Download Handout 4 – Act of State

Foreign Affairs & the Constitution – Prof. Young
Fall 2004
TABLE OF CONTENTS
1 – INTRODUCTION AND THE NEUTRALITY CONTROVERSY ................................................................................. 3
2 – THE NATURE OF THE FOREIGN AFFAIRS POWERS .......................................................................................... 6
3 – THE JUSTICIABILITY DOCTRINES .................................................................................................................. 10
4 – ACT OF STATE ............................................................................................................................................... 14
5 – EXECUTIVE DEFERENCE, FORUM NON CONVENIENS, AND INTERNATIONAL COMITY ................................. 16
6 – CONGRESSIONAL AND PRESIDENTIAL AUTHORITY....................................................................................... 18
7 – THE STEEL SEIZURE CASE ............................................................................................................................ 21
8 – CONGRESSIONAL REGULATION OF FOREIGN AFFAIRS POWERS ................................................................... 24
9 – WAR POWERS: HISTORY AND CONGRESSIONAL POWER ............................................................................. 26
10 – PRESIDENTIAL WAR POWERS ..................................................................................................................... 29
11 – THE WAR POWERS RESOLUTION AND COLLECTIVE USES OF FORCE ......................................................... 31
12 – MILITARY COMMISSIONS ............................................................................................................................ 34
13 – CIVIL LIBERTIES IN WARTIME: PART 1 ...................................................................................................... 36
14 – CIVIL LIBERTIES IN WARTIME, PART 2 ....................................................................................................... 38
15 – MILITARY COMMISSIONS (CONT.) AND THE PATRIOT ACT ......................................................................... 43
16 – PREEMPTION AND FOREIGN AFFAIRS STATUTES ........................................................................................ 45
17 – TREATY AND DORMANT FOREIGN AFFAIRS PREEMPTION .......................................................................... 48
18 – TREATIES, SELF-EXECUTION, AND THE LAST-IN-TIME RULE ..................................................................... 50
19 – DELEGATION, FEDERALISM AND CONDITIONAL CONSENT ......................................................................... 52
20 – EXECUTIVE AGREEMENTS AND SUPRANATIONAL DELEGATIONS............................................................... 55
21 – CUSTOMARY INTERNATIONAL LAW............................................................................................................ 57
Cases
Alfred Dunhill of London, Inc. v. Republic of Cuba ............................................................................................................15
American Insurance Assn. v. Garamendi .............................................................................................................................48
Baker v. Carr........................................................................................................................................................................13
Banco Nacional de Cuba v. Sabbatino .......................................................................................................................... 14, 15
Barclays Bank v. Franchise Tax Board of California ..........................................................................................................48
Bas v. Tingy ..........................................................................................................................................................................27
Brandenburg v. Ohio ............................................................................................................................................................36
Breard v. Greene ..................................................................................................................................................................17
Buttfield v. Stranahan ..........................................................................................................................................................19
Campbell v. Clinton .............................................................................................................................................................32
Carter v. Carter Coal Co. ......................................................................................................................................................8
Chevron USA v. Natural Resources Defense Council, Inc. ............................................................................................ 13, 16
Chinese Exclusion Case (Chae Chan Ping v. United States) .................................................................................................8
Christopher v. Harbury ........................................................................................................................................................23
Cook v. United States ...........................................................................................................................................................50
Crosby v. Nat’l Foreign Trade Council ............................................................................................................................... 45
Dames & Moore v. Regan ....................................................................................................................................................22
De Canas v. Bica ..................................................................................................................................................................45
Dellums v. Bush ....................................................................................................................................................................28
Demore v. Hyung Joon Kim .................................................................................................................................................20
Dept. of Navy v. Egan ..........................................................................................................................................................22
Durand v. Hollins .................................................................................................................................................................30
Edwards v. Carter ................................................................................................................................................................ 51
El Al Israel Airlines v. Tseng ...............................................................................................................................................47
Erie Railroad v. Tompkins .............................................................................................................................................14, 57
Ex Parte Merryman ................................................................................................................................................................7
Ex Parte Milligan .................................................................................................................................................................34
Ex Parte Quirin ....................................................................................................................................................................34
Filartiga v. Pena-Irala .........................................................................................................................................................56
First National City Bank v. Banco Nacional de Cuba .........................................................................................................15
Fong Yue Ting v. United States ............................................................................................................................................20
Foster v. Neilson ..................................................................................................................................................................49
Frolova v. Union of Soviet Socialist Republics ....................................................................................................................49
Goldwater v. Carter .............................................................................................................................................................13
Haig v. Agee .........................................................................................................................................................................22
Hamdan v. Rumsfeld ............................................................................................................................................................42
Hamdi v. Rumsfeld ............................................................................................................................................................... 39
