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					I.    Private Party vs. Government
      a. Inherent foreign affairs power:
               i. Three theories of inherent power
      b. Bars against suit
               i. Standing
                      1. Legislator Standing
              ii. Ripeness
             iii. Mootness
             iv. Political Question
              v. Deference to Executive Interpretation
      c. Sources of Governmental power:
               i. Congress:
                      1. Foreign Commerce
                      2. Define and Punish
                      3. Inherent powers and Admiralty
                      4. Private Intercourse with Foreign Nations
                      5. Appropriations
                      6. Raise and Support Armies
                      7. Declare War
                              a. Define Laws of war (dimmer theory)
              ii. Presidential:
                      1. Youngstown
                      2. Commander in Chief
                      3. Control of Information
                      4. Defensive War
                      5. Multilateral Restoration of Peace
                      6. Executive Agreements
             iii. Joint:
                      1. Where Congress authorizes a general Presidential power,
                          and the action the President takes is a necessary/expected
                          incident to that power, it‟s cool. Dames & Moore
      d. Actions in Response to Sept 11
      e. Treaties:
               i. Self-Execution
              ii. Last in Time
             iii. Delegation and Appointments concerns
II.   States vs. the government
      a. Preemption:
               i. Conflict
              ii. Field
             iii. Obstacle
      b. Preemption by Treaty
      c. Foreign Affairs Preemption
      d. Dormant Foreign Commerce Clause Preemption
      e. Executive Agreement Preemption
      f. Expanded Treaty Power
   III.   Branches of government vs. each other
          a. General theory:
                  i. Pro-Executive:
                         1. Hamilton
                         2. Unity, secrecy, dispatch and information
                         3. Ordinary 18th century meaning
                         4. Legislative Veto
                         5. Executive Power is not “herein granted”
                         6. Power over the battlefield. Commander in Chief
                         7. Treaty Interpretation and Termination
                         8. Executive Agreements
                 ii. Pro-Congressional:
                         1. Youngstown
                         2. Define laws of war
                         3. Posse Comitatus Act
                         4. War Powers Resolution
                         5. Power over private rights and appointments
                                 a. Milligan
          b. Specific powers:
                  i. Private Rights:
                         1. Habeas
   IV.    Historical question
          a. The Framing
                  i. Articles of Confederation
                 ii. The Constitution‟s Improvements over the Articles


Constitutional Foundations

   I.     The Framing and Foreign Affairs
          a. The Revolution:
                  i. Born of FR – War/France‟s assistance.
                 ii. Declaration makes it appear that there are 13 states.
          b. Articles of Confederation:
                  i. Unclear what legal status it conferred on the national “collegial
                     body.”
                 ii. Problems:
                         1. Articles appeared to be joined by an act of the state
                            legislatures – which means the legislatures could repeal it -
                            not ratification of a treaty.
                                a. However, use of “confederacy” makes it sound like
                                    a treaty.
                         2. State courts interpreted national matters; led to collective
                            action problem.
                         3. Didn‟t provide for a national army or navy.
              4. No national taxation, no import duties; land tax collected
                  by the states.
              5. Weak union could have led to the states being played off
                  against each other by European powers/warring with each
                  other.
     iii. Answer:
              1. Federalist 10: Large republics are best.
              2. Shay‟s rebellion provided impetus.
c. The Constitution:
       i. Improvements over the Articles:
              1. Government, not mere treaty.
              2. Independent judiciary to adjudicate federal law.
              3. Independent executive (structurally and politically).
      ii. Particular passages:
              1. Art. I, Sect. 8:
                      a. Duties and imposts
                      b. Borrow money
                      c. Define and punish piracies/offenses against law of
                          nations
                      d. Declaration of War
                      e. Letters of Marque and reprisal
                      f. Raise and support armies
                              i. Can‟t fund army for more than 2 years.
                      g. Provide for calling forth the Militia
                      h. Nec. And Proper
                              i. NO nec. and prop. for FR.
              2. Art. I, Sect. 10; Restrictions on states:
                      a. States can‟t grant letter of M&R
                      b. Some are conditional (e.g. w/o consent of Congress)
              3. Art. II, Sec. 1:
                      a. Executive power vested in President
                      b. Commander in chief
                      c. Power to make treaties
                      d. Power to appoint and receive ambassadors
              4. Art. III, Sec 2:
                      a. Original jurisdiction over: ambassadors, councilors
                          and other officers; treaties; diversity.
              5. Art. VI:
                      a. All about honoring debts with England.
                      b. Supremacy clause
d. Neutrality controversy:
       i. Facts: France goes to war with England. U.S. has a treaty with
          France agreeing to protect France‟s holdings in the new world. If
          U.S. went fired on Brits, though, Brits would seize U.S. shipping
              1. Washington issues Neutrality Proclamation. Where does he
                  have the power to do this?
       ii. Hamilton:
               1. Textual: Doing something about French privateers would
                   require act of Navy; President is commander in chief.
               2. Normative:
                       a. Congress is not in session
                       b. Congress debates too much
                       c. Importance of “unity, secrecy and dispatch”
                       d. Courts should not “sandbag” president after such a
                           declaration.
