Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

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TABLE OF CONTENTS 
 
INTRODUCTION                                                         601 
 
I. THE REQUIREMENT OF EQUIVALENT TREATMENT                           611 
 
   A. The Supremacy Clause and the British Rule                      613 
 
   B. The Purpose and Original Public Meaning of the Supremacy 
        Clause                                                       616 
 
   C. Early Judicial Construction                                    619 
 
      1. Ware v. Hylton on the Supremacy Clause's Reversal of the 
           British Rule                                              619 
 
      2. Foster and the Requirement of Equivalent Treatment          621 
 
   D. The Contrary View                                              623 
 
II. THE NON-SELF-EXECUTION EXCEPTION                                 628 
 
   A. Four Versions of Non-Self-Execution                            629 
 
   B. Non-Self-Execution in Foster and Percheman                     632 
 
      1. The Foster Conundrum                                        633 
 
      2. Intent of the U.S. Treatymakers?                            638 
 
      3. Salvaging Foster                                            641 
 
      4. Percheman and the Presumption of Self-Execution             644 
 
   C. Understanding Medellin                                         646 
 
      1. The Effect of Non-Self-Execution                            648 
 
      2. The Cause of Non-Self-Execution                             651 
 
         (a) Presumption Against Self-Execution Rebuttable by Clear 
               Statement that Treaty Has Domestic Legal Force        652 
 
         (b) Test Turning on Whether Treaty Requires Direct 
               Judicial Enforcement                                  654 
 
         (c) No Presumption                                          656 
 
         (d) Default Rule of Self-Execution Rebuttable by Evidence 
               of Intent To Require Implementing Legislation         657 
 
         (e) Test Turning on the Intent of U.S. Treatymakers         658 
 
         (f) Medellin as a Nonjusticiability Case                    660 
 
      3. Interpreting Medellin                                       665 
 
III. DECLARATIONS REGARDING SELF-EXECUTION AS MODERN-DAY PERCHEMAN 
       OR MEDELLIN STIPULATIONS                                      667 
 
   A. Declarations of Non-Self-Execution                             672 
 
      1. The Case Against Validity                                   672 
 
      2. The Inadequacy of Existing Defenses                         675 
 
      3. Evaluating the Arguments Against Validity                   677 
 
          (a) Validity of Reservations of Non-Self-Execution         677 
 
          (b) Validity of Declarations of Non-Self-Execution         681 
 
   B. The Validity of Declarations of Self-Execution                 685 
 
CONCLUSION                                                           694 

INTRODUCTION

Treaties are being invoked increasingly in the courts, both in cases connected to the "war on terror" (1) and in cases that would not otherwise be regarded as particularly international in nature. (2) When confronted with treaties, the courts often address as a threshold question whether a treaty is "judicially enforceable." Often, though not always, they will address this question in the context of deciding whether the treaty is "self-executing." The Supreme Court introduced this concept as the basis of an alternative holding in Foster v. Neilson (3) in 1829, but, after disavowing its Foster holding four years later in United States v. Percheman, (4) the Court all but abandoned the field for the next 174 years. In the meantime, the lower courts confessed to being confounded by the "self-execution" question. (5) The Supreme Court reentered the field last Term in Medellin v. …