Hines v. Davidowitz .............................................................................................................................................................45
Hirabayashi v. United States................................................................................................................................................38
INS v. Chadha ......................................................................................................................................................................24
INS v. St. Cyr ..................................................................................................................................................................20, 34
Japan Whaling Ass’n. v. American Cetacean Soc’y ............................................................................................................13
John Doe v. Bush .................................................................................................................................................................29
Johnson v. Eisentrager .........................................................................................................................................................40
Klaxon Co. v. Stentor Elec. Mgf. Co. ...................................................................................................................................14
Korematsu v. United States ............................................................................................................................................38, 39
Little v. Barreme...................................................................................................................................................................29
Marbury v. Madison .............................................................................................................................................................12
Mathews v. Eldridge.............................................................................................................................................................39
Raines v. Byrd ......................................................................................................................................................................11
Rasul v. Bush ........................................................................................................................................................................40
Regan v. Wald ......................................................................................................................................................................22
Rumsfeld v. Padilla ..............................................................................................................................................................39
The Paquete Habana ............................................................................................................................................................56
The Prize Cases ....................................................................................................................................................................30
Underhill v. Hernandez ........................................................................................................................................................14
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United States v. Arjona ........................................................................................................................................................19
United States v. Belmont ......................................................................................................................................................55
United States v. Curtiss-Wright Export Corp. ........................................................................................................................8
United States v. Locke ..........................................................................................................................................................45
United States v. Lombera-Camorlinga .................................................................................................................................16
United States v. Postal .........................................................................................................................................................49
United States v. Smith ..........................................................................................................................................................30
W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l .........................................................................................15
Whitney v. Robertson ...........................................................................................................................................................50
Youngstown Sheet & Tube Co. v. Sawyer.................................................................................................................21, 22, 29
Zadvydas v. Davis ................................................................................................................................................................ 20
Zschernig v. Miller ......................................................................................................................................................... 45, 48
Statutes
The Alien and Sedition Acts.................................................................................................................................................36
The Bricker Amendment ......................................................................................................................................................52
The Case-Zablocki Act .........................................................................................................................................................55
The Posse Comitatus Act .....................................................................................................................................................30
The War Powers Resolution .................................................................................................................................................31
USA Patriot Act ............................................................................................................................................................. 41, 43
Other Authorities
International Convention on the Rights of the Child ............................................................................................................51
The Geneva Convention .................................................................................................................................................42, 53
The International Covenant on Civil and Political Rights .............................................................................................. 52, 53
U.S. Constitution, Art. I ...............................................................................................................................................7, 8, 24
U.S. Constitution, Art. II ......................................................................................................................................................19
U.S. Constitution, Art. III .........................................................................................................................................10, 11, 34
U.S. Constitution, Art. VI...............................................................................................................................................44, 47
U.S. Constitution, First Amendment ....................................................................................................................................36
U.S. Constitution, Tenth Amendment ....................................................................................................................................7
Treatises
The Restatement (Second) of the Foreign Relations Law ....................................................................................................51
The Restatement (Third) of the Foreign Relations Law ..................................................................................... 51, 53, 54, 56
Regulations
Uniform Code of Military Justice ............................................................................................................................. 35, 42, 43
HANDOUT 1 – INTRODUCTION AND THE NEUTRALITY CONTROVERSY
I.
What’s the Course About?
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A.
Foreign Affairs vs. International Law
International law is made up primarily of obligations that exist between nations. It’s
not created by any single nation acting alone, and there is generally supposed to be one
uniform set of rules.
Foreign affairs law is domestic law that governs a particular nation’s interactions with
the world.
B.
Two Big Sets of Issues
1.
What provision does the Constitution make for the conduct of foreign affairs?
How are foreign affairs powers divided and limited under the domestic
Constitution?
2.
II.

