The Constitutional Power to Interpret International Law

Paulsen, Michael Stokes, The Yale Law Journal

FEATURE CONTENTS

INTRODUCTION

  I. THE FOG OF INTERNATIONAL LAW
     A. The Trouble with Treaties
     B. Executive Agreements
     C. "Customary International Law"

 II. THE POWER TO SAY WHAT INTERNATIONAL LAW IS (FOR THE UNITED
     STATES)
     A. Congress's Power To Interpret and Apply International Law as
        Domestic U.S. Law
     B. The President's Power To Interpret and Enforce International
        Law
     C. The U.S. Judicial Power To Interpret International Law for the
        United States

III. THE RELEVANCE AND IRRELEVANCE OF INTERNATIONAL LAW TO UNITED
     STATES LAW AND THE WAR ON TERROR
     A. The Power To Initiate War-Jus ad Bellum
     B. The Power To Wage War-Jus in Bello

CONCLUSION

INTRODUCTION

"International Law" is all the rage. The subject is one of the hottest courses in the law school curriculum. And it is frequently the focus of great public attention, given events in the post-9/11 world. Has particular conduct by the United States "violated international law"? Is some contemplated--or completed--course of conduct "consistent with international law"? These are very much the questions of the day.

But what is the force of international law as a matter of the constitutional law of the United States? To what extent is international law, whatever its content and the method for making or discerning its content, binding as U.S. law? More pointedly, to what extent is international law not recognized as authoritative by the U.S. Constitution? Just as importantly, who determines the force and content of international law-who interprets and applies it, authoritatively, for the United States? May international bodies define legal norms for the United States? Is interpretation of international law's commands uniquely within the province of international tribunals? Or, quite the reverse, is it "emphatically the province and duty" of U.S. officials to say (for the United States) "what the law is," (1) including international law to whatever extent it is thought binding on American policymakers? If international law is, in some instance, in conflict with other commands or powers of the U.S. Constitution, how should such conflicting legal requirements and obligations be reconciled by courts and policymakers acting on behalf of the government of the United States?

These, too, are the vital questions of the day. Yet they are surprisingly undertheorized. These fundamental constitutional questions concerning international law are often shortchanged by international law scholarship, which frequently brushes by them, blithely assuming that the United States is bound by international law if that is what the regime of international law says, without giving serious attention to the acute U.S. constitutional problem posed by such an assumption. In part, this is attributable to the parochialism of academic legal specialties. "International Law" scholars form their own niche--clique, even--within the academy. Few international law scholars are also serious U.S. constitutional law scholars. The reverse is also the case to a large extent (though more and more constitutional law scholars have gravitated to interests in the field of international law). (2) The result is a kind of segregation of legal thinking. International law has become, ironically, intellectually isolationist and parochial, excluding critique from a U.S. constitutional law perspective and declining (in the main) to engage with it.

My thesis in this Essay is a straightforward one and, from the perspective of basic postulates of U.S. constitutional law, should be an obvious one: for the United States, the Constitution is supreme over international law. International law, to the extent it issues determinate commands or obligations in conflict with the U.S. Constitution, is unconstitutional. Where there exists a conflict between the U.S. Constitution's assignments of rights, powers, and duties, and the obligations of international law, U.S. government officials must, as a matter of legal obligation, side with the Constitution and against international law, because the Constitution, and not international law, is what they have sworn to uphold. As a matter of domestic constitutional law, U.S. law always prevails over inconsistent international law.

Not all international law is of such description, of course. There is no necessary conflict between U.S. law and international law. To the contrary, some international law is explicitly made part of U.S. law by the terms of the Constitution itself. Article VI of the Constitution, for example, makes treaties to which the United States is a party part of "the supreme Law of the Land." (3) Other provisions of the Constitution appear to authorize various government actors to use international law as a predicate for the exercise of certain powers or duties. But in such cases--just as with the case of international law norms that might conflict with U.S. law--the Constitution remains supreme in determining the content and force of international law for the United States.

The constitutional supremacy thesis has an important corollary: as a matter of U.S. constitutional law, the constitutional power to interpret, apply, and enforce international law for the United States is not possessed by, is not dependent upon, and can never authoritatively be exercised by actors outside the constitutionally recognized Article I, Article II, and Article III branches of the U.S. government. The power to interpret and apply international law for the United States is a power vested in officers of the U.S. government, not in any foreign or international body. As a matter of U.S. constitutional law, the United Nations does not and cannot authoritatively determine the content of international law for the United States. As a matter of U.S. constitutional law, the International Court of Justice (ICJ) does not and cannot authoritatively determine the content of international law for the United States. As a matter of U.S. constitutional law, no international body authoritatively determines the content of international law for the United States.