               3. Epistemological deference:
                       a. President has more experience, staff and
                           information.
               4. Strong reading: Executive power (royal prerogative) was
                   vested in the Crown. United States won the war, the same
                   executive power became vested in President via Art. II.
      iii. Helviticus:
               1. Constitution grants enumerated powers.
e. Habeas:
        i. Only Congress may suspend the writ since it‟s in Art. I. Ex parte
           Merryman.
f. Inherent powers:
        i. Weak view:
               1. All powers come from Constitution; some can be implied
                   from certain express provisions. Merryman.
       ii. Moderate (Field) view: Contrasted with domestic powers, the
           Courts will imply inherent authority where it is “an incident of
           sovereignty;” expressio unius is unavailing. People have vested
           sovereignty in the government via Constitution. Chinese
           Exclusion.
               1. Control of borders. Chinese Exclusion.
      iii. Strong view: Foreign relations power comes from the Crown, not
           the Constitution. Curtiss-Wright (dicta).
               1. Congress may delegate a ridiculous amount of authority to
                   President in foreign affairs cases. Curtiss-Wright.
                       a. Strong view of executive authority:
                               i. President is “sole organ” of foreign policy.
                                      1. He derives implicit substantive
                                          authority from expressed procedural
                                          grants (make treaties, recognize
                                          nations, etc), particularly since there
                                          is no expressed grant to Congress.
                                          Curtiss-Wright (dicta).
               2. Problems: Sovereignty is definitely divisible, contra
                   Curtiss-Wright. Also, VA had constitution before it
                   declared independence; each state was considered its own
                             sovereign. And sovereignty is a concept beginning in 17th
                             century Western Europe.
                 iv. Better argument: U.S. can‟t be worse off than other countries.


The Federal Judiciary and Foreign Relations

   I.     Jurisdiction over Foreign Relations Cases:
          a. Except for SCOTUS constitutional provision, fed courts must have Art. III
              jurisdiction and a congressional grant.
   II.    Justiciability: Standing, Ripeness, mootness
          a. Standing:
                   i. Requirements:
                           1. Injury in fact:
                                  a. Concrete and discrete
                                  b. Actual or imminent
                           2. Causation:
                                  a. Traceability
                                  b. Redressability
                           3. The interest in having the law complied with is insufficient
                              for standing, even for legislators. Raines v. Byrd (p.41).
                                  a. Votes must be “treated as a nullity.” Coleman.
                                           i. Must completely lose ability to be effective.
                                              If Congress can still remove funding, they
                                              haven‟t lost ability to be effective. Must
                                              have complete Constitutional impasse;
                                              Congress cannot equivocate by continuing
                                              to fund airstrikes. Campbell.
                                          ii. Unclear whether this is still good law.
                           4. Foreign nations:
                                  a. Have standing to sue private citizens.
                                  b. May be barred from suing U.S. by sovereign
                                      immunity, political question, etc.
                                  c. May not be able to sue on behalf of their citizens.
                                      Estados Unidos Mexicanos v. DeCostes.
          b. Ripeness:
                   i. The alleged harm must be immediate or imminent. Poe v. Ullman.
          c. Mootness:
                   i. Standing must exist throughout the litigation.
                           1. Unless the case is capable of repetition yet evades judicial
                              review. Roe v. Wade.
                  ii. Defendant‟s voluntary cessation of activity will not moot a case.
                       W.T. Grant Co.
   III.   Political Question Doctrine
          a. No categorical answer; balancing test (Baker v. Carr):
                  i. Textually demonstrable constitutional commitment to a political
                     department
                 ii. Lack of judicially discoverable and manageable standards.
                         1. Constitutional delegation of the war-declaring power to the
                             Congress contains a discoverable and manageable standard
                             imposing on the Congress a duty of mutual participation of
                             war. Orlando v. Laird.
                iii. Impossibility of deciding without an initial policy determination of
                     a kind clearly for nonjudicial discretion
                iv. The impossibility of a court‟s undertaking independent resolution
                     w/o expressing lack of the respect due coordinate branches of
                     government
                 v. An unusual need for unquestioning adherence to a political
                     decision already made
                vi. The potentiality of embarrassment from multifarious
                     pronouncements by various departments
          b. Split on whether how to determine meaning of “hostilities” within
             meaning of WPR is a PQ. Campbell.
                  i. President may want to be able to engage in hostilities w/o alerting
                     other country.
          c. Courts often decline to apply the PQD to questions of statutory
             interpretation, as well as questions of treaty interpretation. Japan Whaling.
          d. Court is more willing to give monetary than injunctive relief. Koohi.
   IV.    Deference to the Executive in Court
          a. Chevron deference:
                  i. Step 0: Is agency applying a statute is has been given power to
                     apply?
                 ii. Step 1: Has Congress spoken on the issue?
                iii. Step 2: Is the agency construction reasonable?
          b. Additional deference: “the authority of the executive branch to fill gaps is
             especially great in the context of immigration policy.” Gonzalez v. Reno.
                  i. “primacy of President and other executive officials in matters
                     touching upon foreign affairs.” Gonzalez v. Reno.
                 ii. Although not conclusive, views of Executive branch concerning
                     the meaning of a treaty are entitled to “great weight.” Lombera-
                     Camorlinga.
          c. Some concern when position is adopted in the course of litigation.
