn‟t strip fed
cts of jx over habeas cases pending at the time of the DTA‟s enactment. Subsections (e)(2)
and (e)(3) said they applied w/ respect to any claim pending on or after the date of
enactment; but subsection (e)(1) did say that. The S.Ct. found that Congress chose not do to
so after being presented w/ the option to do so, the Ct. concluded that the omission was an
integral part of the statutory scheme.
(4) In response to Hamdan, Congress passed the Military Commissions Act of 2006: §7 entitled
“Habeas Corpus Matters” amended §2241(e) again: (1) no ct shall have jx to entertain a writ
of H.C. filed by or on behalf of an alien by the U.S. who has been determined to be an enemy
combatant or is awaiting such determination; (2) no ct will have jx to hear any other action
against the U.S……properly detained as an enemy combatant or is awaiting such
determination. Subsection (b) then says that (a) shall take effect on the date of the
enactment of the Act, and shall apply to all cases, without exception, pending on or after the
date of the enactment.
b) Questions: 1) Does MCA apply to the detainees‟ habeas petitions; and if it does then 2) is the
statute an unconstitutional suspension of the writ of habeas corpus?
c) Circuit Judge Randolph Opinion:
(1) Question 1: The detainees‟ lawsuits fall w/in the subject matter covered by amended
§2241(e) and the MCA brings “all such cases, without exception,” within the new law.
Everyone who has followed the interaction btwn Congress and the S.Ct. knows full well that
one of the primary purposes of the MCA was to overrule Hamdan – (both the proponents and
opponents of §7 understood the provision to eliminate habeas jx over pending cases) –
everyone except the detainees who are still arguing their cases aren‟t covered. Their
arguments are creative, but not cogent. * To accept them would be to defy the will of
(a) Judge Randolph attends to the detainees claims that the statute is still unclear for a few
pages – but the statute is clear that Congress was revoking jx for habeas claims and non
habeas claims of the detainees against the U.S.
(2) Question 2: The Suspension Clause of the Const (Art. I, § 9, cl. 2) states that “The Privilege
of the Writ of Habeas Corpus shall not be suspended unless, when in Cases of Rebellion or
Invasion, the public Safety may require it.”
(a) The S.Ct. has stated that the Suspension Clause protects the writ as it existed in 1789
when the first Judiciary Act created the fed cts and granted jx to issue writs.
(b) The ct then examines old English cases to see what they extended to: Habeas Corpus
only extended to the King‟s dominions – sovereign terr. of the Crown. Even British
citizens imprisoned in remote places were prevented from the benefit of the law. Part of
this was the practicality at the time – there was a time limit and producing a prisoner
before the court was impossible.
(i) The Point: Given the history of the writ in England prior to the founding, H.C. would
not have been available in 1789 to aliens w/o presence or property w/in the U.S.
(ii) Johnson v. Eisentrager (S.Ct. 1950): “We are cited to no instance where a court, or
any in any other country where the writ is known, has issued it on behalf of an alien
enemy who, at no relevant time and in no stage of his capacity, has been w/in its terr.
jx. Nothing in the Const. extends such a right, nor does anything in our statutes.”
(a) * the important part isn‟t the “enemy” term, b/c the dispositive fact was not
petitioner‟s status, but his lack of presence w/in any sovereign terr.
(iii)Rasul didn‟t cite any cases either that said the opposite of this.
(c) Precedent in this court and the S.Ct. holds that the Const. doesn‟t confer rights on aliens
w/o property or presence w/in the U.S.
(i) Johnson v. Eisentrager, found that the Fifth Amend doesn‟t confer its rights on all the
world…if it did it would mean that during military occupation any enemy could
require the Amer. judiciary to assure them freedoms of speech, press and
(ii) U.S. v. Verdugo-Urquidez, said that w/ respect to aliens, our rejection of
extraterritorial application of the 5th Amend was emphatic. The 4th Amend also
doesn‟t protect nonresident aliens against unreasonable searches or seizures
conducted outside the terr. of the U.S. [this is also cited in Zadvydas v. Davis 2001]
(d) Guantanamo Bay is under an indefinite lease from Cuba, and Cuba has sovereignty over
it. The “determination of sovereignty over an area is for the leg and exec depts.”
Vermilya-Brown v. Connell (S.Ct. 1948). Here the political branches have spoken clearly
and firmly: “U.S., when used in the geographic sense does not include the Naval Station
at Guantanamo Bay, Cuba.” DTA §1005(g)
(e) The Dissent: The Suspension Clause is a limitation on congressional power not a const.
right. Maj: But this doesn‟t mean anything – all Const. rights are limitations on
(f) The Dissent: The Suspension Clause is different from the 4th, 5th and 6th Amends b/c it
does not mention individuals and those amends do. Maj: Why does this matter? The
other Amends don‟t mention individuals, but are surely for individuals, and petitions for
H.C. are filed by individuals.
(g) The Dissent: Looks to Bill of Attainder and Ex Post Facto Clauses, located next to the
Sus.Cl. Maj: The fact that the Sus.Cl. abuts the bills of attainder and ex post facto laws
(provisions well-accepted to protect individual liberty) further supports viewing the
habeas privilege as a core individual right.
(h) ** The Maj thinks that the Dissent is trying to characterize the Sus.Cl. as something other
than a Const. right (which they‟ve discussed aren‟t applicable to aliens outside our terr.)
b/c it its something else than a right it could apply to aliens. The Maj seriously
misunderstands the Dissent’s argument and therefore these responses to that
position don’t actually counter the Dissent’s argument.
(3) Fed Cts have no Jx in these Cases: The gov‟t has asked the D.C. Cir to not only decide the
habeas jx question, but also to review the merits of detainees‟ designation as enemy
combatants. Detainees have objected to converting their habeas petitions into an appeal from
(a) Even if the CoA had authority to convert the habeas appeals over the petitioners‟
objections (which the Maj thinks they don‟t have b/c of the common law application of
the writ), the record doesn‟t have sufficient information to perform the review the DTA
(b) Vacated and Dismissed.
d) Circuit Court Judge Roberts Dissenting: While I agree that Congress intended to withdraw fed jx
through the MCA, the court‟s holding that the MCA is consistent w/ the Sus.Cl. does NOT
(1) ** Far from conferring an individual right that might pertain only to persons substantially
connected to the U.S., the Sus.Cl. is a limitation on the powers of Congress**
(a) Prior to the enactment of the MCA, the S.Ct. acknowledged that the detainees held at
Guantanamo HAD a statutory right to habeas corpus. Rasul (2004).
(i) The MCA purports to withdraw that right, but does so in a manner that offends the
const. constraint on suspension. The Sus.Cl. limits its removal to times of rebellion
or invasion unless Congress provides an adequate alt. remedy.
(ii) * The writ would have reached the detainees at common law, and Congress has
neither provided an adequate alt. remedy (through the DTA), nor invoked the
exception to the Clause by making the required findings to suspend the writ = The
MCA is VOID and does not deprive this ct or the dist cts of jx.
(2) Nature of the Sus.Cl., The Retroactive Effect of the MCA, & MCA and the Const.:
“Where a ct has no jx it is powerless to act, but a statute enacted by Congress purporting to
deprive a ct of jx binds that ct only when Congress acts pursuant to the powers it derives
from the Const.”
(a) How the Sus.Cl. Applies to this Case, & the Meaning of the Sus.Cl.: The maj holds that
Congress may suspend the writ as to detainees because they have no individual rights
under the Const. – It is unclear where the ct finds that the limit on suspension of the writ
is an individual entitlement. This clause appears in Art. I, § 9 – which enumerates those
actions expressly excluded from Congress‟s powers. Only Congress may do the
(i) The other provisions of Art. I, § 9 indicate how to read the Sus.Cl.:
(a) No Bill of Attainder or Ex Post Facto Law shall be passed. – The S.Ct. has
construed the Attainder Clause as est. a “category of Congressional actions which
the Const. barred.” The Ex Post Facto Law – “restricts gov‟t power by restraining
arbitrary and potentially vindictive leg” and acknowledge that the clause confines
the leg to penal decision w/ prospective effect.”
(b) For like reasons: An act in violation of the Sus.Cl. is void and cannot operate to
divest a ct of jx.
(ii) The maj dismisses the distinction btwn individual rights and limitations on Congress:
(a) Individual rights are merely a subset of those matters that constrain the leg.
(b) The point here is that the bill of rights are given to the individuals who have those
protections under the Const. only (citizens, residents, or those owning property in
the U.S.), BUT the limitations specific to Congress are limits that apply always to
the actions of Congress with respect to anyone. They can‟t do those things ever.
(c) It is implausible that the Framers would have viewed the Sus.Cl. as a budding Bill
of Rights but would not have assigned the provision its own section of the Const.
INSTEAD: the ct must treat the Sus.Cl.‟s placement in Art. I, § 9 as a conscious
determination of a limit on Congress‟s powers.