Are the federal government’s powers in foreign affairs limited by the
enumerated grants in the Constitution, or does it also possess powers
“inherent in sovereignty”?

What is the relationship between Congress’s power to declare war and the
President’s power as Commander-in-Chief?

To what extent, if any, does the Constitution permit restrictions on civil
liberties in wartime?

Can the federal government use the treaty power to get around
constitutional limits on its other powers, like the Commerce Clause?
What is the relationship between our domestic constitutional structures and the
rest of the world? How does international law interact with those structures?

To what extent can the federal government delegate governmental authority
to international institutions, like the United Nations or the World Trade
Organization?

Where does international law fit into the scheme of federal and state law
under the Supremacy Clause?
Foreign Affairs Law and Globalization
Three aspects of globalization are important:

Different countries are increasingly linked together through worldwide trade,
global capital markets, and international communication networks.

Change in the nature of foreign “threats” to the United States, from catastrophic
but discrete threats (e.g., Soviet ICBMs) to lower-level but pervasive threats (e.g.,
terrorism).

Change in the nature of international law, from exclusive concern with the
relationship between nation-states to concern with the relation between states and
individuals. International law is also a lot more concerned with social and
economic issues – as opposed to military and diplomatic ones – than it was in the
past.
One upshot of all this is that it’s increasingly hard to tell where domestic constitutional
concerns end and “foreign affairs” begin.
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III.
Constitutional Background
A.
Why Care About the History?
The historical background is important for at least two reasons:
1.
It shows how central foreign affairs were to the Framing of the Constitution.
2.
The particular foreign affairs concerns that the young nation had were very
influential in shaping the particular structure of the Constitution that we ended up
with.
B.
C.
III.
The Young Nation’s Position in the World
1.
New Kid on the Block: The first thing the new nation needed was something
that every new nation needs – that is, to be recognized as a nation by other
countries.
2.
Staying Out of Trouble: The central government must be able to keep the
nation out of trouble by preventing violations of international law in the states.
3.
Need for Commerce: Only if the power to regulate foreign commerce is
concentrated in the national government will we create a sufficiently strong
entity to bargain with other countries.
4.
Need to Mobilize the Forces and Resources of the Country: The country
needs to be able to put together a military force and project its power.
Constitutional Practice in the Early Republic

Every action sets a precedent.

People are making it up as they go along.
The Neutrality Controversy
A.
The Neutrality Proclamation, April 22, 1793: “[W]hosoever of the citizens of the
United States shall render himself liable to punishment or forfeiture under the law of
nations, by committing, aiding or abetting hostilities against any of the said powers, or
by carrying to any of them, those articles which are deemed contraband by the modern
usage of nations, will not receive the protection of the United States . . . [F]urther . . . I
have given instructions . . . to cause prosecutions to be instituted against all persons
who shall violate the law of nations, with respect to the powers at war.”
B.
Who Can Proclaim Neutrality? The op-ed debate between Pacificus (Hamilton) and
Helvidius (Madison) raises several issues:
C.

Is declaring neutrality an executive or legislative function?

Who has the power to interpret treaties?

Does the Constitution confer all possible “executive” powers on the President, or
only those mentioned in Article II?

Is the Law of Nations part of U.S. law?
The Correspondence of the Justices: The President asks the Supreme Court to
interpret the relevant treaty obligations for him, but the Court declines.
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D.
Henfield’s Case and the Law of Nations: In Henfield’s Case and other litigation,
American citizens are prosecuted for violating the Neutrality Proclamation. This
raises the question whether citizens can be tried for crimes that are defined not by
federal statute but by some other source, such as the Law of Nations or the Common
Law.
Eventually, most of these controversies are resolved by enactment of a Neutrality Act
as a federal statute in 1794.
HANDOUT 2 – THE NATURE OF THE FOREIGN AFFAIRS POWERS
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I.
Overview
A.
B.
“Missing Powers” in the Constitution’s Treatment of Foreign Affairs
 recognition of foreign governments

setting up consulates and maintaining the whole apparatus of foreign policy

establishment of “doctrines” to guide U.S. foreign and defense policy, like the
Monroe Doctrine or the recent doctrine of preemption

termination of treaties, as opposed to making them

a lot of powers to deal with immigration
Two Strands in the Cases
 The Ordinary Rules Apply: The U.S. remains a government of limited and
enumerated powers even in situations involving foreign affairs.

C.
Two Aspects of Sovereignty
 Internal Sovereignty: Who has the ultimate power in a political system? Who’s
not accountable to anyone else? See, e.g., Jean Bodin, The Six Books of the
Commonwealth (1606 trans.) (defining sovereignty as “the absolute and supreme
power of a republic”).

II.
Powers Inherent in Sovereignty: All nations have the powers necessary to
preserve themselves and operate as a member of the community of nations. These
powers are either implicit in the Constitution itself, or extra-constitutional in the
sense that they would exist even without a written constitution.
External Sovereignty: The right of nations to be free from external interference in
their internal affairs.
Ex Parte Merryman, 17 F. Cas. 144 (No. 9,487) (C.C.D. Md. 1861) (Taney, J.) [B&G 26]
A.
The Writ of Habeas Corpus: A common law writ used to test the legality of a
prisoner’s detention. Prior to 1867, available only for prisoners in federal (usually
executive) custody; today, important primarily as a means of collateral attack on state
criminal convictions.
B.
Relevant Texts
 The Suspension Clause, Art. I, § 9, cl. 2: “The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.”