             Lombera-Camorlinga (dissent).
                  i. In Chevron context, agency litigational positions are not entitled to
                     deference if they are “wholly unsupported by regulations, rulings
                     or administrative practice.” Georgetown Univ. Hospital.
          d. Deference to Executive in recognizing citizens.


Federal Power over Foreign Relations
I.    Congressional Power
      a. Foreign Commerce Power:
              i. Plenary; stronger than ICC. Buttfield v. Stranahan (p.108).
                     1. States are prevented from imposing duties on imports and
                         exports w/o express Congressional permission.
                     2. Unclear whether limited by recent SCOTUS decisions
                         reining in ICC (preventing commandeering of state
                         officials and requiring instrastate activities to “substantially
                         affect interstate commerce,” Lopez).
      b. Power to Define and Punish offenses against the law of nations
              i. Necessary and Proper:
                     1. Congress has the ability to regulate individuals to comply
                         with international obligations. Arjona.
                              a. But, “whether the offense as defined is an offense
                                  against the law of nations depends on the thing
                                  done, not on any declaration to that effect by
                                  Congress.” Arjona.
             ii. Piracies clause: incorporates international definition explicitly (US
                 v Smith 1820 allows it “Congress may well define by using a term
                 of a known and determinate meaning, as by an express
                 enumeration of all the particulars included in the term.”
            iii. Limited by Bill of Rights. Boos.
      c. Inherent Powers:
              i. Inherent in its sovereign powers, Congress has sweeping power
                 over aliens. Fong Yue Ting.
                     1. Brewer‟s view: U.S. government may not have the same
                         powers as despotic governments.
      d. Admiralty:
              i. No explicit Constitutional Source
             ii. Only 2 modern limits suggested:
                     1. Jurisdiction: “there are boundaries to the maritime law and
                         admiralty jurisdiction which inhere in those subjects and
                         cannot be altered by legislation, as by excluding a thing
                         falling clearly within them or including a thing falling
                         clearly without” (Panama RR Co v Johnson 1924)
                     2. Uniformity: “when not relating to matters whose existence
                         or influence is confined to a more restricted field… shall be
                         coextensive with and operate uniformly in the whole of the
                         US” (Id; & US v Flores).
      e. Congressional Control of Private intercourse with foreign powers
              i. Logan Act 1799, 18 USC § 953
II.   Presidential Power
      a. Theories about the source:
              i. Delegated or enumerated powers theory (rely on actual words =
                 Taft)
               ii. Vesting theory (rely on „vesting‟ of „executive power‟ = Monroe
                   and TR)
              iii. Extraconstitutional powers (broadest notion) (Curtiss-Wright)
       b. Youngstown:
                i. Black:
                        1. The power to change legal rights is a power vested in
                             Congress, not the President.
                                 a. Vesting clauses
                                          i. Executive power doesn‟t grant this ability.
                                 b. “Take care” would become redundant otherwise
               ii. Frankfurter:
                        1. “Long standing practice” between branches.
                        2. Expressio unius w/respect to statute.
              iii. Jackson:
                        1. Categories:
                                 a. Strongest: President acts according to explicit
                                     authorization.
                                 b. Middle: President acts w/o explicit authorization or
                                     denial.
                                 c. Weakest: President acts contrary congressional
                                     authorization.
                        2. Thoughts:
                                 a. These are positivist claims
                                 b. These categories assume president doesn‟t have
                                     inherent constitutional authority to do so; ducks
                                     question.
                                 c. Congressional inaction and disapproval are
                                     different.
              iv. Vinson‟s dissent:
                        1. President‟s executive authority is analogous to nec. and
                             prop. Neagle.
       c. Political recognition of other countries is a function of the executive.
          Goldwater.
       d. Institutional advantages of President over Congress:
                i. Unity, secrecy, dispatch, information.
               ii. “Ordinary eighteenth century meaning of executive power” lodges
                   foreign affairs power in executive. Prakash and Ramsey.
III.   Relationship between Congress and the President
       a. Where Congress authorizes a general Presidential power, and the action
          the President takes is a necessary/expected incident to that power, it‟s
          cool. Dames & Moore.
                i. Even if Congress doesn‟t directly authorize the President‟s power,
                   if it‟s clear that they assumed it when writing the statute, it‟s cool.
                   In areas of foreign policy, silence does not equal disapproval.
                   Haig.
               ii. Justifications:
                        1. Long-standing practice (e.g. Youngstown (Frankfurter)).
                                a. Doesn‟t create power, but “raises presumption that
                                    the action had been taken in pursuance of its
                                    consent.”
                        2. Stronger when based around recognition power. Dames &
                            Moore.
                        3. Statements against interest – Congress wouldn‟t give up
                            that power.
                        4. Necessary and proper clause gives Congress ability to
                            expand President‟s incidental powers.
                                a. Note that Congress gets this, not Pres.