(iii)The maj alludes that the Sus.Cl. cannot apply to foreign military conflicts b/c the
exception extends only to cases of “Rebellion or Invasion,” but then ignore it.
(a) The Framers understood that the writ was of such great significance that its
suspension should be strictly limited to circumstances where the peace and
security of the Nation were jeopardized – Careful consideration resulted in the
decision to limit its suspension to these two occasions only.
(b) To bereave a man of life w/o accusation or trial would be so gross and notorious
as must convey the alarm of tyranny throughout the whole nation; but
confinement by secretly hurrying him to jail, where his sufferings are unknown or
forgotten is therefore a more dangerous engine of arbitrary gov‟t.
(b) The MCA Seeks to Revoke Habeas Corpus Retroactively: At the time of Rasul the S.Ct.
held that the fed district cts had jx to hear writs of H.C. filed by persons detained in
Guantanamo; thereafter Congress enacted the DTA to deprive the fed cts of H.C. jx. The
S.Ct. held in Hamdan, that the DTA didn‟t apply retroactively.
(i) Agrees that the MCA speaks clearly of Congress‟s intent to make the DTA
retroactive and Congress sought in the MCA to revoke all fed jx retroactively as to
H.C. petitions of the detainees at Guantanamo. For different reasons than the maj, but
still the same result.
(c) The MCA is a Violation of the Const.: The S.Ct. has said that at a minimum, the Sus.Cl.
protects the writ as it existed in 1789. Therefore, at least insofar as H.C. existed in 1789,
Congress CANNOT suspend the writ w/o providing an adequate alt. except w/ rebellion
(i) Assessing the State of the Law in 1789: The maj emphasizes that no English cases
predating 1789 award the relief that the detainees seek in their petitions; BUT, the ct
can point to no case where an English ct has refused to exercise habeas jx b/c the
enemy being held was not w/in the Crown‟s dominions. * That legal process can be
evaded when prisoners are detained w/o access to the courts remains the case today,
and that 17th century Englishmen would have found access to cts difficult when sent
to faraway lands, says nothing about the availability of the writ at common law *
(a) The difficulty of finding direct precedent is a consequence of the unique
confluence of events that defines the situation of these detainees and NOT a
commentary on the reach of a writ at common law.
(b) Cite 3 cases where enemies were denied the merits of their claim to habeas, but
their claim was heard nonetheless. Chief Justice Marshall even granted habeas to
a British subject, a country we were at war with at the time, to contest his
detention in the U.S. (he did reside here though at the time…)
(c) Schiever (Swedish citizen) was able to contest his enemy status in British cts
where he was brought involuntarily, so his presence conferred no special rights.
In Verdugo-Urquidez, the S.Ct. said “involuntary presence is not the sort to
indicate any substantial connection w/ our country.” The gap btwn these people
and the detainees is exceedingly narrow.
(d) In Rasul, the S.Ct. stated that the application of H.C. to persons detained at
Guantanamo is consistent w/ historical reach of the writ – NO LEAP IN LOGIC
NECESSARY, the S.Ct. has already spoken.
(i) The maj ignores the settled principle that “carefully considered language of
the S.Ct, even if technically dictum, generally must be treated as
(ii) Even setting this principle aside, the maj offers no convincing analysis to the
(iii)[Rogers then knocks down what assertions the maj does make to the contrary]
(ii) Has Congress Provided an Adequate Alt. Procedure for Challenging Detention?:
(a) Congress can replace the privilege of the writ w/ a commensurate procedure w/o
overarching its const. ambit; HOWEVER, as the S.Ct. has cautioned, if a subject
of Exec detention “were subject to any substantial procedural hurdles which make
his remedy less swift and imperative than fed H.C., the gravest const. doubts
would be engendered under the Sus.Cl.” Sanders v. U.S. (1963).
(b) The Combatant Status Review Tribunals (CSRTs) est. by the DTA do not suitably
test the legitimacy of Exec detention – they impose a series of hurdles while
saddling each detainee w/ an assortment of handicaps that make the obstacles
(c) The core of the writ is the ability to “inquire into illegal detention w/ a view to an
order releasing the petitioner” – An examination of the CSRT shows that these
alts are neither adequate to test whether detention is lawful nor directed toward
releasing those who are unlawfully held.
(i) The procedures impede the process of determining the true facts
(ii) The fed cts review of the CSRT determinations does nothing to cure these
inadequacies; the ct can only review the record developed by the CSRT to see
that they have complied w/ their own screwed up standards.
(iii)Basically the district ct is not a suitable alt. b/c of the limited review they have
(iv) AND records show that at least 3 detainees were found by CSRTs not to be
enemy combatants, they were subjected to a 2nd and sometimes 3rd
proceeding until they were finally found to be enemy combatants.
(iii)The MCA is Void Unless Congress‟s Actions Fit into the Exception: Only on 4
occasions has Congress suspended the writ and each suspension has made specific
reference to a state of “rebellion” or “invasion” and each was limited to a duration of
(a) B/c MCA contains neither of these hallmarks of suspension; its attempt to revoke
fed jx that the S.Ct. held to exist exceeds the power of Congress.
(3) The Role for the Courts: The premise underlying the decision in Hamdi is that there is a role
for the judiciary and that history and common sense teach us that an unchecked system of
detention carries the potential for abuse of others who do not present that sort of threat. The
risk of wrongful detention of mere bystanders is acute where the exec detains indiv. w/o trial.
(a) It‟s difficult to parse out the role for the judiciary when the Pres‟s powers are at their
zenith (the Congress has supported his actions), but the Pres‟s powers are not unlimited.
(b) While judgments of military necessity are entitled to deference by the cts and while
temporary custody during wartime may be justified, the Exec has had ample time during
the 5 years in while detainees have been kept at Guantanamo to determine who is being
held and for what reason.
(c) Courts can conduct a searching review of the facts related to the Exec‟s claim, even
during wartime. Alien enemies are entitled to a judgment on the merits as to whether
their detention was justified (not just a determination of whether the CSRT used their
own procedures correctly).
V. States and Foreign Relations: States are far from irrelevant to U.S. F.R. State cts often decide cases
involving foreigners, and state laws regulate may aspects of a foreign national‟s activities. States sometimes
sent int‟l missions to foreign countries and est. sister-city relationships; they take potions on economic and
political issues w/ their purchasing and investing decisions. Even when this causes complaints by foreign
gov‟ts, the fed political branches often decline to preempt them.
A. Statutory Preemption:
1. Express preemption: The Congress says “we preempt state statutes” ex. – Fed. copyright statutes. In
foreign relations it‟s extremely rare.
2. Implied preemption is primarily the only type found in F.R.
a) Conflict Preemption – impossible to comply with both Fed and State statutes. If this is the case
the Fed. statute preempts the State statute.
b) Obstacle Preemption – 1) what is the objective of the Fed statute; then 2) does this State statutes
create an obstacle for the Fed statute to accomplish its objectives.
c) Field Preemption – where Fed statutory scheme occupies the field to such an extent that it
doesn‟t leave room for a State statute to occupy the field. This happens when a Federal statutory
scheme is very thorough and complete. This can also occur when the Federal interest in the
subject matter is so strong that we‟re going to assume that Congress meant to preempt State
statutes in this area (this one happens a lot more in foreign relations). This goes without saying
that Congress had the power to legislate in this are in the first place.
3. Hines v. Davidowitz (S.Ct. 1941): Penn‟s 1939 Alien Registration Act required aliens 18yrs or older
to register w/ the state, provide information, pay a $1 annual fee, and receive and carry an alien
registration card in order to avoid a fine or imprisonment. Before the case made it to the S.Ct.,
Congress passed the fed Alien Registration Act – required registration of aliens 14yrs or older to
register, provide information, finger-printing, but did not require them to carry or produce a card,
and it made only the willful failure to register a criminal offense.
a) Black Opinion:
(1) The authors of The Federalist in 1787 made clear that the supremacy of the national power
in the field of F.A., including power over immigration, naturalization and deportation. When
the national gov‟t by treaty or statute est. rules touching the rights, privileges or obligations
of aliens, the treaty or statute is the supreme law of the land.
(a) Experience has shown that the most grave of int‟l controversies may arise from real or
imagined wrongs to another‟s subjects by a gov‟t.
(b) Laws subjecting aliens, though perfectly law-abiding, to indiscriminate and repeated
interception and interrogation by public officials are no mere census requirements, and
even though associated w/ a local purpose, provoke questions in the field of int‟l affairs.
(c) The regulation of aliens is so intimately blended w/ responsibilities of the national gov‟t
that where it acts by statute or treaty, and the states act on the same subject, the fed law is
supreme and state law must yield to it; and…
(d) Where the fed gov‟t has enacted a complete scheme of reg. and has therein provided a
standard for the registration of aliens, states cannot, inconsistent w/ the purpose of
Congress, conflict or interfere with the fed law, or enforce additional or auxiliary regs.
(e) Standard: There isn‟t an infallible const. test or exclusive const. yardstick. Primary
function is to determine whether Penn‟s law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.
