Discretion, Delegation, and Defining in the Constitution's Law of Nations Clause

By Kontorovich, Eugene | Northwestern University Law Review, October 1, 2012 | Go to article overview

Discretion, Delegation, and Defining in the Constitution's Law of Nations Clause


Kontorovich, Eugene, Northwestern University Law Review


ABSTRACT-Never in the nation's history has the scope and meaning of Congress's power to "define and punish . . . Offences against the Law of Nations" mattered as much. The once-obscure power has in recent years been exercised in broad and controversial ways, ranging from the Alien Tort Statute (ATS) to military commission trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clause and indeed raise common constitutional questions. First, can Congress "define" offenses that clearly already exist in international law, or does it have discretion to codify debatable or even nonexistent international law norms? Second, what happens to this discretion when it delegates the power to a coordinate branch?

This Article shows that the Offenses Clause allows Congress only to "define"-to specify the elements and incidents of-offenses already created by customary international law. It does not allow Congress to create entirely new offenses independent of preexisting international law. At the same time, the Framers understood international law to be vague and intertwined with foreign policy considerations. Thus, courts reviewing congressional definitions should give them considerable deference. Moreover, whatever discretion Congress has in defining offenses disappears when it broadly delegates that power to another branch, as it has in the ATS. The Supreme Court suggested a similar standard for ATS causes of action in Sosa v. Alvarez-Machain. Appreciating the role of delegation in the ATS shows that the limits on offenses that can be litigated under the statute have a constitutional dimension.

The Article develops the original understanding of the Offenses Clause-particularly important given the lack of any judicial decisions on it in the nation's first century. It draws on previously unexplored sources, such as early cases about the meaning of the "define" power in the cognate context of "piracy and felonies," legislation by early Congresses, and discussions by Framers like Madison and others.

INTRODUCTION

Never in the nation's history-at least not since the Neutrality and Alien Acts debacles of the 1790s-has the scope and meaning of Congress's power to "define and punish . . . Offences against the Law of Nations"1 mattered as much. The once-obscure and seldom-used power2 has in recent years been exercised in controversial ways, ranging from civil human rights litigation under the Alien Tort Statute (ATS), to military commission trials in Guantanamo Bay, to the historic prosecutions being conducted against Somali pirates in federal courts. Yet it has not been recognized that these issues all raise similar constitutional questions under the Offenses Clause.

This Article sketches the limits of Congress's power to define offenses. Furthermore, it examines the reach of the power when Congress delegates authority to define offenses to other branches. The former analysis has significance for the current military commission litigation, where the defendants argue that the crimes they are charged with fall outside international law and thus Congress's define power. The delegation issue has even greater implications for the ATS. In the statute's interpretation by the Supreme Court in Sosa v. Alvarez-Machain, the power of federal courts to define international law causes of action themselves was the central issue.3 The Supreme Court is poised to significantly revisit the ATS in Kiobel v. Royal Dutch Petroleum Co., an effort that should be informed by an awareness of the constitutional backdrop to the statute.4

The Offenses Clause's new relevance comes in the wake of unprecedented, yet unheralded, developments in Offenses Clause jurisprudence. Hamdan v. Rumsfeld5 was the first case ever to find the government exceeded its Offenses Clause powers.6 This historic aspect of the case has been overlooked (including by the Supreme Court itself), perhaps because the case was mostly noted for its more newsworthy rebuke of the Bush Administration's Guantanamo policies. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Discretion, Delegation, and Defining in the Constitution's Law of Nations Clause
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.