Rather, the power to interpret international law for the United States is a power distributed among the three branches of the U.S. government, in a manner determined by the Constitution's separation of powers. The Congress interprets and applies international law for purposes of exercising its legislative constitutional powers to define and punish offenses against "the Law of Nations," (4) thereby enacting (or declining to enact) legislation for carrying into execution treaties of the United States, and for purposes of exercising its autonomous constitutional judgment with respect to the decision whether or not to initiate ("declare") a state of war. (5) The President interprets and applies international law for purposes of exercising the Article II executive power to conduct the nation's foreign relations and the constitutional powers of the President as the nation's military Commander in Chief. And the courts interpret and apply international law for purposes of exercising their adjudicative constitutional powers with respect to lawsuits presenting questions of interpretation of treaties and other matters of international law.

These interpretive spheres overlap to some degree. But there are also areas of autonomous power for each branch. Each branch has a limited, exclusive power to determine the content of international law for purposes of its own powers. In accordance with the Constitution's scheme of separation of powers, none of the branches is literally bound by the views or actions of the others. And in accordance with the Constitution's exclusive assignment of U.S. lawmaking, law-executing, and law-adjudicating functions to actors designated by the Constitution, none of the branches is bound in any way by the views or actions of non-U.S. actors.

Part I of this Essay, to which I give the Clausewitzian subtitle "The Fog of International Law," comprehensively addresses the surprisingly elusive (to most modern international law scholars) question of the status of international law as a matter of U.S. law. Confusion about the force of international law within the U.S. legal order leads to further confusion and unclear thinking about who possesses the power to interpret and apply international law provisions and norms for the United States. I argue, first, that the Constitution mandates as a matter of U.S. domestic law the supremacy of the Constitution over international law in all respects; and, second, that in each major instance in which the Constitution incorporates international law as part of U.S. law, it retains the U.S. legislative, executive, and judicial power to determine--and revise--that content. The force of international law, for the United States, is a matter of U.S. law.

Part II, entitled "The Power To Say What International Law Is (for the United States)," addresses the interpretation of international law, for the United States, as an aspect of the Constitution's separation of powers. In this Section, I offer a detailed map of the U.S. constitutional power to interpret and apply international law.

Section II.A discusses Congress's power to interpret and apply international law in making U.S. law. The Congress, I submit, possesses exclusive constitutional power to determine the content of, and apply in the form of U.S. domestic criminal law, international law, as an aspect of its power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (6) In addition, Congress possesses substantial constitutional power to pass laws it fairly judges "necessary and proper" for executing the treaty power of the United States and, further, to enact laws contravening or superseding the requirements of such treaties as a matter of U.S. domestic law (pursuant to one or another of its enumerated legislative powers). (7) These legislative powers to some extent "bound" the President's power to interpret and apply international law. For example, the President has no constitutional power to prosecute or punish an asserted violation of international law except in conformity with Congress's legislative power. This does not, however, mean that Congress lacks power to delegate its authority, in accordance with constitutional standards concerning the permissible scope of such delegations (whatever these may be). Nor does it preclude the traditional view, long accepted by the courts (at least until recently (8)), that Congress, by authorizing war, by necessary implication authorizes the President to impose military punishment for violation of the law of war, in accordance with the President's interpretation thereof, against enemy combatants, as an incident of the President's wartime military powers as Commander in Chief.

Section II.B turns to executive power--the President's power--to interpret international law, as an aspect of the President's executive power over foreign affairs. The President possesses the constitutional power authoritatively to interpret and apply--and to terminate or suspend--treaties to which the United States is a party, for purposes of determining and conducting the nation's external relations with other nations, organizations, groups, and non-U.S. persons. The President also has the constitutional power to interpret and apply--or to disregard entirely--nontreaty customary international law norms, for the same purposes of executing the nation's foreign and external relations. Finally, the President possesses the exclusive constitutional power, as the military's Commander in Chief, to direct the conduct of the nation's military actions (where constitutionally authorized) and to interpret and apply international and domestic law relevant to those military actions. Significantly, however, the President possesses no constitutional power to make or rescind domestic U.S. law in connection with the exercise of any of these powers; nor does the President possess legitimate constitutional power to initiate war. These are powers of Congress, not of the President.

