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.
The Three Tiers of Federal Law
The Supremacy Clause tells us that there are three kinds of federal law: the Constitution, statutes, and treaties. We know that the Constitution trumps both statutes and treaties in the event of conflict. What about the case of statutes versus treaties in the event of conflict between the two? This is a critical question of constitutional law today. As a consequence of tremendous globalization, conflicts between an ever-growing number of statutes and treaties are multiplying. Indeed, there is probably no treaty of any significance that can be made today that does not interfere with some existing federal statute. This Article explores the constitutional relationship between statutes and treaties. According to the Supreme Court's long-standing doctrine, statutes and treaties are created equal and the one last-in-time will control the other in the event of conflict. This rule is poorly grounded as a matter of constitutional law. This Article argues that this last-in-time rule is unconstitutional. The Constitution establishes three tiers of federal law. Statutes are superior to treaties, irrespective of time. This insight has important implications for a long-standing debate among foreign affairs scholars, waged most recently by Professors Yoo, Flaherty, and Vazquez in the Columbia Law Review, as to when treaties must be non-self-executing - that is, when implementing statutes are required in order for the treaty to have the force of domestic law. The conventional wisdom is that such statutes are required only when treaties touch certain subjects within Congress's ostensibly exclusive legislative powers (e.g., appropriations). I refer to this orthodoxy, defended by Professors Flaherty and Vazquez, as the total self-execution thesis. This Article argues that treaties must also be non-self-executing when treaties conflict with existing statutes - an important departure from the conventional wisdom. In this case, Congress has the power to amend (or not) existing statutes so as to conform to the treaty and give the treaty effect as a matter of domestic law. This is a necessary consequence of the lexical priority of the three tiers of federal law. I refer to this view as the partial non-self execution thesis. In addition, I argue that treaties may be self-executing even when they touch subjects within Congress's legislative powers, other than those powers which are properly understood as exclusive vis-a-vis the treaty-making power. This is consistent with the conventional wisdom, but directly opposed to Professor Yoo's view that all treaties touching subjects within Congress's legislative powers must be non-self-executing. Because almost all treaties touch subjects within the federal law-making power, non-self-executing treaties become the rule and self-executing treaties the exception. I refer to this view, defended by Professor Yoo, as the total non-self execution thesis. Thus, proponents of the total self-execution thesis and of the total non-self-execution thesis simply go too far. The three tiers of federal law thesis and the partial non-self execution thesis are two sides of the same coin. This thesis best coheres with both the Constitution's original meaning as well as our constitutional experience.
Translating Federalism: United States v Lopez
I have hardly ever met one of the common people in America who did not surprisingly and easily perceive which obligations derived from a law of Congress and which were based on the laws of his state and who, having distinguished the matters falling within the general prerogatives of the Union from those suitable to the local legislature, could not indicate the point where the competence of the federal courts commences and that of the state courts ends.'