                                         i. Though this lets them act in penumbra,
                                            probably can‟t effect “core” powers.
         b. Ability to control information bearing on national security is an executive
            power existing apart from congressional authorization. Egan.
                i. “Unless Congress specifically has provided otherwise, courts
                    traditionally have been reluctant to intrude upon the authority of
                    the Executive in military…affairs.”
         c. Chadha (p.101): Congress cannot provide itself with one-house or two-
            house vetoes of agency action, cutting out the presentment requirement.
                i. Reasons:
                        1. Executive self defense from encroachment by legislature
                        2. Social welfare filter
                        3. „National perspective‟ onto legislative process- Pres as
                            representing the whole country
               ii. Effect: The fewer strings that Congress can attach to President, the
                    less they will be likely to delegate powers to executive.


War and War Powers

   I.    Congress‟ Powers Concerning War and The Use of Military Force
         a. Appropriations:
                i. Controls on army and navy
                       1. Can only appropriate to army for 2 years.
               ii. Argument for “dimmer” theory; if only “on-off,” Congress will
                   always choose “on.”
         b. Power to raise and support armies is a generalized power beyond
            appropriations:
                i. This is supported by the text of the Constitution. “Congress has
                   power to call forth the militia to execute the laws, repel invasions
                   and suppress insurrections.” Expressio unius argument  militia
                   probably cannot be used to invade other countries.
         c. Declare war, if not armed conflict.
               i. Declaration of war may be irrelevant. Used to serve notice
                  function, trigger of a number of default international law
                  provisions. Kahn – U.N. says force is illegitimate.
                      1. Even Congress acknowledges that declaration of war and
                          authorization of military force are different, as they do both
                          when declaring war.
              ii. Split on whether Congress must authorize “significant offensive
                  military actions.”
                      1. Though Washington and Adams asked for authorization for
                          such actions.
            iii. Alternatively, suggestion that “marque and reprisal” clause implies
                  that Congressional approval is needed even for smaller conflicts.
             iv. “Time of war” may mean something different outside the context
                  of Art. I. U.S. v. Averette (p.182)
                      1. Suggestion that Art. I war may be required to exercise war
                          powers over civilians (courts martial ), but not in other
                          contexts (the general Vietnam conflict does not require
                          declaration of war).
                      2. When determining the definition of “war” in private
                          contracts, courts are divided on requirement of Art I war.
      d. Define the laws of war.
               i. Congress can apply some of the law of war, even if not declaring
                  war. Bas.
                      1. “Dimmer” theory: Congress need not unleash total war; can
                          permit the President to exercise only limited war powers.
                          Brown. Little v. Barreme.
                              a. Pragmatic reasons:
                                        i. Might want relations with enemy in the
                                           future.
                                       ii. Additional available measures provides you
                                           with a credible threat.
                                      iii. Total war against enemy means enemy‟s
                                           total war against you.
                              b. Dissent: Default is total war, unless measures are
                                   expressly prohibited. Brown (Story).
                                        i. Suggestion that Brown did not survive the
                                           Prize Cases.
                      2. However, if war has come to the President, he has total war
                          powers. Prize Cases.
                              a. Some argument that the legislature is still the only
                                   body that can adjudicate private rights.
              ii. Authorization of war powers need not be expressed, but can be
                  inferred. Orlando.
II.   President‟s Independent Military Power
      a. General rule
              i. President can use the military consistent with the law of nations for
                 purposes short of war, particularly protecting the rights of citizens
                 abroad. Durand.
                      1. Don‟t need declaration for attack on the U.S.; this prevents
                         decapitation strikes.
                             a. Consider Mexican-American War; WW I.
                      2. Ordinary 18th century understanding was that threatening
                         uses of military force were not war. Acts giving rise to war
                         and declaration of war are different. Prof. Ramsey.
       b. Conflicts under the U.N. Charter
              i. Presidents have claimed authority to commit troops pursuant to
                 U.N. resolutions to assist by all necessary means. Korean
                 War/Somalia.
                      1. The U.N. Charter contemplated the committing of troops to
                         U.N. authority under Art. 43, upon House approval. When
                         Congress approved the Charter, they said that nothing other
                         than Art. 43 could be used to make troops available to
                         Security Council (so are these troops being “made available
                         to the Security Council?”) – also defeated amendment
                         “wherever a decision to use U.S. armed forces arises in the
                         Security Council, such a decision must be made by
                         Congress.”
                             a. Square with Youngstown?
             ii. Precedents for President to be involved in multilateral restoration
                 of peace. Boxer Rebellion.
                      1. Perhaps he is not initiating a war, but “defending the rule of
                         law.”
                      2. Perhaps he is – Stromseth thinks war is to be defined by the
                         nature and circumstances of the operation and the
                         magnitude of combat risk entailed.
                             a. Security Council is not democratically accountable
                                 to American people, thus does not provide a
                                 replacement for Congressional authorization.
       c. Can‟t use troops for law enforcement. Posse Comitatus Act. (p.235).
              i. PCA doesn‟t allow “direct” aid, but “indirect” (e.g. information,
                 equipment) is ok.
             ii. PCA doesn‟t apply to insurrections.
            iii. PCA may not apply outside U.S. territory.