Section II.C discusses the judiciary's power to interpret and apply international law. My thesis here is that courts may interpret and apply treaties and statutes of the United States that touch on matters of foreign relations and international law in any "case or controversy" presented to them, the same as with any other matter of federal law. Such treaties and statutes are part of the law of the United States recognized by the Supremacy Clause of Article VI of the Constitution. Beyond this, courts exercising common law or admiralty court powers may interpret and apply customary international law, but only where no contrary written federal law (the Constitution, federal statutes, or U.S. treaties) applies. That is the better understanding of certain traditionally accepted but analytically loose canons of statutory interpretation, such as the Paquete Habana and the Charming Betsy canons, which in some of their formulations are misleading and even unsound.

Part III of the Essay considers the logically straightforward but occasionally dramatic implications of these propositions for several important contemporary issues of war, peace, prisoner detention, interrogation, and torture. First, nothing in international law constitutionally may constrain the exercise by the United States of the decision to engage in war (jus ad bellum). International law constitutionally may not require the United States to go to war; nor may international law constitutionally authorize the United States to go to war, in the sense of serving as a substitute for the U.S. constitutional requirements for deciding upon war (however those are most properly understood). The weight to be accorded principles of international law in this regard is committed to the constitutional judgment of U.S. actors.

Second, international law may not of its own force, or as interpreted by non-U.S, actors or bodies, constitutionally constrain the manner in which the U.S. wages war (jus in hello), including rules for the treatment and questioning of captured enemy persons, except insofar as those principles constitutionally are made part of U.S. domestic law, and even then only to the extent and in the manner determined by U.S. actors' interpretation of this U.S. domestic law. This is not to say that the policies embodied in international law norms may not, or should not, form important policy considerations for U.S. officials. They may, and often they should. It is to say only that those are policy considerations, not binding "law" within our constitutional regime.

The propositions of this Essay provide a new perspective on--and often a critique of--the flurry of Supreme Court decisions in the areas of war powers, foreign affairs, and international law that has followed in the aftermath of September 11, 2001: Hamdi v. Rumsfeld, (9) Rasul v. Bush, (10) Hamdan v. Rumsfeld, (11) and Boumediene v. Bush (12)--the war prisoners cases--and American Insurance Ass'n v. Garamendi, (13) Sosa v. Alvarez-Machain, (14) Medellin v. Dretke, (15) Sanchez-Llamas v. Oregon, (16) and Medellin v. Texas. (17) It also furnishes a perspective on--and to some extent a defense of--the controversial Department of Justice legal opinions concerning the (non)applicability of the Geneva Conventions and the (narrow) interpretation of the Convention Against Torture and Congress's criminal legislation implementing those treaties. (18)

I. THE FOG OF INTERNATIONAL LAW

Carl von Clausewitz famously referred to the "fog" of war as a metaphor for the inability to think clearly and sensibly in the midst of battle once the forces of war have been unleashed. (19) "Fog" is likewise a useful image for the phenomenon of unclear thinking about international law in contemporary legal and political discourse. Once the idea of international law has been unleashed, its rhetorical salience frequently seems to overtake careful thought.

What precisely is the force of international law as a matter of U.S. law, under the U.S. Constitution? How does it affect--does it affect--the U.S. constitutional law of war and foreign affairs powers? My contention is that international law is not binding law on the United States, and cannot be binding law except to the extent provided in the U.S. Constitution. That extent is very limited and subject to several important constitutional overrides--empowerments or restrictions that nearly always permit international law requirements to be superseded by contrary enactments or actions of U.S. governmental actors.

The result is that international law is primarily a political constraint on the exercise of U.S. power, not a true legal constraint; it is chiefly a policy consideration of international relations--of international politics. International law may be quite relevant in that sense. But it is largely irrelevant as a matter of U.S. law. While the legal regime of international law may consider international law supreme over the law of every nation, the U.S. Constitution does not.

It follows that, to the extent international law is thought to yield determinate commands or obligations in conflict with the U.S. Constitution's assignments of powers and rights, international law is, precisely to that extent, unconstitutional--practically by definition. In such cases, U.S. government actors must not--constitutionally speaking, may not--follow international law.