(i) Here: It‟s important that this leg is in a field which affects int‟l relations, the one
aspect of our gov‟t that from the beginning demands broad national authority;
Concurrent State power that may exist must be restricted to the narrowest of limits.
(ii) Appellee is correct that the power to regulate and register aliens is NOT an equal and
continuously existing concurrent power of state and nation.
(2) Has Congress acted in such a manner that it should preclude enforcement of State law?
Numerous treaties w/ other gov‟ts have pledged that aliens residing in our terr. won‟t be
singled out for discriminatory burdens – guaranteed aliens equal protection of the laws.
(a) Even if the Const. doesn‟t say registration of aliens is of such a natures that there can be
only one uniform system, it cannot be denied that Congress might validly conclude that
such uniformity is desirable b/c
(b) When Congress decided to pass a law on registration, it plainly manifest a purpose to do
so in such a way as to protect the personal liberties of law-abiding aliens through one
uniform national system and to leaves them free from the possibility of inquisitorial
practices and police surveillance which might affect our int‟l relations and generate the
disloyalty the law was intended to guard against.
b) Stone Dissent: Assuming that Congress could const. set up an exclusive registration system for
aliens, I think it has NOT done so and that it‟s not the province of the cts to do what Congress
has failed to do. At a time when fed power is rapidly expanding, it‟s important for the Court to
guard against such diminution of state power by vague inferences as to what Congress might
have meant if it had considered the matter or by referencing the Court‟s own conceptions of a
policy which Congress has NOT expressed and which is NOT plainly to be inferred from the leg
(1) It is conceded that the State law doesn‟t conflict w/ the fed law, and the fed law doesn‟t
purport to control or restrict state authority in any particular.
(2) But the Court says that by passing the fed law the national gov‟t has “occupied the field”
(a) EVERY act of Congress occupies some field, but we must know the boundaries of that
field b4 we can say that it has precluded a state from exercise of any power reserved to it
by the Const.
(b) Fed law, passed in aid of a granted power, obviously supersede State law with which they
(c) Congress also has wide scope for prohibiting state reg. of matters which Congress may,
but hasn‟t undertaken to regulate itself yet, but there are no words in the statute or
committee report that Congress intended to withdraw from the states any part of their
const. power over aliens w/in their borders.
(3) Congress must have been aware that some 19 states have regs requiring some form of
registration and a repeal of this leg is NOT to be inferred from the silence of Congress in
enacting a law which at no point conflicts w/ the state laws.
(a) Compliance w/ a state law doesn‟t interfere w/ compliance w/ a fed law.
(b) Just like revenue, licensing, or other police regs – they‟re applied to citizens b/c their
subject to dual sovereignty and equally apply to aliens alike.
4. De Canas v. Bica (S.Ct. 1976): Cali labor code provides that “no employer shall knowingly employ
an alien who is not entitled to lawful residence in the U.S. if such employment would have adverse
effect on lawful resident workers.”
a) Question: Is the Cali law unconst. either b/c 1) it is an attempt to regulate immigration and
naturalization, or 2) b/c it is preempted under the Supremacy Clause.
(1) The power to regulate immigration is clearly an exclusive fed power; BUT the Ct has never
held that every state enactment which in any way deals w/ aliens is a reg of immigration and
thus per se preempted by the const.
(2) Hines v. Davidowitz wouldn‟t have discussed the relevant congressional enactments to
compare to the state law if all state regs on aliens was ipso facto reg. of immigration and
therefore preempted. (nice move court, very slick)
b) Brennan Opinion: Cali has sought to strengthen its economy by adopting fed standards in
imposing crim sanctions against state employers who knowingly employ aliens who have no fed
right to employment anyway. Even if such local reg has some purely speculative and indirect
impact on immigrations, it does NOT thereby become a const. proscribed reg or immigration that
Congress itself would be powerless to authorize or approve. Thus, absent congress action, the
Cali law is not an invalid state incursion on fed power.
(1) Even when the Const. doesn‟t limit regulation of a field to the national gov‟t, but there are
situations where state reg must nevertheless be invalidated under the Sup.Cl. Fed regs should
NOT be deemed preemptive of state reg power except where there are other persuasive
reasons that permit no other conclusion, or the Congress has unmistakably so ordained. Here
we can preempt the state law for neither of these reasons.
(2) States posses broad authority under their police powers to reg the employment relationship to
protect workers w/in the State – the Cali law is within the mainstream of such police powers.
(3) Of course, even state regs designed to protect vital state interests must give way to paramount
fed leg. But we will NOT presume that Congress in enacting the INA (from last case)
intended to oust state authority to regulate employment w/ a law that is consistent w/
pertinent fed laws. Only a demonstration that complete ouster of state power was the “clear
and manifest purpose of Congress” would justify that conclusion. Florida Line & Avocado.
(4) INA has to do with admission to the country and subsequent treatment of aliens lawfully in
the country, which cannot be said to draw in the employment of illegal aliens as plainly w/in
that central aim of the fed reg.
(5) This is consistent w/ Hines b/c the fed statute was in the specific field which the States were
attempting to regulate and here the laws are in different fields – immigration / employment.
Also there‟s no predominant federal interest in local employers and local problems of
employment esp. where the fed gov‟t has already declared those aliens who are illegal cannot
work in this country.
5. Crosby v. National Foreign Trade Council (S.Ct. 2000): Mass. statute barring state entities from
buying goods or services from anyone identified on a “restricted purchase list” as doing business w/
Burma, w/ 3 exceptions: 1) procurement was essential and absent the restricted bid there would be
no competition, 2) procurement was for medical supplies; or 3) procurement efforts elicited no bids
that were less than 10% greater than the restricted bid. Congress statute imposed a set of mandatory
& conditional sanctions on Burma and applied to all U.S. persons and the Pres issued an exec order.
a) Souter Opinion: Congress has the power to preempt state law (Art. VI, cl. 2). But even w/o this,
state law must yield to a congressional Act in at two circumstances: 1) When Congress intends
fed law to “occupy the field”; or 2) Where state law is naturally preempted to the extent it
conflicts w/ a fed statute.
(1) We will find preemption where it is 1) impossible for a private person to comply w/ both
state and fed law (conflict), and where 2) the challenged state law stands as an obstacle to
accomplish the full purposes and objectives of Congress.
(a) The entire scheme of the fed statute must be considered and that which needs must be
implied is of no less force than that which is expressed – b/c if the object can‟t be
accomplished then the state law must yield (field).
(2) The State law undermines the intended purpose and “natural effect” of 3 provisions:
(a) Its delegation of effective discretion to the Pres to control the sanctions against Burma:
(i) Clearly intended to provide the Pres w/ flexible and effective authority over the
sanctions. It gave the Pres the power to begin and end the sanctions and to decide
which sanctions under the fed act to use.
(ii) The Mass law penalizes some private action that the fed law might allow, and pulls
levers of influence that the fed Act doesn‟t reach.
(iii)If the Mass law is enforceable the Pres has less of a chip to offer Burma for correcting
their H.R. violations b/c he could remove his sanctions, but if the Court said Mass‟s
law if valid as the power of the State, but he couldn‟t remove the state sanctions.
(iv) Therefore, if the state Act reduces the chips the Pres has to negotiate with (that the
fed Act gave), the state Act stands as an obstacle to the accomplishment of the full
purposes and objectives of Congress.
(b) Its limitation of sanctions solely to U.S. persons and new investment: The state Act
penalizes companies w/ pre-existing affiliates or investments, this is beyond the fed Act
which only restricts “new business” w/ Burma. The state law also imposes restrictions on
foreign co. as well as domestic, and the fed law is only reaches U.S. persons.
(i) State argues that the Acts have a common goal and some companies can comply with
both Acts; but that doesn‟t mean the state Act isn‟t at odds w/ the fed decision on the
right degree of pressure to employ.
(c) Its directive to the Pres to proceed diplomatically in developing a comprehensive,
multilateral strategy towards Burma: Congress gave the Pres. the ability w/ its approval to
negotiate w/ Burma using commerce and his diplomacy. The state Act undermines his
capacity for effective diplomacy. Their actions compromise the very capacity of the Pres
to speak for the Nation w/ one voice.
(i) A number of allies have complained to the National Gov‟t about Mass‟s law.
(ii) EU and Japan have lodged formal complaints against the U.S. to the WTO over it,
which has embroiled the Nat. Gov‟t in int‟l dispute proceedings.
(iii)The Exec has consistently said the Act has complicated its dealings w/ foreign
sovereigns and proven an impediment to the objectives assigned it by Congress.
(3) The State argues that Congress‟s failure to expressly preempt the Act demonstrates implicit
permission. This argument fails b/c:
(a) Congress relied on the settled character of implied preemption doctrine that cts apply
(b) The existence of conflict cognizable under the Sup.Cl. doesn‟t depend on express
congressional recognition that the laws conflict.
b) Why couldn‟t the State use it‟s “market participant” rights to say that they‟re the ones choosing
who to do business with, and therefore the Commerce Clause doesn‟t apply, and therefore they
can discriminate if they want to?