III.   Congress‟s Ability to Regulate President‟s Use of Force
       a. War Powers Resolution:
              i. Sections:
                      1. Section 2: Defines war. Probably intended to capture
                         everything above Durand-level activity.
                             a. 2(a) explains Congress‟ understanding of
                                 President‟s constitutional powers.
               2. Section 4: requires President to notify Congress when
                   troops are “substantially increased.”
                       a. Even though Presidents consider WPR
                           unconstitutional, they often still give notice
                           “consistent with” WPR.
               3. Section 5: president must recall troops in 60 days without
                   Congressional approval.
                       a. Doesn‟t this mean President can violate
                           Constitution for 60 days?
                                i. This may not be an interpretive thing, but a
                                   remedy.
                       b. Section 8: nothing in other statutes or treaties will
                           be inferred to abrogate WPR.
       ii. Congress can still be politically railroaded.
     iii. No appropriations limitation.
      iv. Presidential interpretation:
               1. Marbury says unconstitutional statutes are immediately
                   unconstitutional, thus President in not bound to follow
                   WPR.
                       a. Oddly, Presidents sometimes think they should
                           enforce unconstitutional statutes unless they are in
                           “gross contradiction” or they affect Presidential
                           powers.
               2. Ability to bring back troops by concurrent resolution avoids
                   presentment requirement – this violates Chadha.
               3. Harder to speak with one voice in international affairs.
               4. Incentivize adversary to ramp up efforts for 60 days at
                   least.
       v. No court has upheld a challenge under WPR:
               1. Ange v. Bush (political question and ripeness)
               2. Lowry v. Reagan (equitable discretion)
               3. Sanchez v. Reagan (political question)
               4. Corckett (political question)
      vi. Last in time problems. Specific statute governs the general.
     vii. Does change extralegal expectations.
b. General powers tension:
        i. President can decide specific military moves on “the battlefield.”
               1. Extrapolates out to expanding war to Cambodia, e.g.
               2. Narrow view: executive is unitary, but not necessarily P, S,
                   C & V.
       ii. Congress must appoint officers and must be consulted to affect
           private rights.
               1. Extrapolates out.
c. Legislator standing to sue:
        i. Votes must be “treated as a nullity.” Coleman.
                      1. Must completely lose ability to be effective. If Congress
                         can still remove funding, they haven‟t lost ability to be
                         effective. Must have complete Constitutional impasse;
                         Congress cannot equivocate by continuing to fund
                         airstrikes. Campbell.
      d. Suspension of civil liberties (Milligan/Quirin)
              i. Times when President can do this on his own.
                      1. In other countries
                      2. During time of rebellion/when the courts are not open
             ii. At least need Congressional authorization to do this inside the
                 country, though this is dubious.
            iii. If a matter of treason (civilian), Milligan applies  at least need
                 Congressional approval to impose martial law when courts are still
                 open.
            iv. If a matter of war crimes (belligerent), Quirin applies; supposedly
                 had Congressional approval, though in actuality this is ambiguous.
IV.   Actions in Response to Sept. 11
      a. “No citizen shall be imprisoned or otherwise detained by the United States
         except pursuant to an Act of Congress.” 18 U.S.C. §4001(a).
              i. Is “pursuant to an Act of Congress” satisfied by AUMF?
                      1. Plurality of Hamdi (“all necessary force” = “fundamental
                         incidents to war”) + Thomas: Yes.
                      2. Ginsberg and Souter in Hamdi: No, in light of statutory
                         history, 4001(a) should be read broadly.
                      3. Scalia and Stevens in Hamdi: Unconstitutional with respect
                         to U.S. citizens; Quirin was wrong.
             ii. Plurality: detention of individuals can not be indefinite (Congress
                 only authorized detention on the understanding of “longstanding
                 law-of-war principles”).
                      1. However, “detention to prevent a combatant‟s return to the
                         battlefield is a fundamental incident of waging war.”
            iii. If persons can be detained, what process is required?
                      1. Plurality of Hamdi: Notice and “fair opportunity before a
                         neutral decisionmaker.” Probably has right to counsel (or at
                         least representation of some sort – don‟t get an attorney for
                         Combatant Status Review Tribunals)(got one for SCOTUS
                         and remand).
                             a. Hearsay is fine.
                             b. Presumption in favor of government
                      2. Test from plurality (p.289): Matthews:
                             a. Weigh the private interest against the government‟s
                                  interest, including the function involved and the
                                  burdens on the Government.
      b. Individuals detained in GITMO can sue anywhere they can get jurisdiction
         over Secretary of State. Hamdi. Individuals detained in the U.S. must sue
         their immediate captors. Padilla.
          c. Aliens in Gitmo (or where the U.S. has “territorial jurisdiction) are within
             the reach of courts for habeas purposes. Rasul.
                  i. Process for aliens?