C.
The Tenth Amendment: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”
Issues
 Ordinary Rules: Who has the power to suspend the writ?
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
III.
Chae Chan Ping v. United States, 130 U.S. 581 (1889) [B&G 27]
A.
IV.
Inherent Powers: Does the President have emergency powers not subject to
constitutional limitation?
Some Enumerated Alternatives to Inherent Powers
1.
The Naturalization Clause, Art. I, § 8: Congress has the power “[t]o
establish an uniform Rule of Naturalization.”
2.
The Migration Clause, Art. I, § 9: “The Migration or Importation of such
Persons as any of the States now existing shall think proper to admit, shall not
be prohibited by the Congress prior to the Year one thousand eight hundred
and eight.”
3.
The Commerce Clauses, Art. I, § 8: Congress has the power “[t]o regulate
Commerce with foreign Nations, and among the several States, and with the
Indian Tribes.”
B.
Rights of Citizens/Rights of Persons: The 5th Amendment provides “No person
shall . . . be deprived of life, liberty, or property, without due process of law.”
C.
Justice Field on Chinese Immigrants: “[T]hey remained strangers in the land,
residing apart by themselves, and adhering to the customs and usages of their own
country. It seemed impossible for them to assimilate with our people, or to make any
change in their habits or modes of living. As they grew in numbers each year the
people of the coast saw . . . in the crowded millions of China . . . great danger that at
no distant day that portion of our country would be overrun by them, unless prompt
action was taken to restrict their immigration.” 130 U.S. at 595.
The Internal/External Divide
A.
Internal Cases – Carter v. Carter Coal Co., 298 U.S. 238 (1936) ]B&G 29]: “It is no
longer open to question that the general government, unlike the states, possesses no
inherent power in respect of the internal affairs of the states; and emphatically not with
regard to legislation.”
B.
External Cases – United States v. Curtiss-Wright Export Corp., 299 U.S. 304
(1936) [B&G 30]: “[T]he investment of the federal government with the powers of
external sovereignty did not depend upon the affirmative grants of the Constitution.”
C.
Justice Sutherland’s Argument
1. Limited and enumerated powers applies only to internal affairs, where the point of
the Constitution was to carve federal powers out of the preexisting legislative
powers possessed by the States.
2. The States never had their own international powers, so the external powers of the
federal government came not from the States but from Great Britain, which had
previously exercised all powers of external sovereignty.
3. The result is that federal power over external affairs, e.g., "the powers to declare
and wage war, to conclude peace, to make treaties, to maintain diplomatic relations
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with other sovereignties, if they had never been mentioned in the Constitution,
would have vested in the federal government as necessary concomitants of
nationality."
D.
V.
The Argument for Executive Authority

History/Theory: The President was intended to be the nation’s “sole organ” in
foreign affairs.

Functional: The President has certain institutional advantages that are particularly
important in foreign affairs situations.
Powers Inherent in Sovereignty
A.
B.
Three Elements

An extra-constitutional source of government authority, derived from notions of
sovereignty in international law;

A relative lack of substantive constitutional constraint on the exercise of those
powers; and

Very limited judicial review of the Government’s exercise of those inherent
powers.
Roots

Legal precedent provided by cases on Indians, immigrants, and governing the
Territories; in each area, Court had held that ordinary constitutional rules don’t
applied.

Based in part on view that various sorts of “outsiders” – Indians, Asian immigrants
and inhabitants of Puerto Rico and the Philippines – aren’t worthy of the same
constitutional protections.

Based also in part on need for the U.S. to have the same powers as other world
powers – e.g., Britain, Germany, etc. – organized on more authoritarian lines.
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HANDOUT 3 – THE JUSTICIABILITY DOCTRINES
I.
Overview
A.
B.
Two Kinds of Cases

Public law cases challenging U.S. government action in foreign affairs. Limited
primarily by justiciability doctrines.

Private law cases where acts of foreign governments or foreign policy issues come
up in litigation between private parties. Limited primarily by act of state and
deference to executive judgments.
Article III and the Jurisdictional Statutes
Several jurisdictional provisions relevant to foreign affairs:

federal question

admiralty

alien-citizen diversity

cases involving foreign officials
Two observations:
II.

Early jurisdictional statutes emphasize admiralty and party-based forms of
jurisdiction.

Most jurisdiction over foreign affairs cases is not exclusive; state courts have
concurrent authority.
Introduction to Justiciability
A.
Legal Basis: These doctrines – like the advisory opinion bar – rest on both
constitutional and prudential grounds.

Constitutional: Article III limits the judicial power to "cases and
controversies."