(1) Waters – this was very controversial case at the time; and the court would have just weighed
the State‟s interest in who to do business with, against the Congress/Pres‟s interest in
conducting foreign affairs policy.
B. Dormant and Exec Branch Preemption:
1. Dormant Preemption Doctrine - When it applies courts will invalidate the state statute even if there
is no federal statute on the matter b/c it violates the feds powers under the constitution. Has to be
more than incidental or indirect, does it get in the way of foreign affairs, is it motivated by foreign
policy attitudes, or is this going to cause the State gov‟t to be forming judgments or criticisms of
foreign gov‟ts. State laws potential impact OR motivations behind the statute OR if the statute will
criticize foreign gov‟ts (or a combination of these).
2. Zschernig v. Miller (S.Ct. 1968): A resident of OR died intestate and his sole heirs are residents of
East Germany. The State Land Board wanted the new proceeds of the estate under OR law which
provides for escheat in cases where a nonresident alien claims real or personal property unless 3
requirements are satisfied: 1) there exists a reciprocal right for a U.S. citizen to take property in that
foreign country; 2) the reciprocal right of U.S. citizens to receive payment of funds from estates in
that country; or 3) the right of foreign heirs to receive the proceeds of OR estates w/o confiscation by
a) The Dept of Justice as amicus curiae: requested that Clark v. Allen be overruled (it said that the
Treaty of Friendship w/ Germany meant they could take the realty, but not the personalty) b/c the
Treaty says that parties can dispose of their personal property “of every kind.” The Court
rejected the invitation to re-examine the ruling in Clark v. Allen.
b) Douglas Opinion: The OR statute clearly is an intrusion by the state into the field of F.A. which
the Const. entrusts to the Pres. and Congress. The Court allowed in Clark v. Allen the Cali
statute that had just a general reciprocity clause which did not on its face intrude on the federal
domain b/c it would have only some incidental or indirect effect in foreign countries. OR‟s
statute here puts the burden on nonresident aliens to prove that their gov‟t won‟t take the
property in order for them to be entitled to it, when it used to be a general reciprocity
requirement until 1951.
(1) State courts frequently must read, construe and apply laws of foreign nations and they‟re not
precluded from doing that function, albeit there‟s a remote possibility that any holding may
disturb a foreign gov‟t. Basically, a general reciprocity statement means state cts are looking
at the laws of a country to see if a U.S. could obtain estate from an heir there or not; but the
new wave of inheritance laws require a launch into inquiry about the type of gov’t is credible
or made in good faith.
(2) The Dept of Justice stated that OR‟s statute doesn‟t interfere w/ U.S. F.R. The Court says that
it does have potential for disruption or embarrassment and makes them hesitate.
(a) These laws radiate attitudes of the “cold war” and that kind of state involvement (making
judgments about the gov‟t structure of another country) in F.A. and int‟l relations is NOT
sanctioned by Clark v. Allen. The statute as written makes unavoidable judicial criticism
of nations est. on a more authoritarian basis than our own.
(b) It seems inescapable that OR‟s law affects int‟l relations in a persistent and subtle way.
(c) Where those state laws conflict with a treaty, they must bow to the superior fed policy.
Yet even in the absence of a treaty, a State‟s policy may disturb F.R – the OR law does
illustrate the dangers which are involved if each State, speaking through its probate cts, is
permitted to est. its own foreign policy.
c) Harlan Dissent: OR‟s law is preempted by the 1923 treaty all together, but the Cts reasoning is
also wrong: [Dissent has the better argument here…]
(1) “Prior decisions have est. that in the absence of a conflicting fed policy or violation of the
express mandates of the Const, the States may legislate in areas of their traditional
competence even though their statutes may have an incidental effect on F.R.”
(2) States have traditionally been able to leg on matters of distribution of inheritance.
(a) A foreign gov‟t can hardly object to the denial of rights which it does not accord to the
citizens of other countries.
(b) The Court said that Clark v. Allen was const. b/c it didn‟t intrude on the fed domain on its
face; but neither does the OR law, and the Court here found it unconst. only as applied.
(c) The finding that the OR law will result in offense to foreign gov‟ts is based almost
entirely on speculation. Douglas does cite a few “unfortunate” remarks made by state
courts in applying these statutes, but he doesn‟t cite any instances in which such remarks
occasioned for diplomatic protest.
(d) The U.S. says in its amicus brief that the State reciprocity laws have had little effect on
the F.R. and policy of this country.
(3) Even in domestic cases, state judges have been known to make dicta critical of foreign
gov‟ts, so the mere possibility of offensive utterances can hardly be the test.
(4) That it requires state cts to inquire into the administration of foreign law by their gov‟ts
cannot be the flaw in the statute b/c that characteristic is shared by other legal rules:
(a) Uniform Foreign Money-Judgments Recognition Act – a foreign money judgment shall
not be recognized if it was rendered under a system which does not provide impartial
tribunals or procedures compatible w/ the requirements of due process of law.
(b) Field of choice of law – nonstatutory rule that the tort law of a foreign country will not be
applied if that country is shown to be uncivilized.
(c) These rules have the same “defect” and Harlan is sure the Ct wouldn‟t find them unconst.
d) What Test did the S.Ct. Come Up With for Dormant Preemption: It‟s not clear
(1) The OR statute has something more than an incidental affect in foreign countries, it has some
effect on foreign relations, and it is based on judgments and criticisms of foreign
(2) The test is either – focused on a state law‟s potential impact OR it‟s focused on the
motivation behind the statute OR it‟s focused on the judgment/criticism of a foreign gov‟t.
3. American Insurance Assoc. v. Garamendi (S.Ct. 2003): Cali enacted the Holocaust Victim
Insurance Relief Act (HVIRA) in 1999: Required any insurer doing business in Cali to disclose
information about all policies sold in Europe btwn 1920-45 by the co. itself or cos. related to it. The
U.S. entered agreements to resolve claims against Germany, one of which est. a foundation from
which compensation to all those who suffered during the Nationalist Socialist Era would come. The
Pres also promised Germany, Austria and France that he would persuade state and local gov‟ts to
respect the foundation as the exclusive means for resolving WWII claims against private cos.
a) Souter Opinion: The principle argument made for preemption is that HVIRA interferes w/
foreign policy of the Exec as expressed in its agreements w/ European nations.
(1) Beyond dispute: 1) an exercise of state power that touches on F.R. must yield to the National
Gov‟ts policy given the concerns for uniformity; 2) exec has the authority to decide what that
policy should be; 3) the Pres has the authority to enter into exec agreements w/ other
countries, requiring no ratification by the Senate.
(2) Valid exec agreements are fit to preempt state law, just as treaties are (w/ the caveat that the
power must be exercised in subordination to the applicable provisions of the Const., such as
individual rights stuff).
(3) But here both parties agree that the agreements don‟t include a preemption clause, and so
leave their claim of preemption on asserted interference w/ the foreign policy those
agreements embody. Souter thinks is applicable to consider the strength of the state interests,
since its an area of traditional competence and decide how serious a conflict must be shown
before declaring the state law preempted.
(a) Resolving Holocaust-era insurance claims is a matter well w/in the exec‟s responsibility
since claims remaining in the aftermath of hostilities may be sources of friction which
impede the resumption of friendly relations – there‟s a longstanding practice of the
national exec to settle them in order to discharge its responsibility to maintain peace w/
(b) Vindicating victims injured by acts of enemy corps. in wartime is thus w/in the traditional
subject matter of foreign policy – NOT a state interest.
(c) HVIRA‟s economic compulsion to make public disclosure of far more information than
the agreements employs a different, state system of economic pressure, and in doing so
undercuts the Pres’s diplomatic discretion and the choice he has made exercising it.
(d) Same as Crosby, only this case the state is in conflict w/ the Pres directly in his power to
make executive agreements, rather than in conflict w/ a fed statute of Congress which
gave discretion to the Pres.
(4) The State has a weak interest against the backdrop of traditional state leg. subject matter.
(a) The state says its interest is legitimate consumer protection in knowing that insurance
cos. have failed to pay prior claims.
(b) BUT since the Cali laws only require disclosure from cos. that issued policies in Europe
to European residents, and there are other Cali laws mandating license suspension for
failure to pay a claim to Holocaust survivors; it‟s suspicious whether the purpose of the
law is really to evaluate corp. reliability.
(c) Cali‟s state interest is the very same as the fed gov‟t – to vindicate Holocaust survivors or
relatives; but Cali‟s interest isn‟t greater than the U.S. to justify resolving the conflict w/
national policy in Cali‟s favor.
(5) The basic fact is that Cali seeks to use iron fists where the Pres has consistently chosen to use
kid gloves. Dissatisfaction w/ the course chosen by the Pres should be addressed to him or
perhaps Congress; but the Cali act stands in the way of the Pres‟s diplomatic objectives.
b) Ginsburg, Stevens, Scalia, Thomas Dissent: We haven‟t relied on Zschernig since it was
decided, and we shouldn‟t resurrect that decision here.
