October 5, 2007
Taking Care of Treaties
George Washington University law prof Edward T. Swaine has deposited Taking Care of Treaties in SSRN. Here's the abstract:
There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope with breaches, accordingly, risks distorting the positive law or vesting the President with a potentially boundless authority – or, in the alternative, risks a recurring gap between our international obligations and our domestic law.
The Take Care Clause affords a surprisingly well-tailored solution. Take care authority has been neglected in recent discourse, and not without reason. On the one hand, it is not obvious that it encompasses treaties, or licenses presidential authority beyond the capacity to ensure compliance within the executive branch; on the other hand, it smacks of unbridled executive power. These objections can be met. As the Article explains, the Take Care Clause includes treaties, including – critically – some treaties conventionally labeled as non-self-executing, and permits presidential authority beyond self-regulation. The text, case law, and practice further support the idea that this authority may be divested by the Constitution, by treaty, or by statute, and must satisfy additional criteria that guard against vesting the president with plenary lawmaking authority.
The Article explains how this theory applies to potential controversies involving compliance with the decisions of international tribunals (like those of the International Court of Justice, or arising under the WTO or the Law of the Sea Convention), legislative decisions by institutions like the Security Council (such as a resolution enabling war crime proceedings against former U.S. officials), and finally treaties that afford no recourse to international mechanisms. The result is a theory that reinforces congressional supremacy without requiring that treaty obligations founder upon it.
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