The argument for the supremacy of the Constitution over international law within the American legal regime is remarkably straightforward. Article VI provides that "It]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof," and federal treaties--about which I will say much more presently--are "the supreme Law of the Land." (20) For emphasis, the Supremacy Clause (or "Supreme Law Clause" (21)) adds the words, "and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (22) But the implication of the supremacy of federal law would be, in any event, that supreme federal law would bind those who exercise authority under the Federal Constitution and prevail over any "Thing" inconsistent with such law--not just state constitutional, statutory, or common law, but anything at all inconsistent with supreme federal law. (23) This would obviously include international law, or any other species of foreign law. The Constitution, and other federal law the Constitution designates as supreme, trumps any other source or body of law.

Moreover, again under Article VI, U.S. officials (both federal and state) swear an oath to uphold the U.S. Constitution and U.S. law, not international law. The Oath Clause states, in pertinent part: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution...." (24) This reinforces the effect of the Supreme Law Clause, by making the obligation to adhere to supreme federal law not simply a matter of abstract theory but also one of personal moral and constitutional obligation for all who would exercise any form of government authority under the U.S. constitutional regime. (The President is constitutionally required to swear a highly specific oath, which makes his personal constitutional duty to the Constitution yet clearer. (25)) Thus, where U.S. law and international law might be thought to conflict, U.S. officials--the President, the Congress, the federal courts, all state officials--are constitutionally required, by the document that confers or frames their powers, and by the oaths they have been constitutionally required to swear, to follow U.S. law and not international law.

To put the point as starkly and directly as possible: any President of the United States who would follow international law in preference to U.S. law would violate his (or her) oath of office in the most fundamental of ways. The President and all other federal and state officials must be loyal to the Constitution and U.S. law, and not to any foreign, external authority. Indeed, this is exactly the concern that motivated the Framers and influenced the drafting not only of the Oath Clauses of Article II and Article VI, but of various other provisions of the Constitution. These provisions include the natural-born citizen requirement concerning the President; the citizen-duration requirements for the President, senators, and representatives; the Foreign Emoluments (or "Foreign Princes") Clause; and arguably even the Title of Nobility Clauses. (26) At seemingly every turn, the Constitution is concerned with assuring the fidelity of U.S. government officials to the U.S. constitutional regime and to the supremacy of U.S. law that that regime prescribes. (27) For the Framers, that fidelity meant (and still means) not being governed by foreign law, foreign rulers, or undue foreign influence.

A certain measure of confusion on this point results from the fact that some of what constitutes "international law" within the regime of international law is also U.S. law, or may provide the basis for the exercise of U.S. constitutional powers, under the Constitution. In such cases (to which I turn presently) there is no intrinsic conflict between international law and the U.S. constitutional regime. But it is nonetheless important to keep the two spheres analytically distinct. Some international law is U.S. law, but some is not. And all international law that is U.S. law or is made into U.S. law must then be understood and applied as U.S. law, and not as external "international law." Its meaning is its U.S. law meaning, and its interpretation is committed to U.S. constitutional actors.

Let us consider, then, the three broad categories of international law in terms of their legal force within the U.S. constitutional regime: treaties to which the United States is a party, nontreaty executive agreements, and customary international law (CIL) norms and principles.

A. The Trouble with Treaties

Treaties of the United States are part of the "supreme Law of the Land," under the clear terms of Article VI. The Supreme Law Clause states that, after the Constitution and federal statutes, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." (28) And some extremely important treaties, central to the regime of international law and obviously highly relevant to the conduct of war, are explicitly part of U.S. law. These include, most prominently, the U.N. Charter, the Geneva Conventions, the Convention Against Torture, and the statute of the International Court of Justice. These treaties are part of supreme federal law, by virtue of their enactment as such pursuant to the constitutional process for treatymaking specified in Article II of the Constitution: the President has power, "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." (29)

But it is important to keep in mind that when international treaties become domestic law, they are U.S. law. They may--they obviously do--also have legal force as international law and consequently give rise to obligations within the legal regime of international law. But the force and the interpretation they have as law within those two different legal regimes--the U.S. constitutional regime and the regime of international law--may be quite different. There are important constitutional limitations on the legal force of treaties as a matter of U.S. law. I offer four simple but important points about treaties' status under the U.S. Constitution.