(1) The Cali law entails no state policy that is critical of foreign gov‟ts and doesn‟t involve
sitting in judgment on them – Zschernig doesn‟t apply.
(2) The exec agreements said the Pres would try to persuade state and local courts to dismiss
Holocaust-era claims; but they confirm that such statements have no legally binding effect.
It remains uncertain then if even litigation on insurance claims must be abated.
(3) It is abundantly clear then that the exec agreements leave disclosure laws like HVIRA
(4) The Court invalidates a state disclosure law on grounds of conflict w/ “foreign policy”
embodied in certain agreements, although those agreements do not refer to state disclosure
laws specifically, or even to information disclosure generally.
(5) Further the Court fills the agreements‟ silences by pointing to statements made by members
of the Exec Branch – but we‟ve never premised F.A. preemption on statements of cabinet
members – no authoritative text accords such officials the power to invalidate state law
simply by conveying the exec‟s views on matters of fed policy.
c) Waters: The maj was confusing on purpose b/c they didn‟t want to come out and say they were
relying on the Dormant Foreign Affairs Preemption b/c Zschernig was based on such shaky
ground. This is why the dissent pointed out that the Court shouldn‟t rely on Zschernig.
a) Areas which the Court has hinted are dormant F.A. preempted: Extradition; Immigration;
Foreign Commerce Clause (if a State unduly burdens interstate or foreign commerce)
VI. Treaties and Other Int’l Agreements: Art. VI provides that “all treaties shall be the supreme law of the
land; and the Judges of every State shall be bound thereby, anything in the Const. or Laws of any State to
the Contrary notwithstanding. The S.Ct. has recognized a distinction btwn “self-executing” and “non-self-
A. Treaty Implementation into Domestic Law:
1. Monism: A monist country (civil law countries are mostly monist) think that Int‟l and Domestic are
all one big thing. The planes intersect and overlap. The Treaty itself is the bridge. So, if you ratify
a treaty then it automatically has affect in the domestic legal system. Private civilians can
immediately bring a suit to court. And the treaty trumps domestic laws on the books beforehand.
2. Dualism: Completely separate planes. Int‟l law, signed and ratified, is not the bridge to domestic
law on its own. It gives us obligations in Int‟l law, but that doesn‟t matter inside the country. In a
dualist country you need implementing legislation (that‟s the bridge). Tend to be legal systems that
came from the British Commonwealth.
3. Hybrid: U.S. We take a little of both:
a) Text of Supremacy Clause: says we should be a monist country – all treaties are on the same par
b) 1829 – Foster v. Nealson: S.C. held some treaties aren‟t enforceable in U.S. courts and require
enforcing legislation. This is how we got self-executing and non-self-executing.
2. How to know if the treaty is self-executing:
a) Language of the Treaty: If there are strong verbs; mandatory language; present tense; or words
that say a country is to refrain from doing something – most likely self-executing.
b) Subject Matter
c) Specific Obligations / Rule of Decision in the Treaty – most likely self-executing
d) Purposes and Objectives – Intent of the Parties (This is an overarching theme)
(1) Do we care about all the parties to the treaty, or just what the U.S. party intended? Domestic
implementation is a matter for each country to decide for itself.
(2) The other side of that is that treaties are reciprocal agreements and we need to know what is
binding on everyone.
e) If the treaty deals with a subject that is in the sole realm of Congress then they have to
implement legislation to effectuate it.
f) Bilateral treaties are more likely to be self-executing than multilateral treaties.
g) Most of the time Congress and the Pres don‟t say if they want it self-executing or not.
2. Asakura v. City of Seattle (S.Ct. 1924): Seattle ordinance required pawnbrokers to obtain licenses,
but prohibited such licenses to noncitizens. Asakura was a citizen of Japan and sued on the ground
that the law violated a treaty made btwn Japan and the U.S. that granted national treatment to
Japanese citizens who engaged in trade in the U.S.
a) Butler Opinion: While the treaty-making power does not extend to what the Const. forbids, it
does extend to all proper subjects of negotiation btwn our gov‟t and other nations. The treaty is
binding in the State of Washington and the rule of equality cannot be rendered nugatory.
(1) Pawn-broking is within the phrase “to carry on trade” which is defined broadly. Therefore
the intention of the parties of the treaty is clear and the ordinance violates the treaty
b) The language of the treaty spells out pretty specifically that it‟s giving rights to individual
Japanese citizens (uses the term “shall”). Treaties addressing the rights of foreign citizens in the
U.S. are much more likely to be self-executing. There is a “rule of decision” in the treaty and
that makes it self-executing. The treaty sets out specific obligations. The more specific the
obligations are laid out, the more likely it‟s self-executing.
3. U.S. v. Postal (5th Cir. 1979):Δs were sailing near the FL Keys in a vessel registered in the Caymans
(British terr.) but displayed no flag. Coast Guard boarded them once to inquire about its origin at
10.5 miles from the coast, then later re-boarded when it was 16.3 miles from the coast and on that
2nd boarding found a large quantity of marijuana. Δs claim the Caymans only have jx over them
under the Convention of the High Seas.
a) Circuit Judge Tjoflat: Treaties affect the municipal law of the U.S. only when those treaties are
given effect by congressional leg or are self-executing. Question: whether the Convention of the
High Seas is self-execution. Holding: It‟s not.
(1) A treaty may expressly provide for leg execution, like “every State shall take the necessary
legislative measures to…”; Treaties can‟t affect certain subject matters w/o implementing
legislation, like if it involves a gov‟t action that under the Const can only be done by
Congress, ex: criminal sanctions.
(2) Other than those two situations it‟s all a matter of interpretation: Look to:
(a) History of the treaty
(b) The negotiations
(c) Practical construction adopted by the parties
(d) The existence of appropriate domestic procedures and institutions for implementation
(e) The availability and feasibility of alt enforcement methods
(f) Immediate and longterm consequences of self- or non-self-execution
(3) This treaty: On its face seems to be self-executing b/c it purports to preclude the exercise of
jx by foreign state, but the context of Art. 6 compels the conclusion that it is not self-
(a) B/c it‟s a multilateral treaty w/ countries that don‟t recognize treaties as self-executing,
the parties couldn‟t have meant for the treaty to be self-executing absent a manifestation
of that intention.
(b) Also, consistent U.S. attitudes that they do have jx w/in 12 miles of the coast would be
eviscerated if the Treaty were self-executing, an outcome the U.S. couldn‟t have intended
by ratifying the treaty w/o expressing that intent.
C. Last-in-Time Rule: The Const. provides that both treaties and fed statutes are part of the supreme law of
the land and thus preempt inconsistent State law; it says nothing of what to do about inconsistencies
btwn fed law and treaties. What‟s a court to do?
1. Whitney v. Robertson (S.Ct. 1888): Πs are merchants doing business in NY and they import a large
quantity of molasses from San Domingo. The same stuff from Hawaii is admitted free of duty under
the treaty w/ the king of those islands, and the act of Congress that brought it into effect. The Πs
claim that by the treaty w/ San Domingo the goods should also be free of duty.
a) The “most favored nation” provision in the treaty w/ the Dominican Republic precluded
discrimination, but did not require the U.S. to extend special concessions given to other countries
for valuable consideration.
(1) But even easier to address is that the act of Congress, which the duties were collected, was
authorized after the treaty. Therefore if there is any conflict btwn the treaty and the
requirements of law, the latter must control.
b) When a treaty can only be enforced pursuant to leg to carry them into effect, such leg is as much
subject to modification and repeal by Congress as any other subject.
c) Self-executing treaties, which have the force of leg enactment itself, can still be modified or
superseded all together by Congress.
d) When treaties and leg relate to the same subject, the cts will always endeavor to construe them to
give effect to both, if that can be done w/o violating the language of either; but if they‟re
inconsistent, the one last in date will control the other.
