The Abiding Exceptionalism of Foreign Relations Doctrine
In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decision-making in the foreign affairs area in previous years. But foreign affairs doctrine remains resolutely exceptionalist in some areas beyond those identified by the authors as reflecting the “unfinished business” of normalization. When these additional manifestations of exceptionalism are added to the ones the authors have identified, the claim that exceptionalism is now exceptional seems overstated.Part I of this response discusses the authors’ definition of exceptionalism and normalization, which the authors describe as “an independent contribution” of the article, “regardless of whether one agrees with [its] broader normalization thesis.” As noted, their definition collapses the question of normalization with the proper interpretation of the Constitution.Part II challenges the authors’ characterization of some doctrines or decisions as exceptionalist. The authors cite Missouri v. Holland as an example of foreign relations exceptionalism. But the holding of Missouri v. Holland is supported by the constitutional text and is consistent with original intent and the case law preceding the decision.Part III focuses on the judicial enforcement of treaties. As I have written at some length in these pages, the Supremacy Clause establishes that treaties are to be enforceable in the courts in the same circumstances as statutes. Yet the courts have engrafted onto the Supremacy Clause a distinction between self-executing treaties and non-self-executing treaties, with only the latter being judicially enforceable.
Things We Do with Presumptions: Reflections on Kiobel v. Royal Dutch Petroleum
The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute’s text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. But, in Morrison v. National Australia Bank Ltd., the Court recognized that “context” can be taken into account as well. And, in Kiobel, the Court recognized that a statute’s “historical background” might also “overcome” the presumption. These methods of rebutting or overcoming the presumption are discussed in part II.When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. Applying the presumption in such a case, the Court explained, requires identification of “the ‘focus’ of congressional concern” under the relevant statute. If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute’s applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. How to satisfy the presumption is discussed in part III.The Court in Kiobel may have recognized a fourth thing that might be done with the presumption against extraterritoriality: the presumption might in certain circumstances be displaced. The majority used this term in the final paragraph of its opinion, a paragraph that has generated much debate about what sorts of questions the Court left open in Kiobel. The Court wrote that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” The Court may have been using the term to refer to the issue I have refer to as the “satisfying” of the presumption. There is also some basis, however, for understanding the Court to have left open the possibility that the presumption might be inapplicable or rebutted with respect to some claims brought under the ATS for violations of customary international law. What the Court meant by “displacing” the presumption is the subject of part IV.
The Supremacy Clause as a Constraint on Federal Power
Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal statutes alleged to exceed Congress' enumerated powers. The Supremacy Clause establishes a rule of decision for courts adjudicating the rights and duties of parties under both state and federal law. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. The Clause, in turn, designates as the supreme Law of the Land only those Laws of the United States . . . made in Pursuance of the Constitution. If a federal statute satisfies this condition, courts must apply the statute notwithstanding contrary state law. If the federal statute fails this condition, however, it does not qualify as the supreme Law of the Land and courts remain free to apply state law. Thus, in order to apply the Supremacy Clause, courts must necessarily consider and resolve challenges to the constitutionality of federal statutes. The text, history, and structure of the Constitution confirm that the Supremacy Clause authorizes judicial review of federal statutes alleged to exceed the scope of federal power. The Founders considered three alternative mechanisms for resolving conflicts between state and federal law: coercive military force, congressional power to negative state laws, and adjudication under the Supremacy Clause. The decision to enlist courts - rather than Congress or the President - indicates that the Founders preferred to treat conflicts between state and federal law as judicial, rather than political questions. In addition, by expressly conditioning the supremacy of federal statutes on their constitutionality, the Supremacy Clause reassured the states that courts (both federal and state) would keep the federal government within the bounds of its assigned powers. Thus, in effect, the Clause reserves all remaining powers to the states, or to the people. These conclusions find support in the Supreme Court's early invocation of the Supremacy Clause to explain judicial review of federal statutes in cases like McCulloch v. Maryland and Gibbons v. Ogden.