Academic journal article Harvard Law Review

The Offences Clause after Sosa V. Alvarez-Machain

Academic journal article Harvard Law Review

The Offences Clause after Sosa V. Alvarez-Machain

Article excerpt

The Supreme Court's ruling last Term in Sosa v. Alvarez-Machain (1) hardly settled the manifold and perplexing debate about the place of international law in U.S. domestic law. But Sosa at least affirmed that federal courts can recognize individual rights to sue for violations of customary international law, (2) the branch of international law that emerges out of common norms of state behavior. A step past its core holding, Sosa may also offer some clues about another lingering mystery of foreign relations law--the nature and scope of Congress's power to give effect to international law through its constitutional power to "define and punish ... Offences against the Law of Nations." (3)

The Offences Clause--the only explicit reference to non-treaty-based international law in the Constitution--is arguably essential to understanding how the Framers of the Constitution viewed international law and the foreign affairs powers of the federal government. Yet the clause has attracted remarkably little consideration from scholars. (4) The lack of attention isn't attributable to a lack of disagreement--different commentators have operated from considerably different understandings of Congress's Offences Clause power. They have differed on such fundamental issues as whether the power authorizes civil as well as criminal regulation (5) and what combination of congressional and international approval of an international law rule is enough to support an exercise of the power. (6)

The courts may eventually find it necessary to resolve the uncertainties that surround the Offences Clause power. Continuous change in the landscape of international relations and the blurring of the boundary between domestic and foreign affairs are certain to fuel debate about the scope of the federal government's foreign relations powers. Meanwhile, the Supreme Court is examining Congress's exercise of its enumerated powers more closely and is looking more harshly on federal legislation that appears to infringe on the states' dominion. (7) The Supreme Court may one day train its skeptical eye on a law designed to combat international human rights violations, terrorism, or environmental harm under Congress's Offences Clause power.

This Note explores what Sosa implies about the shape of the Offences Clause power and proposes a test for evaluating whether a law falls within the scope of what the Offences Clause allows. The federal courts' power to craft federal common law can only survive in the shelter and shade of the Constitution and federal legislation: Congress can act to change any rule of federal common law that is not directly mandated by the Constitution. Since Congress can only modify federal common law by exercising its legislative power, Sosa's endorsement of judicial power to establish individual rights to sue for violations of international law implies the existence of a corresponding legislative power of similar character and at least equal scope. The Offences Clause is the logical source of that legislative power. Sosa thus favors interpreting the Offences Clause as granting Congress expansive authority to mold international law into federal rights and remedies in both the civil and criminal spheres.

A test for evaluating congressional exercises of Offences Clause power must recognize that Congress itself plays a role in shaping international law and determining which rules of international law have effect in domestic law. This Note proposes a test that accords adequate respect to Congress's power to command compliance with international norms yet remains true to the bedrock principle that the federal government is a government of limited power. Under the proposed test, a court examining whether a rule of international law could support Offences Clause legislation would undertake two inquiries: a detached evaluation of the level of international acceptance of the rule and an examination of whether Congress considered the United States bound by the rule. …

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