(1) If this offends the High Contracting Parties, the recourse is with the Pres, the cts can afford
2. Cook v. U.S. (S.Ct. 1933): Congress enacted a statute in 1922 that prohibited liquor to be brought
into the U.S. by ship; in 1924 the U.S. and British signed a treaty that gave the U.S. jx over British
ships only if they could reach the U.S. w/in an hour; then in 1930 Congress reenacted the 1922
statute about liquor. British slow ship had liquor on board and was fined.
a) The treaty, being later in date than that Act of 1922, superseded the authority of the Coast Guard
to board, search and seize beyond our terr. waters, for the treaty was self-executing. After the
treaty took effect, the Treasury Dept issued amended instructions that “the provisions of those
treaties shall be complied with”
b) The treaty was not abrogated by the re-enacting of the act in 1930 in the identical terms of the
1922 act. A treaty will not be deemed to have been abrogated or modified by later statutes
unless such purpose on the part of Congress has been clearly expressed. Any doubt as to the
construction of the section should be deemed resolved by the consistent dept practice existing b4
c) The 1930 act continued to apply boarding and seizure as it had before to countries w/ which we
had no relevant treaties, and it continued to apply to Britain as it did b4 w/ application of the
3. Breard v. Greene (S.Ct. 1998): Breard to be executed in Virginia. Charged w/ attempted rape and
capital murder, and confessed. He filed habeas petition saying conviction and sentence violated VC
on Consular Relations; specifically that when he was arrested, nobody told him that as a foreign
national, he had the right to contact Paraguayan consulate. If Breard had a claim, he procedurally
defaulted under VCCR by failing to raise claim in state courts. Breard claims that no procedural
default should apply and that he should be heard in federal court because the VCCR is supreme law
of the land and so trumps the procedural default doctrine. Court disagrees.
a) Absent clear and express statement to the contrary, procedural rules of the forum state govern the
implementation of the treaty in that state. This is embodied in VC. In U.S., assertions of error in
criminal proceedings must first be raised in state court in order to form basis for relief in habeas,
and claims not so raised are considered defaulted. By not asserting his VC claim in state court,
he failed to exercise his rights under VC in conformity w/ U.S. law and Virginia state law.
b) Also, even though treaties are supreme law of land, so is the Constitution itself, which has
procedural default rules.
D. Relationship Between Treaty Power and Amer. Federalism: Can treaties create domestic law that goes
beyond the scope of Congress‟s power? Can Congress, under the Necessary and Proper Clause, enact
leg to implement treaties if that leg would otherwise fall outside the scope of Congress‟s power? Is a
treaty subject to any 10th Amend limitation? Can treaties commandeer state legs or execs?
1. Missouri v. Holland (S.Ct. 1920): Missouri sought to prevent a U.S. game warden from enforcing
the Migratory Bird Treaty. And the regs made by the Secretary of Ag. in pursuance of the same.
a) It is not enough to refer to the 10th Amend., reserving powers not delegated to the U.S., b/c by
Art. II, § 2 the power to make treaties is delegated expressly, and Art VI treaties made under the
authority of the U.S. are declared to be the supreme law of the land. If the treaty is valid, then
the leg enacting that treaty domestically are valid.
b) Treaties cannot infringe the Const – one such limit is that what an act of Congress couldn‟t do
unaided, in derogation of the powers reserved to the states, a treaty cannot do.
(1) An earlier act by Congress to regulate the killing of migratory birds was held bad, under the
argument that the birds belonged to the State in their sovereign capacity for the benefit of
(2) But the court says that regardless of whether the two cases that held those statutes void were
correct or not, they cannot be accepted as a test of the treaty power.
(3) *Acts of Congress are the supreme law of the land when made in pursuance of the Const.
(under what Congress has the power to do); Treaties are declared to be supreme law of the
land when made under the authority of the U.S. (what the Pres and the Senate can do).
c) The only question is whether the treaty is forbidden by some invisible radiation from the general
terms of the 10th Amend; we must consider what this country has become in deciding what that
Amend has reserved.
(1) Wild birds are not in the possession of anyone; and possession is the beginning of ownership.
The subject matter is only transitorily w/in the State and but for the treaty and the statute
there soon might be no birds for any power to deal with.
d) Waters: What this Case Stands For: The proposition that treaty makers can basically legislate
beyond the powers they have under the Const. Federal statutes implementing a treaty can also
go beyond the scope of Congress‟s Const. power as long as the statute is rationally related to the
treaty *b/c it falls under the Necessary and Proper clause.
E. Conditional Consent: Treaty-makers sometimes condition their consent to a treaty by attaching RUDs.
1. ICCPR: (On handout from PIL class…)
2. U.S. RUDs and the ICCPR: Congressional Rec.
a) The Senate‟s advice and consent recarding the ICCPR is subject to the following reservations:
(1) That Art. 20 does not authorize or require legislation that would restrict the right of free
speech and association protected by the Const of the U.S.
(2) That the U.S. reserves the right to impose capital punishment on any person (other than a
pregnant woman) duly convicted under existing or future laws permitting capital punishment,
including punishment for crimes committed by people under 18.
(3) That the U.S. considers itself bound by Art. 7 to the extent its is defined by our own
understanding of “cruel, inhuman or degrading treatment or punishment” under the 5th, 8th
and/or 14th Amends
b) The Senate‟s advice and consent is subject to the following undestandings:
(1) The U.S. understands distinctions based on race, color, sex…. To be permitted when such
distinctions are, at minimum, rationally related to a legitimate gov‟t objective.
(2) The Covenant shall be implemented to the fed gov‟t to the extent that it exercises leg and
judicial jx over the matters covered and otherwise by the state and local gov‟ts to the extent
they exercise jx over such matters.
c) The Senate‟s advice and consent are subject to the following declarations:
(1) The U.S. declares the provisions of Arts 1-27 are NOT self-executing
d) The Senate‟s advice and consent is subject to the following proviso, which shall not be included
in the version of the instrument of ratification to be deposited by the Pres:
(1) Nothing in this Covenant requires or authorizes legislation, or other action, by the U.S. that is
prohibited by the Const as interpreted by the U.S.
3. Henkin, U.S. Ratification of H.R. Conventions: The Ghost of Senator Bricker: The U.S. RUDs are
seen as seeking the benefits of a seat on the H.R. Committee, without assuming any obligations or
burdens. The U.S. attitude is seen as offensive: the conventions are only for other states, not for the
a) The “federalism” RUDs serve no legal purpose b/c everything is within the jx of the feds if only
by making the treaty, and are therefore seen as another example of U.S. resistance and not
treating H.R. as a national interest and int‟l concern.
b) The “non-self-executing” RUD has been explained as assuring that changes to U.S. will only be
by “democratic processes” and that impugns the democratic character of every treaty made.
c) Art. VI of the Const. provides expressly for lawmaking by treaty, and thus intended by the
founders to become law ipso facto and an alternative to legislation by Congress. Nothing
suggests that the Framers intended some treaties to NOT be made law of the land.
d) Once the civil rights campaign became entirely domestic and the fed. gov‟t legislated w/ respect
to rights that had previously been thought the realm of the states, the Bricker campaign became
ancient history b/c if the feds can legislate on it, why not sign a treaty on it.
e) The package of RUDs the U.S. has become accustomed to has effectively done what Senator
Bricker hoped to do and more. And this sets an example for other states not to take their H.R.
VII. Reliance on Foreign and Int’l Materials in Const. Interpretation:
A. Roper v. Simmons (S.Ct. 2005): Kennedy used int‟l practice and law to “provide a respected and
significant confirmation for [the Court‟s] conclusion “that juvenile executions violate 8th Amend.
because they are cruel and unusual punishment under the “evolving standards of decency that mark the
progress of a maturing society.”
1. Kennedy Opinion:
a) There is national US consensus against it, and that is confirmed by int'l opinion.
b) U.S. was one of only two countries that failed to ratify the U.N. Convention on the Rights of the
Child, which prohibits juvenile execution, and was one of only seven countries that have
executed juveniles since 1990:
c) "It is proper that we acknowledge the overwhelming weight of int'l opinion against the death
penalty … the opinion of the world community, while not controlling our outcome, does provide
respected and significant confirmation for our own conclusions…. It does not lessen our fidelity
to the Constitution or our pride in its origins to acknowledge that the express affirmation of
certain fundamental rights by other nations and peoples simply underscores the centrality of
those same rights within our own heritage of freedom."
d) He opens up court to unnecessary criticism by relying on ICCPR and Convention of Rights of
Child. He could have just cited international practice. Also, it is a murky standard so it might get
messy, and people think that U.S. courts should have no business w/ int'l law.
e) Advantage to his approach: enables him to send signal to domestic audience that he's sensitive to
legitimacy issues that surround issues of int'l law in U.S. courts, but sends signal to rest of world
that U.S. is going to be part of int'l law.
2. O‟Connor Dissent: Disagrees that there is a national consensus, so int‟l law has no confirmatory role
here. She does agree, however, that international law should have some role, but doesn‟t define what
role that should be. "But this Nation's evolving understanding of human dignity certainly is neither
wholly isolated from, nor inherently at odds w/, the values prevailing in other countries."
3. Scalia Dissent: There is no national consensus, and regardless int'l law should have NO role in
interpreting domestic law. “I do not believe that approval by „other nations and peoples‟ should
buttress our commitment to American principles any more than disapproval by „other nations and
peoples‟ should weaken that commitment.”
4. Waters: The sources Kennedy picked are problematic: Rights of the Child (we didn‟t ratify), African
Charter (we can’t ratify), UK treaties, ICCPR (but leaves out our reservations), etc. Kennedy is
really bootstrapping to get an argument for national consensus (he didn‟t have enough support for a
national consensus, so he‟s topping it up w/ int‟l opinion). Says that he‟s only using int‟l opinions
for “confirmatory role,” but he‟s really using it to create a consensus where there isn‟t one.
a) Bottom Line: revealed a widening gap on the court on how to deal with the fact that so many
courts around the world are using int‟l opinion and practice and we‟re in the dark ages compared
to other courts around the world that are more active. Judicial activism.
