Treaties and the Constitution

1
Treaties and the Constitution

• February 18

2
Missouri v. Holland

• Whats the main holding of this case?
• Be prepared to articulate the Courts rationale
  in support of that holding.
  
• Did the Court reach the correct result?
• In light of Missouri, are there any
  federalism-based limits on the treaty power?

3
Missouri v. Holland (cont.)

• Note 1, pg. 193, discusses Reid v. Covert. Is
  Reid consistent with Missouri? Why or why not?
  
• Can the federal government accomplish by treaty
  what it could not accomplish by statute (due to
  federalism limits on Article I)?
  
• Does this make sense?

4
Crosby v. NFTC

• The Court held that the Mass. Burma law was an
  obstacle to the . . . Execution of the full
  purposes . . . of Congress. (pg. 197)
  
• How did the state law interfere with operation of
  the federal law?
  
• Is that a good reason for invalidating the state
  law?
  
• Does the Supremacy Clause require invalidation of
  the state law in these circumstances?

5
Crosby v. NFTC

• Suppose the federal policy was not a law
  enacted by Congress, but merely a policy
  adopted by the President.
  
• Would the Court have reached the same result?
• Should it reach the same result?
• Consider note 2, pg. 201-02

6
Whitney v. Robertson

• Note 1, pg. 203-04, raises three questions.
• Be prepared to address those three questions in
  class.

7
U.S. v. Belmont

• The agreement at issue here is an executive
  agreement i.e., a treaty that was never
  approved by the Senate.
  
• The Court says that exec agmts are supreme over
  state law in the same way that treaties approved
  by the Senate are supreme over state law.
  
• Does this make sense?
• Why or why not?

8
U.S. v. Belmont

• Is there something special about the
  Roosevelt-Litvinov agreement that distinguishes
  it from other executive agreements?
  
• Or does the holding in Belmont extend to all
  executive agreements?
  
• In light of Missouri, Crosby, and Belmont, is
  there any role for the states in foreign affairs?

9
U.S. v. Curtiss-Wright

• Justice Sutherland quotes John Marshall for the
  proposition that The President is the sole organ
  of the nation in its external relations. (pg.
  211)
• Is this correct? What does this mean?
• Does it mean that Congress has no role in foreign
  affairs?
  
• Are there limits on executive power in foreign
  affairs?

10
U.S. v. Curtiss-Wright (cont.)

• Justice Sutherland says the investment of the
  federal govt with the powers of external
  sovereignty did not depend upon the affirmative
  grants of the Constitution. (pg. 210)
• Is this right?
• Does this mean that the text of the Constitution
  is irrelevant when were dealing with foreign
  affairs?

11
Dames Moore v. Regan

• What, precisely, is the sequence of facts that
  gives rise to this case?
  
• What, precisely, are the orders issued by the
  President that are being challenged here.
  
• In Part III of his opinion, Justice Rehnquist
  concluded that certain Presidential actions were
  specifically authorized by IEEPA.
  
• Which actions were those?

12
Dames Moore (Cont.)

• In Part IV of his opinion, Rehnquist addresses
  Presidential action that was not specifically
  authorized by Congress.
  
• What Presidential action is at issue in Part IV?
• How does Rehnquist justify that action in the
  absence of Congressional authorization?
  
• Are you persuaded by his rationale? Why or why
  not?
  
• Be prepared to discuss the questions raised in
  notes 3 and 4, pg. 223.

13
Self-Executing Treaties

• February 19

14
Quick Review

• Dames Moore
• Youngstown
• Curtiss-Wright
• Belmont
• Whitney
• Missouri v. Holland
• Crosby

15
Self-Execution

• Standard doctrine
• A self-executing treaty does not require
  implementing legislation. A non-self-executing
  treaty does require implementing legislation.
  
• A treaty is self-executing (or not) if the treaty
  makers intended it to be self-executing (or not)
  
• Two ambiguities
• Requires implementing legislation for what?
• How, exactly, does intent matter?

16
Self-Execution

• Requires implementing legislation for what?
• Primary to give treaty status of law in
  domestic legal system
  
• Remedial to authorize judicial enforcement of
  treaty
  
• How does intent matter
• Indirect Intent shapes international law
  directly, and shapes domestic law indirectly
  
• Direct Intent shapes domestic law directly

17
Self-Execution