First, and most obviously, a treaty may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps treaties. Just as the Constitution prevails over any inconsistent statute enacted by Congress (30) or any inconsistent executive act taken by the President (31) or (in theory at least) any inconsistent decision of the judiciary, (32) the Constitution prevails over any provision contained in a federal treaty that is inconsistent with a rule specified in the text of the Constitution.

The principle is obvious enough in the abstract; it is when one thinks about what this means in practice that the power of this principle begins to become clear. It follows, for example, that a treaty cannot deprive Congress, the President, or the courts of any of their constitutional powers. Nor can a treaty override constitutional rights of U.S. citizens. (A treaty provision cannot impair First Amendment or Fifth Amendment rights, for example.) Thus, a treaty cannot override or impair Congress's constitutional power to declare war or the President's constitutional executive power and military power as Commander in Chief (whatever these are understood to be). (33)

Thus, the U.N. Treaty, for instance, cannot override Congress's power to declare war. It may not commit the United States to military action unless Congress authorizes it. And it may not bar U.S. military action, as a matter of U.S. constitutional law, if Congress has authorized it. (34) In terms of U.S. domestic constitutional authority with respect to the decision to go to war, the U.N. Treaty--which by its terms bans war and purports to limit treaty parties' military actions (35)--is of essentially no consequence as a legal restriction on what U.S. government officials may do in this regard. So too with the Geneva Conventions' provisions concerning the conduct of war, about which I will have more to say below. (36) If the President's conduct of military operations (including matters concerning the capture, detention, interrogation, and military punishment of lawful and unlawful enemy combatants) otherwise falls within his exclusive constitutional power as Commander in Chief of the nation's military, the provisions of the Geneva Conventions (and other treaties) cannot restrict those powers. (37)

The second limitation on the force of treaties flows from the first. Just as treaties may never trump the Constitution, treaties may always be trumped by a subsequent statute. This is true whether one accepts the "last-in-time" rule with respect to the relative force of statutes and treaties (the traditional view) or the hierarchical rule that statutes always trump treaties. (38) Under the traditional view that statutes and treaties possess equal status as U.S. law--both are subordinate to the Constitution but each is equal to the other--a later-enacted statute trumps an earlier-enacted treaty. So, as noted in the preceding paragraph, if Congress declares war in a circumstance inconsistent with a U.S. treaty (like the U.N. Treaty), the later declaration of war trumps the treaty obligation, as a matter of U.S. domestic constitutional law. Indeed, this applies to any species of legislative enactment within the scope of Congress's constitutional powers.

To make the point concrete: if the best reading of Congress's September 18, 2001, Authorization for Use of Military Force (AUMF) is that it authorizes war making in circumstances inconsistent with the U.N. Charter, the September 18 joint resolution prevails over the U.N. Charter, at least as a matter of U.S. constitutional law. (39) Similarly, if Congress passes a Military Commissions Act of 2006 (MCA) that contradicts, or interprets narrowly, the Geneva Conventions or the Convention Against Torture, the MCA prevails over the Conventions as a matter of U.S. law. (40)

The point may be stated more generally. It follows, I submit, from the fact that a treaty may not restrict a constitutional power, that the subsequent exercise of a constitutional power supersedes, in legal effect, anything to the contrary in the treaty. (This has important specific implications for the exercise of presidential powers, as well as congressional powers, as I shall explain presently.)

Third, treaties are often not self-executing under U.S. domestic law, but frequently require implementing legislation that might narrow the treaties' impact as a matter of U.S. law. (41) Thus, while treaties may serve as an alternative means of enacting binding U.S. domestic law norms, they more frequently create only international obligations. Just as domestic law may supersede or repudiate such obligations, it may instantiate them as federal statutory commands in different forms. These commands may be narrower than the international law obligation. Or the international law obligation might not be given force as binding domestic law at all.

Fourth, and perhaps most importantly, the President possesses, as an aspect of the "executive Power" to direct and conduct the nation's external relations, the power to interpret, apply, suspend, supersede, or terminate U.S. treaty obligations as they concern our relationship with other nations. This remains a controversial point, and no specific Supreme Court decision has embraced it to date, (42) but it follows logically from the principle that treaties may not trump the Constitution. Simply put, if the President's Article II executive power includes the power over foreign affairs (except where a specific power is assigned to Congress), (43) a treaty may not extinguish or limit such constitutional power; accordingly, the President's subsequent (later-in-time) exercise of that constitutional power over foreign affairs supersedes in legal effect anything to the contrary in the treaty.