Prudential: Limitations on judicial power that the courts have imposed on
themselves for policy reasons.
Note that prudential rules – unlike the ones that are derived from Art. III itself – can be
overridden by Congress.
B.
Standing: Has the lawsuit been brought by the right plaintiff?
C.
Ripeness: Has the lawsuit been brought too soon, before the dispute between the
parties has “ripened” into a case that the court can decide?
D.
Mootness: Haw the suit been brought too late, after the dispute between the parties
has ceased to exist?
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III.
Standing
A.
Constitutional Standing: The core requirement is that the plaintiff must himself have
suffered “some threatened or actual injury resulting from the putatively illegal action.”
Three questions:
1.
Concrete Injury: Is the injury too abstract, or otherwise not appropriate, to be
considered judicially cognizable?
The Court defines cognizable 'injury in fact' as an invasion of a legallyprotected interest which is (a) concrete and particularized, and (b) 'actual or
imminent, not conjectural or hypothetical.'
2.
Causation or Traceability: Is the line of causation between the illegal conduct
and injury too attenuated?
3.
Redressability: Is the prospect of obtaining relief from the injury as a result of
a favorable ruling too speculative?
Traceability
Redressability
challenged act -------- Injury -------- judicial order
B.
C.
IV.
Prudential Standing:
1.
No Third Party Standing: the "general prohibition on a litigant's raising
another person's legal rights,"
2.
No Generalized Grievances: "the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches," and
3.
Zone of Interests: "the requirement that a plaintiff's complaint fall within the
zone of interests protected by the law invoked."
Legislative Standing – Raines v. Byrd, 521 U.S. 811 (1997) [B&G 41]
1.
The Coleman Rule: Legislators can sue if their votes have been “totally
nullified.” That requires that the plaintiffs themselves have to represent votes
sufficient to defeat the challenged action that went into effect anyway.
2.
The Separation of Powers Argument: Courts should refrain from intervening
in disputes between the two branches that can be resolved by political means.
3.
Alternatives to Legislator Standing

An injured private party – i.e., someone who would have benefited from
the vetoed spending – can still sue.

Congress as a whole may be able to sue in its collective capacity.
Ripeness: Has the plaintiff sued too soon?
A.
Sources of Ripeness Requirement
(1)
Article III
(2)
Equitable discretion to deny injunctive relief
(3)
Discretion under Declaratory Judgment Act
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(4)
B.
C.
D.
Administrative Procedure Act
The Two-Part Test
(1)
Are the issues “fit for judicial resolution”?
(2)
Will the parties suffer hardship if judicial resolution is delayed?
Fitness for Judicial Resolution: Some considerations:

Are the issues purely legal?

Is factual context important to the resolution of the issues?

Is the challenged action, if by an administrative agency, “final” under the
APA?
Hardship: Some considerations:

Does the challenged government action govern primary conduct?

Are there severe civil or criminal penalties for violations of the challenged
rule?
Please note that the considerations in (c) and (d) are not exclusive.
V.
Mootness: Has the plaintiff sued too late? Or have the issues in controversy gone away due
to events occurring after the plaintiff filed suit?
A.
VI.
Reasons a Claim Might Become Moot:

Changes in the underlying legal framework

The challenged government action is of limited duration

The opponent provides full relief
B.
The Voluntary Cessation Exception: A case is not moot if the defendant ceases the
challenged conduct voluntarily but remains free to revert to it once the case is
dismissed.
C.
The “Capable of Repetition” Exception: An issue is not moot if it is “capable of
repetition, yet evading review.” See, e.g., Roe v. Wade. The plaintiff must show that:
(1)
the challenged action is in its duration too short to be fully litigated prior to its
cessation or expiration; and
(2)
there is a reasonable expectation that the same complaining party will be
subjected to the same action again.
Political Questions
A.
Marbury v. Madison: “Questions in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be made in this court.”
B.
Strong vs. Weak Theories
1.
Strong: A strong theory of the political question doctrine would say that even
though there might be a constitutional violation, the Court is powerless to do
anything about it because the question is committed to another branch.
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2. Weak: A weak theory would simply use "political question" as a way of
explaining why there is no substantive violation, i.e., that the other branch has
broad discretion to act in a particular area under the Constitution.
We might take the “weak” theory further and say there is no such thing as a political
question, but rather only cases in which either (a) the constitution simply grants broad
discretion to political actors or (b) the court is unwilling to grant equitable relief. See
Louis Henkin, Is There a Political Question Doctrine? 85 YALE L.J. 597 (1976).
C.
Factors favoring Nonjusticiability in Baker v. Carr, 369 U.S. 186 (1962) [B&G 48]
1)
"textually demonstrable constitutional commitment of the issue to a coordinate
political department";
2)
"lack of judicially discoverable and manageable standards for resolving it";
3)
"the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion";
4)
"impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government";
5)
"unusual need for unquestioning adherence to a political decision already
made"; or
6)
"potentiality of embarrassment from multifarious pronouncements by various
departments on one question."
D.
Goldwater v. Carter, 444 U.S. 996 (1979) [B&G 50]: The Court refuses to decide
whether the President must get Senate consent to terminate a treaty. Four justices say
political question; Justice Powell says ripeness.
E.
Japan Whaling Assn. v. American Cetacean Soc’y, 478 U.S. 221 (1986) [B&G 54]:
The Court decides question of statutory construction concerning certification of Japan
for whale poaching, despite foreign policy concerns about “one voice.”
The Chevron Doctrine: A court will defer to the interpretation of a statute by an
agency charged with enforcing that statute if:
F.
(a)
the statute is ambiguous, and
(b)
the agency’s interpretation is reasonable.
Where We Stand After Japan Whaling

Questions aren’t non-justiciable just because they have foreign policy implications.

