Does Federalism Constrain the Treaty Power?

The Supreme Court\u27s revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties. Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It also demonstrates that international law and constitutional law are not estranged on these questions. Not only does international law require federal states to interpret their constitutions so as to permit adhering to treaties, but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent. Finally, the Article develops a treaty-compact device as an innovative tool for dissolving federalism\u27s constraints. Taking advantage of parallel doctrinal developments that liberate state and national authority relating to foreign and interstate compacts, it demonstrates that combining the use of compacts with treaties offers solutions on each of the new federalism\u27s fronts. The answer, then, is that federalism does not constrain the treaty power, when the Constitution is read as an organic whole, and interpreted in a fashion in keeping both with international law and the new federalism itself

Taking Care of Treaties

There is little consensus about the scope of the President\u27s powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President\u27s general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope with breaches, accordingly, risks distorting the positive law or vesting the President with a potentially boundless authority - or, in the alternative, risks a recurring gap between our international obligations and our domestic law. The Take Care Clause affords a surprisingly well-tailored solution. Take care authority has been neglected in recent discourse, and not without reason. On the one hand, it is not obvious that it encompasses treaties, or licenses presidential authority beyond the capacity to ensure compliance within the executive branch; on the other hand, it smacks of unbridled executive power. These objections can be met. As the Article explains, the Take Care Clause includes treaties, including - critically - some treaties conventionally labeled as non-self-executing, and permits presidential authority beyond self-regulation. The text, case law, and practice further support the idea that this authority may be divested by the Constitution, by treaty, or by statute, and must satisfy additional criteria that guard against vesting the president with plenary lawmaking authority. The Article explains how this theory applies to potential controversies involving compliance with the decisions of international tribunals (like those of the International Court of Justice, or arising under the WTO or the Law of the Sea Convention), legislative decisions by institutions like the Security Council (such as a resolution enabling war crime proceedings against former U.S. officials), and finally treaties that afford no recourse to international mechanisms. The result is a theory that reinforces congressional supremacy without requiring that treaty obligations founder upon it

Putting Missouri v. Holland on the Map

This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress\u27 Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court\u27s decision, but also more recent critiques of the doctrines with which it has long been associated

Restoring (and Risking) Interest in International Law

Jack Goldsmith of Harvard Law School and Eric Posner of the University of Chicago Law School articulate a comprehensive and engaging theory of state behaviors in their new book, “The Limits of International Law,” but with several internal flaws. Their book uses rational choice theory to explain how states act rationally to maximize their interests, and how, in doing so, states align themselves (sometimes) with international law. This book review argues that while Limits is a skilled and pioneering work that deserves to be taken seriously, it also suffers from tensions and over-generalizations that undermine its claims. As a result, I posit, Limits may be construed to undermine the importance of international law, thereby diminishing respect for it in the U.S. and abroad. The review concludes that the insights of Limits must be refined and clarified through deeper theoretical analysis and through examination of specific episodes of state behavior

\u3cem\u3eBond\u3c/em\u3e\u27s Breaches

Bond v. United States illustrates a new maxim for today’s Supreme Court: hard cases make no law at all. To be sure, Bond’s bottom line was not particularly difficult. But once the Supreme Court ultimately did take the case, it became hard to decide—at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised. If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the Justices proffered was pretty bad. As explained in Part II, Bond’s opinions mused about what they considered a potential constitutional breach: the gap between the national government’s typical authority over domestic matters, on the one hand, and the domestic authority it might assert while implementing treaties, on the other. If tolerated, the basic argument went, such a gap would breach the constitutional commitment to a national government of limited authority. Justice Scalia and Justice Thomas, moreover, voiced concern that the federal government would actively exploit that gap. The problem, on their view, was not merely that treaties, like statutes, might occasionally breach a reserve of state authority; rather, treaties would be differentially exploited by the national government precisely for that reason. Each of the Court’s opinions tried to establish a means by which the judiciary could prevent that from happening. The real problem was that none of the nine Justices offered any counternarrative. The majority did say that the statute in question was not a sufficiently overt attempt to trench on state prerogatives, but that was cold comfort: Chief Justice Roberts’s exertions at statutory construction had little broader appeal (Justice Scalia, who did nothing to hide his distaste, reasonably doubted that other statutes would be subjected to such “gruesome surgery”), and also offered little hope of aligning the international and domestic authority of the United States. As Part III indicates, the Court should have acknowledged the other forms of breach it was ratifying. The most obvious is the risk of jeopardizing U.S. compliance with its international obligations, contrary to constitutional principles designed to reduce that risk. By focusing on the prospect that the national government will exploit international opportunities to expand its authority—or at best, per the Chief Justice, that Congress legislates with the same attitude toward state and local authority that it always does—the opinions failed to provide the kind of comprehensive account that could guide the political branches and future courts

The Political Economy of Youngstown

The time is ripe for a non-doctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power. A political economy approach better explains the problem to which Justice Jackson was responding - the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis - and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously - that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both empirical surveys of executive orders and case studies suggest that the President may react to the risk of legislative disapproval (which under Youngstown will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives - and, in general, advocates re-seizing Steel Seizure

Subsidiarity and Self-Interest: Federalism at the European Court of Justice

Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice\u27s jurisprudence as well. It begins by analyzing the federalism problems posed by the Court\u27s case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that the Court\u27s existing compensation and rights-centered rationale is largely insufficient, the article develops a two-fold argument for sustaining Member State liability even under the subsidiarity principle: such liability is essential to deterring Member State cheating on implementation, and encourages the development of directives that delegate rather than precisely prescribe regulatory content. The article concludes by describing possible modifications to prevailing liability doctrine in order to render it more consistent with the subsidiarity and proportionality principles

Against Principled Antitrust

Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO constitution, that of bargaining for a single undertaking, to competition policy. If antitrust is to be pursued globally, it should be addressed by principles and through negotiations tailored to its distinctive needs