                        1. Split: Khalid (no process), In re Gitmo Cases (fundamental
                            rights).
          d. Origins of presidential powers to establish tribunals (p.309 supp):
                  i. Powers from the crown (?)
                 ii. Commander in chief
                        1. Go to Quirin and Milligan
                iii. AUMF
                iv. UCMJ
                        1. Congress recodified UCMJ without change in 1950, after
                            Quirin had held that the previous Articles had “provided”
                            for military tribunals, though it appeared the Articles only
                            recognized their existence.
          e. Surveillance (cite Kerr):
                  i. AUMF: Is domestic surveillance a fundamental incident of war?
                        1. “Indefinite detention for the purpose of interrogation is not
                            authorized.” Information gathering similarities.
                        2. Wiretapping isn‟t a use of force.
                        3. Patriot Act a month after AUMF; could have included it in
                            that.
                 ii. Inherent authority:
                        1. All the cases (e.g. Keith) on this suggest that in absence of
                            Congressional action, this is acceptable. With congressional
                            prohibitions, it‟s unclear – see FISA, which repealed Title
                            III‟s reservation clause, saying that Congress expressly
                            foreswore any intent to regulate collection of foreign
                            intelligence.
                        2. Silberman‟s concurrence in Campbell: „The Prize
                            Cases…stand for the proposition that the President has
                            independent authority to repel aggressive acts by third
                            parties even without specific congressional authorization,
                            and courts may not review the level of force sleected.”
   V.     Ending a war:
          a. Can be done by treaty, legislation or presidential proclamation. Ludecke v.
             Watkins (p.197).


Federal Preemption of State Law in the Foreign Relations Context

   I.     Preemption by Statute or Treaty
          a. Implicit Preemption by Statute:
                 i. Methods of implicit preemption:
                        1. Occupation of the field
                       a. Where a state has not even nominally asserted
                           traditionally police powers, courts may only need to
                           find field preemption. Garamendi.
                       b. “Comprehensive”
                       c. Congress wants only its statutes to be in effect.
               2. Conflict
                       a. Where a state has exercised traditional police
                           powers, it may make sense to require a
                           conflict…and a subsequent balancing test?
                           Garamendi.
                       a. Better to describe it as “logically inconsistent,” not
                           “can‟t comply with both”
                                i. Occasionally a legal rule will be permissive.
                                    If a state law permits an action and a federal
                                    law prohibits it, the state law would still be
                                    preempted even if you could comply with
                                    both – they‟re logically inconsistent.
               3. Obstacle
                       a. When there‟s no logical conflict, Congress hasn‟t
                           said that any state law is displaced, and a whole
                           field has not been occupied.
                       b. If the state law is in the way of underlying
                           Congressional purpose, it must give way.
                                i. Critique: Obstacle preemption is heavily
                                    dependent on the court‟s formulation of
                                    congressional purpose.
       ii. Principles:
               1. Anything Congress can do expressly, they can do
                   implicitly. Expressio unius doesn‟t necessarily work here.
               2. Domestically, presumption that “historic police powers of
                   the state” (e.g. regulating employers) is to be left to states.
                   De Canas. Perhaps no presumption either way anymore.
                   Locke.
               3. Making foreign policy statements, even by regulating state
                   government‟s commerce, is left to feds. Crosby [also cited
                   formal complaints by other governments].
                       a. Maybe Crosby was wrong; national policy doesn‟t
                           produce individual boycotts.
      iii. Rationale:
               1. Geographical uniformity. Congress can set a ceiling and a
                   floor; “optimizing.”
               2. Concern for foreign consulates.
      iv. Congress can “reverse preempt;” provide default rule and permit
           any state regulation to trump Congressional.
               1. Gives states an incentive to regulate.
b. Preemption by Treaty:
              i. First determine whether the statute is self-executing; only self-
                 executing treaties preempt.
             ii. Unclear whether to have a presumption in favor of preemption. El
                 Al Air and Guaranty Trust.
            iii. Van Alstine suggests that many international commerce treaties
                 should be interpreted so as to allow judges to fill gaps from the
                 general principles of the treaty itself.
II.   Preemption without a Statute or Treaty
      a. States can‟t engage in foreign policy, even if there isn‟t a statute.
         Zschernig. This is the only such case.
              i. Probably a purpose, not effects, test.
             ii. Expressio unius objection; powers not granted in the constitution
                 are left to the states. Explicit limitations against marque and
                 reprisal, entering treaties, etc, suggest that tangential foreign policy
                 should be ok. Virginia‟s constitution said it could send foreign
                 ambassadors well into the 19th century.
            iii. Factors for Foreign Affairs Preemption (in Japanese Forced Labor
                 Lit) (p.316-2001).
                      1. Legislative history (of state statute) demonstrates purpose
                          to influence foreign affairs directly
                      2. Statute targets particular countries
                      3. Statutes does not regulate an area that Congress has
                          expressly delegated to states
                      4. Establishes judicial forum for negative commentary about
                          Japanese gov‟t
                      5. Japanese gov‟t asserts that litigation of those claims would
                          complicate and impede diplomatic relationships
                      6. US contends that it impermissibly intrudes upon foreign
                          affairs power
      b. Dormant Foreign Commerce Clause:
              i. Step 1, from Interstate test: If a state is regulating foreign
                 commerce, the courts will more searchingly apply a balancing test:
                 if the burden imposed on foreign commerce is clearly excessive in
                 relation to the putative local benefits. Pike.
             ii. Step 2: And the state law must not prevent the federal government
                 from speaking with one voice. Container Corp.
