I. Private Party vs. Government
a. Inherent foreign affairs power:
i. Three theories of inherent power
b. Bars against suit
1. Legislator Standing
iv. Political Question
v. Deference to Executive Interpretation
c. Sources of Governmental power:
1. Foreign Commerce
2. Define and Punish
3. Inherent powers and Admiralty
4. Private Intercourse with Foreign Nations
6. Raise and Support Armies
7. Declare War
a. Define Laws of war (dimmer theory)
2. Commander in Chief
3. Control of Information
4. Defensive War
5. Multilateral Restoration of Peace
6. Executive Agreements
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
ii. Last in Time
iii. Delegation and Appointments concerns
II. States vs. the government
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:
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
2. Define laws of war
3. Posse Comitatus Act
4. War Powers Resolution
5. Power over private rights and appointments
b. Specific powers:
i. Private Rights:
IV. Historical question
a. The Framing
i. Articles of Confederation
ii. The Constitution‟s Improvements over the Articles
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
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
2. State courts interpreted national matters; led to collective
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
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
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?
1. Textual: Doing something about French privateers would
require act of Navy; President is commander in chief.
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
3. Epistemological deference:
a. President has more experience, staff and
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.
1. Constitution grants enumerated powers.
i. Only Congress may suspend the writ since it‟s in Art. I. Ex parte
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
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.
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
1. Injury in fact:
a. Concrete and discrete
b. Actual or imminent
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.
i. The alleged harm must be immediate or imminent. Poe v. Ullman.
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
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
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
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
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-
c. Some concern when position is adopted in the course of litigation.
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
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.
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 =
ii. Vesting theory (rely on „vesting‟ of „executive power‟ = Monroe
iii. Extraconstitutional powers (broadest notion) (Curtiss-Wright)
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
1. “Long standing practice” between branches.
2. Expressio unius w/respect to statute.
a. Strongest: President acts according to explicit
b. Middle: President acts w/o explicit authorization or
c. Weakest: President acts contrary congressional
a. These are positivist claims
b. These categories assume president doesn‟t have
inherent constitutional authority to do so; ducks
c. Congressional inaction and disapproval are
iv. Vinson‟s dissent:
1. President‟s executive authority is analogous to nec. and
c. Political recognition of other countries is a function of the executive.
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.
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
2. Stronger when based around recognition power. Dames &
3. Statements against interest – Congress wouldn‟t give up
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.
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
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
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
1. Though Washington and Adams asked for authorization for
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
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
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
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
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
1. Don‟t need declaration for attack on the U.S.; this prevents
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
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
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
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:
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
a. Doesn‟t this mean President can violate
Constitution for 60 days?
i. This may not be an interpretive thing, but a
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
a. Oddly, Presidents sometimes think they should
enforce unconstitutional statutes unless they are in
“gross contradiction” or they affect Presidential
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
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
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
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
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
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
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
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
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
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
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.
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.
c. Congress wants only its statutes to be in effect.
a. Where a state has exercised traditional police
powers, it may make sense to require a
conflict…and a subsequent balancing test?
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.
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
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.
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.
1. Geographical uniformity. Congress can set a ceiling and a
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
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
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
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
i. Factors for intent explicitly created (Frolova v USSR 7th Cir 1985)
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
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
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
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)
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.
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
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
i. Bradley: Dualism:
1. Distinguishes between the power that makes international
law and domestic law. Which is to say “No self-
2. Domestic law: Main thing framers were concerned about
was how to keep other branches independent from
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
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.
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
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
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‟
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
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
c. Broad theory: President is inheritor of King‟s
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
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
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
1. President‟s own powers (strongest justification)
a. Recognition Powers (Goldwater)
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