How does this presidential treaty-supersession power play out in practice, and how far does it extend? A complete exposition would be an article of its own, but the main outlines can be sketched briskly: when the President of the United States terminates a treaty pursuant to his constitutional powers under Article II, he does not literally repeal a U.S. domestic law enactment. If a treaty is self-executing, or if it has been implemented by congressional legislation, the President's foreign affairs power does not rescind its domestic law effect. That result can only he accomplished by subsequent legislation (or by a subsequent, repealing self-executing treaty made in accordance with Article II's specified process). As a matter of U.S. constitutional law, the President's foreign affairs power can terminate only the foreign affairs obligation of the treaty. (Once again, it is possible that the regime of international law might regard such presidential actions as a breach or violation of the treaty, not its lawful termination. My point here is simply that, within the regime of the U.S. Constitution, the President's action is a lawful, effective exercise of the President's constitutional powers to alter the nation's foreign relations commitments on the international plane.)

Does the President's foreign affairs power include the power to take lesser actions--that is, less dramatic and absolute than outright treaty termination--with respect to the continuing legal force of treaties? The greater power does not always include the lesser, of course. But here it does: the President's foreign affairs power is not an all-or-nothing blunt instrument, but fairly admits of application in finer gradations. The President may decide that an existing treaty's requirements should be abandoned in part and followed in part--that the United States's current foreign policy interests (as determined by the President) do not necessitate repudiation of the entirety of a treaty's obligations. Applying the presidential equivalent of a "severability" determination, the President may determine that as a matter of the United States's relations with other nations, it is practical and sensible to leave as much of the treaty in operation as is fairly possible, discarding only what he judges must be discarded and repudiating nothing more. (44) If this is correct, it means that the President may repudiate a treaty in whole or in part.

Taking the analysis one step further--if the treaty-supersession power may be exercised in fine, rather than as an indivisible lump, it should follow that the President may determine that the United States's national foreign policy interests trump a treaty's obligations as applied to a particular case (so to speak) but do not require the conclusion that a treaty must be repudiated in its entirety, once and for all. Just as courts sometimes may determine that a law is not unconstitutional on its face but may be unconstitutional as applied, the President may determine that a treaty should remain legally operative on its face but not as applied. (Again, this is only with respect to the United States's foreign relations obligations as a matter of U.S. domestic constitutional law.) Put rather more bluntly--undiplomatically, as it were--the President may determine that a treaty should not be followed in a particular situation, where contrary to the nation's interests.

One more step: if the President may decide that a treaty itself ("on its face") is not at an end but is simply not to be followed in a particular situation for a particular foreign policy reason ("as applied"), it follows that the President (or his or her successor) subsequently may restore the treaty's application if the President judges that circumstances have changed. There exists now a new as-applied situation and the President may determine that the treaty now applies. Put more colloquially and straightforwardly, the President possesses a practical constitutional power to suspend the obligations of a treaty.

Note finally that all of this presupposes a presidential power of treaty interpretation. To determine that a treaty should be terminated outright, abrogated in part, or suspended in its operation in a particular case or at a particular time, the President obviously must first determine what the treaty's terms mean. The President (with the assistance of subordinate executive branch officials) interprets the treaty for purposes of determining its legal effect and the desirability and form of the actions that the executive branch will take with respect to that treaty in the exercise of the President's foreign affairs power. That interpretation is not binding on the other branches of the U.S. government, of course--just as the President's exercise of his constitutional foreign affairs powers is not binding on the conduct of the other branches of the national government, within the U.S. constitutional scheme of separation of powers. But neither are the other branches' interpretations of the treaty binding on the President. (I shall have more to say about this in Part II, below.)

The President thus may decide, in good faith, that the best understanding of a treaty is that it does not in fact impose a treaty-law constraint on the United States, in opposition to the President's …

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Publication information: Article title: The Constitutional Power to Interpret International Law. Contributors: Paulsen, Michael Stokes - Author. Journal title: The Yale Law Journal. Volume: 118. Issue: 8 Publication date: June 2009. Page number: 1762+. © 2009 Yale University, School of Law. COPYRIGHT 2009 Gale Group.

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