                      1. One voice may be weaker after Barclays Bank, though BB
                          may not have survived Garamendi.
      c. Valid executive agreements can implicitly preempt state law. Garamendi.
              i. Problem: government‟s position is often developed in litigation.
                 Weak (domestically) via Meade.
             ii. Two reasons this helps executive power:
                      1. Affirms notion of unexpressed presidential foreign affairs
                          powers – possibly used vs. Congress.
                      2. Suggestion that Congress has certain expressed presidential
                          powers, and President has everything else (residual).
                                  a. Completely contra Black in Youngstown (only
                                     Congress has ability to affect private rights).
                 iii. Note that the 4 Justices who dissented are still on the court. 2
                      members of the 5 member majority are gone.
                 iv. Common to say that the foreign policy is removed from the states
                      and given to the judiciary.
                  v. Garamendi hurts federalism and thus separation of powers.
                      President no longer needs Congress. Ramsey.


Treaties and Other International Agreements

   I.     Self-Execution of treaties.
          a. Definition: A treaty that can be enforced by courts without domestic
              implementing legislation.
                   i. Factors for intent explicitly created (Frolova v USSR 7th Cir 1985)
                      (CB 344)
                          1. language and purposes of agreement as a whole
                          2. circumstances surrounding its execution
                          3. nature of obligations imposed by agreement
                          4. availability and feasibility of alternative enforcement
                               mechanisms
                          5. implications of permitting private right of action
                          6. capability of judiciary to resolve dispute
          b. Trigger: If it‟s about private rights, it‟s not self-executing – requires
              implementing legislation. If it‟s about relations between nations, those
              effects are self-executing.
                   i. Split on presumption of self-execution.
                          1. However, “A treaty cannot be self-executing to the extent
                               that it involves governmental action that under the
                               Constitution can be taken only by the Congress.” Postal.
                  ii. “We are admonished to interpret treaties in the context of their
                      promulgation.” Postal.
                          1. R3d says look at intent of U.S.
                          2. D.C. Cir. says look at intent of the signatory parties.
          c. Some self-executing treaties only create quasi-causes of action against the
              government (not against other private persons). Asakura.
          d. Unlikely to find parts of U.N. Charter self-executing. Frolova.
   II.    Last In Time Rule
          a. Definition: When two statutes or treaties “clearly” conflict, the more
              specific governs the more general. When that doesn‟t help, last in time
              prevails.
                   i. This is true even if it causes U.S. to abrogate a treaty. Whitney.
          b. Having a last in time statute undo an earlier in time treaty is much more
              common than having a last in time treaty to undo an earlier time statute.
                i. Reluctance has more to do whether it‟s really clear that as far as
                   U.S. domestic law is concerned that treaty can do everything a
                   statute can do?
                       1. Caselaw clearly saying no (appropriations – Jay treaty;
                           criminal liability – revolution of 1800). Some unclarity
                           (confer power on a federal agency? create a federal
                           agency?) Some situations where the answer is yes
                           (exchange property between sovereigns).
                       2. Also, statutes need more of the elective branches (House)
                           to pass.
III.   Treaties and the Structure of the Federal Government
       a. The fact that Congress may have the power to do something doesn‟t mean
          that it can‟t be done with treaty (e.g. disposal of territory). Edwards v.
          Carter.
       b. When to use treaty vs. statute:
                i. Some indications for when you should use statute: raising
                   taxes/tariffs, making something a crime. These are exclusive
                   grants.
               ii. Some indications where you should use treaty: essentially gov‟t to
                   gov‟t transaction, e.g. exchange of Panama Canal.
              iii. Intermediate zone: can a treaty empower a federal officer to
                   exercise additional domestic powers? Still unclear.
       c. Consider whether a treaty creates delegation or appointments clause
          issues.
                i. Bradley: Dualism:
                       1. Distinguishes between the power that makes international
                           law and domestic law. Which is to say “No self-
                           execution.”
                       2. Domestic law: Main thing framers were concerned about
                           was how to keep other branches independent from
                           Congress.
                       3. International law: Different…Articles of Confederation
                           entailed sovereign states conferring power on an
                           international body. This power looks very similar to the
                           power granted to ICJ.
               ii. Delegation of Authority to International Institutions
                       1. no general problems, though potentially if (1)
                           accountability of domestic institutions weakened too much
                           or (2) aggrandizement of one branch at expense of others
                       2. International institutions
                               a. UN Charter not self-executing (Diggs v Richardson)
                               b. NAFTA chapter 19 found constitutional (Am
                                    Coalition for Competitive Trade v Clinton DCC
                                    1997) (Prof: hard issue = applies to private parties
                                    AND displaces article III courts; prob would be
                                    upheld because of specialized jurisdiction –
                                  sufficiently related to control of customs and tariffs
                                  (e.g. public rights article I)
                              c. NAFTA Chapter 11: may be problematic (Loewen
                                  Group Arbitration)
IV.   Treaties and the Federal System
      a. The treaty power, when coupled with the necessary and proper clause, can
         have domestic effects that exceed Congress‟s “normal” domestic
         authority. Missouri v. Holland.
              i. Suggests that the recent commerce clause restrictions don‟t apply
                 in international context. Lue.
             ii. Justifications:
                     1. Not restricted by 10th Amendment.
                              a. No, 10th Amendment proves it is exclusive, not that
                                  it is unlimited.