Statutory questions are probably even less likely to be political questions than
constitutional ones.

The Baker factors are pretty narrow, especially when we basically only care about
the first two – textual commitment and manageable standards. In domestic law,
the political question doctrine has all but died out.

It may have more life in foreign affairs, especially in lower courts.
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HANDOUT 4 – ACT OF STATE
I.
The Act of State Doctrine: “Every sovereign State is bound to respect the independence of
every other sovereign State, and the courts of one country will not sit in judgment on the acts
of the government of another done within its own territory.” Underhill v. Hernandez, 168
U.S. 250 (1897) [B&G 61].
II.
Potential Sources of the Doctrine
III.

international law

the Constitution

state law

federal common law
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) [B&G 62]
Following the money:
1. Farr, Whitlock (US firm) agrees to buy sugar for export from C.A.V. (private Cuban firm).
2. Cuba revolts! Castro government nationalizes sugar industry.
3. Farr, Whitlock secures export license from Cuban gov’t; agrees to pay Cuban gov’t the
proceeds; sells the sugar in New York.
4. C.A.V. demands that Farr, Whitlock pay it the proceeds; Farr, Whitlock does so.
5. C.A.V. goes into receivership; Sabbatino appointed receiver.
6. Banco Nacional (on behalf of Cuban gov’t) sues Sabbatino for the sugar proceeds.
IV.
The Court’s Authority
A.
Erie Railroad v. Tompkins, 304 U.S. 64 (1938): “Except in matters governed by the
Federal Constitution or by Acts of Congress, the law to be applied in any case is the
law of the State. . . . There is no federal general common law.”
B.
Act of State as a Choice of Law Rule: The Act of State doctrine says that the acts of
a foreign sovereign done within its own territory will be judged under that foreign
sovereign’s law rather than international law or some other state’s law.
C.
The Klaxon Rule: In a federal diversity suit where state law provides the substantive
rule of decision, choice of law questions are governed by the conflicts rules of the state
Page 14 of 58
in which the district court sits. Klaxon Co. v. Stentor Elec. Mgf. Co., 313 U.S. 487
(1941).
D.
V.
Justice Harlan’s Answer: “We are constrained to make it clear that an issue
concerned with a basic choice regarding the competence and function of the Judiciary
and the National Executive in ordering our relationships with other members of the
international community must be treated exclusively as an aspect of federal law. It
seems fair to assume that the Court did not have rules like the act of state doctrine in
mind when it decided Erie R. Co. v. Tompkins.”
Possible Exceptions to the Act of State Doctrine
A.
International Law: U.S. courts can refuse to recognize acts of state that violate
principles of international law.
B.
Bernstein: Courts may consider the validity of foreign acts of state only if the
Executive files a statement suggesting that such consideration will not interfere with
foreign policy. See First National City Bank (plurality opinion of Rehnquist, J.) [B&G
74].
C.
Reverse Bernstein: Courts may consider the validity of foreign acts of state unless the
Executive files a statement suggesting that such consideration will interfere with
foreign policy. See Sabbatino [discussed at B&G 68].
D.
Counterclaims: Courts may consider the validity of foreign acts of state in the course
of adjudicating counterclaims against the foreign sovereign, when the foreign
sovereign has invoked the jurisdiction of the U.S. courts and when the counterclaim
will merely be set-off against the foreign sovereign’s claim. See First National City
Bank (Douglas, J., concurring) [B&G 77, 86].
E.
Commercial Activities: Courts may consider the validity of “purely commercial” acts
taken by foreign sovereigns. This gets four votes in DunhilError! Bookmark not
defined.l [B&G 86].
F.
Treaty Claims: The lower courts have generally not applied the act of state doctrine
where the challenged act is alleged to violate a binding treaty. [B&G 87]
G.
Human Rights Litigation: Although act of state is frequently raised as a defense to
litigation challenging violations of human rights by foreign governments, lower courts
have often avoided the doctrine by arguing
a) adjudication of human rights claims will not undermine foreign relations, based on
a case-by-case inquiry;
b) the abuse was not officially authorized by the foreign government; or
c) the customary law rules at issue are sufficiently clear to satisfy Sabbatino. [B&G
87]
Note that many of these claims will now arise under the federal Torture Victims
Protection Act.
Page 15 of 58
VI.
Limits to the Act of State Doctrine
A.
When Is a Foreign States’ Act “At Issue”? In Kirkpatrick [B&G 81], the Court says
that unless the case actually turns on the validity of a foreign act of state, the doctrine
doesn’t apply. The mere fact that adjudication may call such an act into question or
put it in a bad light – and therefore embarrass the foreign sovereign – isn’t enough.
B.
Official Public Acts: In Dunhill [B&G 85], the Court says that informal actions –
there, the repudiation of a quasi-contract obligation – don’t trigger the act of state
doctrine.
C.
Own Territory: Act of state covers only acts taken by a foreign government within its
own territory. Where an act occurs is not always obvious. For instance, where does
the repudiation of a debt occur?
HANDOUT 5 – EXECUTIVE DEFERENCE, FORUM NON CONVENIENS, AND INTERNATIONAL COMITY
I.
Judicial Deference to the Executive
A.
B.
Earlier Instances of Deference