(1) Scalia speaks for 3 members of the court in saying that we just shouldn‟t be participating in
this type of dialogue.
(2) 6 members said we should be participating in this rich dialogue, but the sources should play a
(3) Now the new additions: Roberts and Alito‟s position is: that they‟re not big fans. Made it
clear they weren‟t going to become turn-coat Justice Kennedy‟s.
b) Waters doesn‟t think the Congress is the best judge of what the national consensus is on an issue.
In an ideal world it is, but the Congress‟ complete failure to act on illegal immigration doesn‟t
represent the consensus is. Things just get hung up in Congress. A better judge might be to see
what every single State legislature has done
B. Sanchez-Llamas v. Oregon (S.Ct. 2006): Art. 36 of the VCCR. Right to see your consulate…, also to
be exercised in conformity w/ the laws and regulations of the receiving state, subject to the proviso that
said laws and reg. must give full effect to the purposes of the Convention. The U.S. ratified this and the
Optional Protocol that said disputes arising under the treaty could be heard in the ICJ.
1. In Breard (Paraguay), the ICJ said the U.S. was to take all measures at its disposal to ensure that
Paraguayan citizen was not executed pending the ICJ‟s final decision. The U.S. S.Ct. declined to
halt the execution saying it only had to give the ICJ respectful consideration and normally the
procedural rules of the forum state govern the implementation of the treaty in that state – The
procedural default rule in this case.
2. In LaGrand (Germany), the ICJ concluded that the VCCR confers not only state-to-state rights, but
also individual rights, and the State‟s procedural default rules prevent the “full effect” of the
Convention from being given.
3. In Avena (Mexico), the ICJ concluded the proper remedy for the violations was for the U.S. to
“permit review and reconsideration of the nationals” by the U.S. courts to see if the violation cause
actual prejudice in the trials. The ICJ said that procedural default rules shouldn‟t be applied to bar
this review where the violation of Art. 36 contributed to the procedural default b/c it prevents full
effect from being given to the rights.
a) The Exec branch took the position that the ICJ erred in its const. of the VCCR. The S.Ct. then
decided not to review a case involving one of the named Mexican nationals covered by Avena.
The Exec branch filed a brief stating that the Convention did not confer any private, judicially
enforceable rights, that Art. 36 did not preclude application of procedural default rules, and that
Avena decision was not directly enforceable in U.S. courts. HOWEVER, the brief also said that
Pres. Bush had written a memo stating that the U.S. would discharge its obligations under Avena
by having state courts provide review and reconsideration for those 51 nationals in accordance
w/ the principle of comity and for those specific cases, the memo would override state procedural
b) The Secretary of State sent a letter to the S-G of the U.N. stating that the U.S. was withdrawing
from the Optional Protocol of the VCCR.
4. Sanchez-Llamas is a consolidated case from two cases in Oregon and Virginia. In Oregon, Sanchez-
Llamas was not one of the 51 named Mexican nationals, he moved to have statements suppressed
that he said after his arrest on the grounds that authorities didn‟t tell him about his Art. 36 rights. In
Virginia, Bustillo – Honduran national, filed for a writ of habeas corpus arguing for the 1st time that
his Art. 36 right was violated.
5. Chief Justice Roberts OPINION: 3 questions: 1) whether Art. 36 grants rights that can be invoked by
individuals in a judicial proceeding; 2) whether suppression of evidence is the proper remedy for a
violation of Art. 36; and 3) whether an Art. 36 claim can be deemed forfeited under state procedural
rules. The Court concludes that the Petitioners are NOT entitled to relief and therefore the answer to
question 1 is unnecessary to answer, therefore, the Court assumes, w/o deciding, that Art. 36 does
grant individual rights.
a) S-L argues that the trial court is required to suppress his statements b/c police never told him of
his Art. 36 rights, but does NOT argue that VCCR itself mandates this.
(1) The Convention does not prescribe specific remedies, but leaves the implementation of Art.
36 to domestic law.
(2) The exclusionary rule is an American legal creation. 40 yrs after the drafting of the
Convention, the exclusionary rule is still universally rejected by other states. Therefore it is
implausible to think the signatories to the VCCR thought it to require suppression. (Roberts
uses int‟l law to support his point here….)
(3) Therefore S-L argues only that suppression is required b/c it is the appropriate remedy under
U.S. law, and urges the S.Ct. to require suppression as a matter of their authority to develop
remedies for the enforcement of fed law in state cts.
(4) The State of Oregon and the U.S. amicus curiae briefs say the S.Ct. lacks such authority over
state cts., and rather that the S.Ct. can only use such authority over fed cts and not state cts.
The S.Ct. cites Dickerson v. U.S.: “It is beyond dispute that we do not hold a supervisory
power over the cts of the several States.”
(a) The S.Ct.‟s authority to create a judicial remedy in state ct. must lie in the treaty itself.
Under the Const., the Pres. has the power w/ the Senate, to make treaties and the S.Ct.
would be in effect supplementing those terms in the treaty by enlarging the obligations of
the U.S. beyond what they contemplated when they signed and ratified the treaty.
(b) A self-executing treaty binds the States pursuant to the Supremacy Clause and where a
treaty provides for a particular judicial remedy there is NO issue of intruding on the
const. prerogatives of the States, BUT where the treaty doesn‟t provide a particular
remedy it is not for the fed cts. to impose one on the State through lawmaking of their
(5) S-L argues that the language of the Convention implicitly requires a judicial remedy b/c it
states that the laws governing the exercise of Art. 36 give full effect to the purpose of the
rights. Although “full effect” may not automatically require an exclusionary rule, it does
require an appropriate judicial remedy of some kind.
(a) There is reason to doubt this interp. Other parties to the Convention have not interp. Art.
36 to require judicial remedy for criminal prosecutions.
(b) Art. 36 shall be exercised in conformity w/ the laws of the receiving state – the
exclusionary rule is not a remedy we apply lightly. It has been done primarily to deter
const. violations. Ex: Violations of the 4th Amend, confessions against compelled self-
incrimination or due process. And the few times the Court has suppressed evidence for
statutory violations don‟t help b/c they arose directly from violations that implicated
important 4th & 5th amend. interests.
(c) The violation of VCCR is “at best remotely connected to the gathering of evidence.” Art.
36 has nothing to do with searches or interrogations and it does not guarantee Δs any
assistance at all, only the right to have their consulates notified – not to have their
consulate intervene or to have police cease their investigation pending any such notice or
(d) Roberts says that violation of Art. 36 is unlikely to produce unreliable confessions and
it‟s unlikely that police win any practical advantage. (QUE?)
(e) Roberts says that Art. 36 adds little to a Δs “legal options” b/c they‟re still entitled to an
attorney and protection against self-incrimination, and a Δ can raise Art.36 claims at trial
and diplomatic avenues are also open. Therefore “suppression” is not the only/nec.
means of vindicating an VCCR violation.
b) Procedural Default Rule: In federal habeas cases, a Δ who fails to raise a claim on direct appeal
is barred from raising the claim on collateral review. There is an exception if a Δ can
demonstrate both “cause” for not raising the claim at trial, and “prejudice” from not having done
(1) The State of VA considered these in Bustillo‟s case and barred his claim – such rules
constitute an adequate and independent state-law ground preventing the S.Ct. from reviewing
the federal claim. Bustillo contends that state procedural default rules cannot apply to Art.
36 claims b/c they must be given “full effect” and VA default rules prevent any effect from
being given to those rights.
(2) VA and the U.S. respond that Breard is controlling: Breard argued that VCCR is “supreme
law of the land” and trumps the state default rules. Wrong for 2 reasons: 1) absent a clear
and express statement to the contrary, procedural rules of the forum state govern the
implementation of the treaty in that state; and 2) while treaties constitute the supreme law of
the land, this is no less true of provisions of the Const. itself, to which procedural default
(a) Bustillo says Breard doesn‟t apply here: 1) the default rule was “unnecessary” to the
outcome b/c he would lose on other grounds anyway; 2) the subsequent rulings of the ICJ
in LaGrand and Avena warrant revisiting the default rule holding in Breard.
(b) The Court thinks not b/c 1) just b/c Breard would lose on other grounds, doesn‟t make the
default rule any less necessary and 2) the ICJ still only gets respectful consideration and
we don‟t want to reconsider Breard.
(c) The Judicial power extends to treaties under Art. III § 2, and it was under the
understanding that the S.Ct. has the power to est. the meaning of the laws of the U.S. that
the Senate and Pres. signed the treaty that refers disputes to the ICJ.
(3) Roberts mis-cites the ICJ statute: “decisions have no binding force except btwn the parties
and in respect of that particular case” (to mean that they aren’t binding on U.S. courts)
and aren‟t binding even as to the ICJ itself.