                                        i. But if the federal government couldn‟t do
                                           these things, the states would have to and
                                           the Constitution is about getting the states to
                                           honor their damn creditors.
                     2. Still limited by other constitutional provisions? E.g. 1st, 5th
                          Amendment. No “specific textual conflicts.” Reid
                          (plurality).
                     3. Political safeguards.
                              a. But, dominated by President
                              b. Treaty making is more opaque than statutes.
                              c. Rise in executive-congressional agreements cuts
                                  down on Senate‟s influence.
V.    Treaty interpretation and termination
      a. Domestic interpretation: If President makes statement in course of
         presenting treaty to Senate that statement should be binding on him for
         contract/reliance reasons.
              i. This should trump Chevron deference.
      b. International interpretation:
              i. Many non-anglo courts construe treaties objectively.
      c. Treaty termination problem:
              i. When international law confers a power on the United States, who
                 gets to exercise that power on behalf of the U.S.?
                     1. Argument for Congress:
                              a. Justice Black in Youngstown: changing legal rights
                                  requires legislative power.
                                        i. Withdrawing from mutual defense treaty
                                           changes legal rights.
                                       ii. Only really works if the domestic law
                                           consequences are a direct result of the treaty.
                              b. Congress‟ necessary and proper power works
                                  horizontally. Does that restrict the other branches‟
                                  power?k
                    2. Argument for 2/3 Senate:
                             a. Because the Senate is involved in one choice,
                                 Senate is involved in other.
                                      i. Doesn‟t work with appointment-removal
                                          though.
                             b. The 2/3 Senate requirement makes it hard to get
                                 into a treaty, so maybe it should be easy to get out.
                                      i. Then again, maybe it should be hard.
                                     ii. More importantly maybe it only addresses
                                          the “getting into a treaty” part.
                    3. Argument for President:
                             a. There is no power to get out of treaties, but powers
                                 conferred on executive are general, powers
                                 conferred on legislature are specific.
                             b. This is just an operational action, like going to
                                 Security Council and voting.
                                      i. Congress has never by statute tried to
                                          control Security Council voting, though it
                                          has tried to control votes in other
                                          organizations, IMF, World Bank, etc.
                                              1. Executive always says no; on going
                                                  debate.
                             c. Broad theory: President is inheritor of King‟s
                                 power.
                             d. How is this checked by Congress?
                                      i. Horizontal nec. and prop. clause.
VI.   Executive Agreements
      a. Congressional-Executive Agreements:
              i. Uh, expressio unius  treaty power. But Made in USA Foundation
                 says it‟s ok.
                    1. Tribe‟s textualism(?) hard to keep this from booting out all
                         executive agreements.
             ii. Very unlikely that treaty could lower tariffs; need House.
                    1. One thing Congress did was pass conditional tariffs,
                         conditioning U.S. rates on other countries. Problem with
                         writing this into a statute is world changes a lot. Congress
                         defined this generally. Executive was charged with
                         determining this.
                             a. Connecting law, treaty or Constitution with
                                 President‟s power to talk to other countries, the
                                 theory is that he can enter executive agreements.
            iii. Historical practice: C-E not interchangeable with Treaty =
                 commercial agreements more often done through C-E, but arms
                 control, extradition and HR treaties are Article II
      b. Sole Executive Agreements
              i. More troublesome
         1. No legislative agreement whatsoever
         2. Irony: there are no SC opinions upholding C-E, but there
             do exist some to uphold Sole Executive Agreements
 ii. international compacts can be SEA
         1. US v Belmont (1937) (CB 421)
iii. US State Dept Manual (factoring test)
         1. Extent to which agreement involves commitment or risks
             affecting nation as a whole
         2. Whether agreement is intended to affect state law
         3. Whether agreements can be given effect without enactment
             of subsequent legislation by Congress
         4. Past US practice as to similar agreements
         5. Preference of Congress as to particular type of agreement
         6. Degree of formality desired for an agreement
         7. Proposed duration of agreement
         8. General international practice as to similar agreements
iv. Limits
         1. President‟s own powers (strongest justification)
                 a. Recognition Powers (Goldwater)
                 b. Ambassadors
                 c. Commander in Chief
         2. Power probably not as extensive as Treaty Power – lacks
             process protections of article II treaties or even for C-E
             agreements; Article II would suggest President has limited
             discretion to act on own
         3. To be valid, SEA has to stem in some fashion from an
             independent President power (Youngstown) – if this is the
             limit, then the power wouldn‟t extend to certain treaties,
             like HR or environmental or even commercial

				
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