Curtiss-Wright (broad ability to receive delegations from Congress)

Prudential aspects of the political question doctrine (“one voice”)

Chevron deference to executive construction of foreign affairs statutes in Japan
Whaling

Act of State doctrine turns importantly on executive position despite rejection of
Bernstein
Chevron Deference
Step 1: Is the statute ambiguous? If not, follow the plain meaning.
Step 2: If the statute is ambiguous, then is the agency’s interpretation reasonable? If
so, defer to the agency.
Rationales:
C.
II.

Agency expertise

Agency accountability (through the President)

Congressional intent to delegate
Issues in Lombera-Camorlinga

Should Chevron-type deference extend to executive construction of treaties?

Should we care what form the Executive position takes? E.g., does it matter if it’s
simply the position taken in a Justice Department brief, adopted for purposes of
litigation? Should it only be positions taken in formal rules? Cf. Mead [B&G
105]
Forum Non Conveniens and Comity
Page 16 of 58
A.
Two-Part Test
1. Is the other forum “adequate”?
2. Balance public and private interest factors
B.
C.
III.
Private Interest Factors

Access to sources of proof, including compulsory process and costs for witnesses;

Other practical factors affecting the costs and speed of trying the case.
Public Interest Factors

Court congestion in the initial forum;

Local interests in trying local cases locally;

Matching up the forum and the governing law;

Unfairness of imposing jury duty on citizens in unrelated forum.
D.
Presumptions and Burdens: Party seeking dismissal has burden of proof.
Presumption in favor of plaintiff’s forum choice.
E.
International Comity: Comity is simply respect for other courts. It impacts foreign
affairs cases in many ways. For present purposes, it’s much like domestic doctrines of
abstention – i.e., U.S. courts defer to pending litigation in foreign jurisdictions.
International Comity Writ Large
“Comity” includes not only the specific mini-abstention doctrine noted above, but also
broader notions of how to set up a multi-national judicial system and regulate the interactions
between its component courts.
A.
B.
C.
The “Inter-Jurisdictional Problem”

