Academic journal article Brigham Young University Law Review

The Death of Deference and the Domestication of Treaty Law

Academic journal article Brigham Young University Law Review

The Death of Deference and the Domestication of Treaty Law

Article excerpt

I. INTRODUCTION

According to Restatement (Third) of the Foreign Relations Law of the United States, "Courts in the United States have final authority to interpret an international agreement for the purposes of applying it as law in the United States, but will give great weight to an interpretation made by the executive branch."1 Such "great weight" or deference reflects a common wisdom that the president plays a special constitutional role with regard to treaties. The president negotiates treaty terms and is thought to have special knowledge as to their meaning to the parties. The president knows what interpretations will best forward U.S. interests in the world. The president directs foreign relations with the United States' treaty counterparties and has insight into both how they interpret these provisions and how they might react to various interpretations adopted by the United States. And it is the president and the executive branch that deal with the fallout from any U.S. interpretation with which other treaty parties disagree. In these regards, deference to the executive in treaty interpretation fits within a broader picture of deference to the executive in U.S. foreign relations law more generally.2 According to conventional wisdom, dealing with foreign states requires special expertise, discretion, flexibility, and speed that militate in favor of presidential dominance over foreign relations and special forbearance to the executive in interpreting and applying foreign relations law.3 When it comes to foreign relations, "Let the president do his job" becomes a common legal refrain.

But recent cases question whether this picture still reflects the reality of foreign relations law and whether the Restatement's assessment is still accurate. In response to the government's interpretation of a treaty in one case, the supreme Court responded simply: "That reasoning is erroneous."4 In another, the Court explained that, "while we respect the Government's views about the proper interpretation of treaties . . . we have been unable to find any other authority or precedent"5 suggesting their view is correct. And during oral arguments in a third treaty-interpretation case, the Solicitor General was asked by a Justice, "[I]s there any possibility that there is any other country in the world that has the slightest interest in how the United States or any of its subdivisions deals with the particular situation that's involved in this case?"6 At least in these cases, the Court seems less than deferential to the executive branch's views. Whatever weight the Court is giving them, it certainly seems less than "great."7

At the same time, the Court seems to be domesticating the questions presented in treaty cases. Rather than focusing on the treaty and what its terms might mean in relations between the United States and others, the Court has been turning the question inward, focusing on implementing legislation, congressional intent, and ordinary methods of statutory interpretation. The effect of this trend is to reinforce the trend away from deference; by presenting the question as one of domestic lawmaking rather than of foreign relations, the Court disintegrates the arguments for executive interpretative primacy, while underlining arguments for the Court's own.

This reasoning from recent treaty cases, while seemingly out of step with prior practice and the Restatement (Third), fits well with broader trends in foreign relations law jurisprudence from the United States Supreme Court headed by Chief Justice John Roberts. Elsewhere,8 I have argued that (over the past ten years) the Roberts Court has been methodically whittling away the deference it traditionally granted to political branches in foreign relations by: (1) tightening its control over treaty interpretation in cases like Hamdan v. Rumsfeld,9 Bond v. United States,10 and BG Group, PLC v. Argentina;11 (2) limiting the president's ability to override state laws in Medellín v. …

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