(a) Admits that each member of the U.N. has agreed to comply with decisions of the ICJ and
that any noncompliance can be referred to the Security Council, who can contemplate
int’l remedies. (meaning the remedy isn‟t in the domestic courts)
(4) The meaning given to treaties by the depts. of gov‟t that negotiated them is given great
weight – The U.S. has agreed to discharge its int‟l obligations in having state cts. give effect
to the decision in Avena, but it has NOT taken the view that the ICJ‟s interpretation of Art.
36 is binding on our courts. (Basically, the courts should give the requested relief to those 51
individuals, but we reject that interpretation for any and all subsequent Δs.)
(5) Shortly after Avena, the U.S. pulled out of the Optional Protocol, therefore our courts don‟t
have to give decisive weight to the interp. of a tribunal whose jx is no longer recognized in
this area by the U.S.
(6) Even w/ respectful consideration, the ICJ‟s interp. of Art. 36 being above default rules cannot
overcome the plain import of Art. 36 – in the U.S. even the Const. doesn‟t rise above default
rules. The ICJ‟s interp. is inconsistent w/ the basic framework of an adversary system
where the system relies on parties raising issues and presenting them in court at the
6. Breyer, Stevens, Souter & Ginsberg DISSENT:
a) Whether a criminal Δ may raise a claim on Art. 36:
(1) The VCCR is self-executing. The petitioners must be right that the Convention provides law
that courts could apply in their proceedings. The language of Art. 36 speaks directly of
“rights” of individual foreign nationals. Thus Art. 36 is starkly different from the rest of the
Convention that speaks in terms of rights of nations or consular officials. So, yes to ? 1.
b) The ICJ‟s interpretation: the int‟l tribunal the U.S. agreed would resolve disputes about the
interpretation of the Convention has ruled twice that an arrested foreign national may raise a
violation of Art. 36 in an American judicial proceeding. “Respectful consideration” counsels in
favor of an interpretation that is consistent with the ICJ‟s reading of the Convention here.
(1) The gov‟t claims that there is a long-standing presumption that treaties do not create
judicially enforceable individual rights. This presumption does NOT exist.
(2) The gov‟t also claims the Exec. Branch‟s interp. is entitled great weight. The dissent agrees,
but it‟s not conclusive. Where language, the nature of the right, and the ICJ‟s interp. taken
separately or together point so strongly to an intent to confer enforceable individual rights,
they cannot find the Exec‟s contrary view sufficient reason to adopt the Exec‟s interpretation.
c) Breyer: Art. 36 can sometimes override state proc. default rules and can sometimes require
suppression of evidence; and suggested that these two cases should be remanded to states to
apply their default rules with the understanding that the Fed. Const. requires the application of
those laws be consistent with the VCCR‟s demand for an effective remedy for an Art. 36
(1) “Respectful consideration” reflects the understanding that uniformity is an important goal of
treaty interpretation, and the ICJ‟s position as an int‟l court specifically charged with the duty
to interpret numerous int‟l treaties provides a natural point of reference for national cts.
seeking that uniformity.
(2) The ICJ also has expertise in matters of treaty interpretation, a branch of int‟l law
(3) ** “Today’s decision interprets an int’l treaty in a manner that conflicts not only with
the treaty’s language and history, but also with the ICJ’s interpretation of the same
treaty provision. Therefore the Court’s decision is unprecedented.” **
7. Waters – Roberts didn‟t say that the ICJ decision was irrelevant or that we don‟t think treaties are an
important part of the supreme law of the land, but the ICJ interpretation here conflicts with our
Const. and other laws & precedent for our adversarial system and we can‟t apply their interpretation
of how to implement Art. 36 consistently with our laws. The Const. is supreme to treaties.
a) The U.S. tried to claim that the Treaty was for state-to-state claims and NOT for individuals.
Also there‟s a debate that even though it‟s a self-executing treaty, there has to be some indication
in the treaty that its remedies are in the courts. These people are trying to add another step that
after the treaty was executed domestically, the next step is that the treaty has to say that the
judiciary is the remedy.
C. Ex Parte Medellin (Tex. Ct. Crim. App. 2006): Medellin is one of the 51 Mexican nations covered by
the ICJ decision in Avena. Medellin sought a new hearing in TX state courts.
1. Medellin claims that the ICJ decision in Avena is binding federal law that preempts § 5 of the TX
Code of Criminal Procedure. TX and the U.S. as amicus curiae disagree.
a) TX says it‟s bound by the S.Ct.‟s determination in S-L that ICJ decisions are not binding on U.S.
b) Art. III problem: Can the pres. and senate delegate away from the S.Ct. the power to interpret a
treaty to the ICJ?
(1) If they can‟t, then the S.Ct. can decide for the 51 nationals and everyone else.
(2) The Political Branches can‟t delegate power to the ICJ to interpret treaties FOR DOMESTIC
legal questions. They can sign treaties that give the ICJ power over int‟l issues, political
2. On the effect of the Pres.‟s memo, Medellin and the U.S. as amicus curiae contend that the Pres.‟s
memo requires the TX court to review and reconsider his conviction. The State challenges the effect
of the memo‟s substantive language.
a) Medellin and the U.S. presume that the memo is an executive order, but the State argues that the
memo doesn‟t have any mandatory language. The court assumes, w/o deciding, that the memo is
an executive order, but finds that Medellin has not shown that the Pres.‟s memo entitles him to
review and reconsideration.
b) The court says it must decide whether the Pres. has exceeded his power by directing the States to
give effect to the Avena decision under principles of comity. They cite Jackson‟s opinion in
Youngstown to claim that the Pres has exceeded his const. authority by intruding into the
independent powers of the judiciary. The Pres. cannot dictate to the judiciary what law to apply
or how to interpret the applicable law.
c) The Pres. and Medellin argue that the Pres.‟s power is at its maximum – inherent foreign affairs
power to enter into exec. agreements to settle claims w/ foreign nationals.
(1) This claim is misplaced b/c the Pres. hasn‟t entered into any agreements with Mexico, there
has been no settlement, this is just a unilateral act executed in an effort to achieve a
settlement with Mexico.
(2) The Pres.‟s foreign affairs power to enter an exec. agreement to settle a dispute has been
acquiesced by Congress over history, but not the Pres.‟s authority to settle a dispute w/
another nation by executive order (without the involvement of dialogue w/ that country).
The Court claims this is a big difference and that its unprecedented action puts it in the “zone
of twilight” or where “congressional indifference or quiescence” enabled or invited the
conduct of the Pres. = incompatible w/ the implied will of Congress and therefore at its
d) The U.S. submits that requiring a formal bilateral agreement would:
(1) Hamstring the Pres in settling int‟l controversies and weaken the nation‟s ability to fulfill its
(2) Fail to recognize the practical reality that there are occasions when a foreign gov‟t may
acquiesce in a resolution it is unwilling to formally approve.
(3) Fail to recognize that obtaining a formal agreement can be a time consuming process that is
ill-suited for occasions where swift action is required.
(4) Have the perverse effect of assigning to a foreign gov‟t veto power over the Pres.‟s exercise
of his foreign affairs power.
e) The court says the Pres. still has his ability to enter into bilateral agreements, and has just failed
in settling this controversy with Mexico. The need for “swift action” does not override what the
Const. requires – an int‟l compact or agreement. The mere possibility of later acquiescence by a
foreign gov‟t is speculation and not a settlement.
f) The court says that it expresses no opinion about whether an executive agreement btwn the U.S.
and Mexico would preempt state law.
3. Medellin also relies on the Pres.‟s duty to faithfully execute the laws as provided in Art. II, § 3, and
treaties are the supreme law of the land to be enforced.
a) The court says that the Pres. had done nothing more than confirm that the U.S. will do what it
has already promised to do – abide by the interpretation of the ICJ concerning the VCCR.
b) The S.Ct.‟s decision about the domestic effect of the ICJ decision is that they are entitled to
“respectful consideration” and forecloses any argument that the Pres. is acting w/in his authority
to faithfully execute the laws of the U.S.
c) By directing state courts to give effect to Avena, the pres. has acted as a lawmaker.
4. Waters – TX missed this distinction that the S.Ct. was talking about treaty interpretation, not about
recognition and enforcement of judgments. The S.Ct. didn‟t say we wouldn‟t enforce the judgment
for these 51 guys. We don‟t know what the S.Ct. will say on appeal.
c) Int‟l agreements CAN preempt State law (Garamendi).
d) Water‟s doesn‟t think it‟s clearly against the implied will of Congress, b/c it‟s at least w/ the
consent of the Senate. It‟s not clearly a Zone 3 case, rather it sounds more like a Zone 1 case.
The issue is not that Congress doesn‟t like it, it‟s that the State doesn‟t like it, but that has
NOTHING to do with Youngstown.
e) Thinks the TX court is going down & the S.Ct. is going to uphold the ICJ ruling somehow.
D. Litigants can‟t get more treaties into courts b/c many are not self-executing. A justice in Canada said
“these litigants are trying to get in the judicial backdoor what they couldn‟t get in the congressional front