Proliferation of supranational courts

Overlap of substantive concerns with domestic courts

Ability of individuals to invoke supranational jurisdiction
Examples

Breard: U.S. federal courts vs. ICJ

Loewen & Mondev: NAFTA tribunals vs. U.S. state courts

International Criminal Court: When do domestic proceedings satisfy principle of
complementarity, barring ICC jurisdiction?
Principle of Institutional Settlement
“The principle of institutional settlement expresses the judgment that decisions which
are the duly arrived at result of duly established procedures . . . ought to be accepted as
binding upon the whole society unless and until they are duly changed.” H. Hart & A.
Sacks, The Legal Process.
Page 17 of 58
HANDOUT 6 – CONGRESSIONAL AND PRESIDENTIAL AUTHORITY
I.
An Overview of Separation of Powers
A.
B.
C.
Two Competing Principles
1.
Separated Powers: Government is divided into distinct departments with
sharp boundaries between them -- no mixing.
2.
Checks and Balances: Each branch is given a little involvement in the powers
of the others, as a means of defense against encroachment or usurpation by the
other branches.
Two Approaches to Separation of Powers Doctrine
1.
Formalism emphasizes the idea of separated powers. The key is to classify
whether a governmental entity is exercising legislative, executive, or judicial
power, and strike that power down if it's being exercised by the wrong branch.
Departures from separated powers are confined strictly to those authorized in
the constitutional text itself.
2.
Functionalism puts greater emphasis on the idea of checks and balances. The
critical question is whether a particular governmental arrangement undermines
the independence and core functions of one of the other branches. This
judgment depends largely on the particular situation at issue.
Three Values Underlying Separation of Powers Doctrine
1.
Individual Liberty: Division of authority prevents any one person or
institution from exercising arbitrary power. And requiring concurrence of all
three branches to get anything done minimizes the level of government
regulation generally.
Page 18 of 58
D.
2.
Control of Faction: It's difficult for a single faction to control all three
branches of government. This -- along with Federalism -- is part of Federalist
No. 51's "double security" against the tyranny of faction.
3.
Efficiency: Division of powers is supposed to promote specialization and
expertise. And it facilitates a strong and independent executive able to respond
rapidly to crises and present a unified front to other nations.
Textual Provisions
1.
Indiana Constitution, Art. 3, § 1: Three departments.
The powers of the Government are divided into three separate departments; the
Legislative, the Executive including the Administrative, and the Judicial; and
no person, charged with official duties under one of these departments, shall
exercise any of the functions of another, except as in this Constitution
expressly provided.
2.
Madison's Proposed Amendment (rejected by the First Congress)
The powers delegated by this constitution, are appropriated to the departments
to which they are respectively distributed: so that the legislative department
shall never exercise the powers vested in the executive or judicial; nor the
executive exercise the powers vested in the legislative or judicial; nor the
judicial exercise the powers vested in the legislative or executive departments.
3.
The Vesting Clauses
Art. I, § 1: All legislative Powers herein granted shall be vested in a Congress
of the United States which shall consist of a Senate and House of
Representatives.
Art. II, § 1, cl. 1: The executive Power shall be vested in a President of the
United States of America.
Art. III, § 1: The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time to
time ordain and establish.
4.
The "Take Care" Clause
Art. II, § 3: [The President] shall take Care that the Laws be faithfully
executed . . . .
II.
Congress’s Powers
A.
The Foreign Commerce Power
1.
Buttfield v. Stranahan, 192 U.S. 470 (1904) [B&G 108]: The Court rejects a
Lochner-era challenge to a federal restriction on foreign commerce. “[N]o
individual has a vested right to trade with foreign nations.”
2.
Purposes of the Commerce Clauses: See Champion v. Ames, 188 U.S. 321,
373 (1903) [B&G 118]
Page 19 of 58
B.

The domestic Commerce Clause is a free trade provision, designed “to secure
equality and freedom in commercial intercourse as between the states.”’

The foreign Commerce Clause is more about centralizing authority over foreign
policy by “cloth[ing] Congress with that power over international commerce,
pertaining to a sovereign nation in its intercourse with foreign nations.”
3.
The Dormant Side: The dormant aspect of the Foreign Commerce Clause
may be stronger than in domestic law in two respects:

The principle that states may not impose neutral “burdens” on commerce
may have more vitality under the foreign commerce clause than it does in
domestic cases.

Certain exceptions to the anti-discrimination rule in the domestic setting –
e.g., the “market participant” exception – may not apply to foreign
commerce.
The Power to Enforce International Law
1.
United States v. Arjona, 120 U.S. 479 (1887) [B&G 109]: The Court upholds
Congress’s ability to punish those who counterfeit foreign currencies.
2.
C.
Some Questions

Is Congress’s conclusion about what international law requires subject to
judicial review? Compare, e.g., City of Boerne v. Flores.

Does Congress have to define international law offenses, or can it
incorporate international law by reference?

Does Congress’s power to incorporate international law into domestic law
imply that customary international law is not federal law until Congress
says so?
Power Over Immigration
1.
Fong Yue Ting v. United States, 149 U.S. 698 (1893) [B&G 111]: The Court
extends the “plenary power” doctrine to deportation cases.
2.
The Decline of Plenary Power: Recent decisions suggested that the notion
that immigration is just different is on the way out. See, e.g., INS v. St. Cyr,
121 S. Ct. 2271 (2001) (interpreting restrictive immigration act to permit
judicial review of deportation proceedings); Zadvydas v. Davis, 121 S. Ct.
2491 (2001) (interpreting immigration act narrowly to foreclose indefinite
detention, based on due process concerns). There may have been some
retrenchment, however, since 9-11. See Demore v. Hyung Joon Kim, 538 U.S.
510 (2003) (holding that detention of aliens pending their removal hearings did
not violate due process, even though such detention would not be permissible
for citizens).
Page 20 of 58
D.
III.
Other Powers
1.
Spending: Congress can spend to achieve foreign policy goals (e.g., foreign
aid) and it may condition funds on actions by others to conform to Congress’s
wishes.
2.
A General Foreign Affairs Power? Is there a residual power to cover things
like the Hickenlooper Amendment and the Logan Act?
Two Theories of Presidential Powers
A.
Inherent Power (T. Roosevelt): “[T]he executive power was limited only by specific
restrictions and prohibitions appearing in the Constitution or imposed by Congress
under its Constitutional powers.” Roosevelt rejected “this view that what was
imperatively necessary for the Nation could not be done by the President unless he
could find some specific authorization to do it.”
See also Saikrishna Prakash & Michael Ramsey, The Executive Power over Foreign
Affairs, 111 YALE L. J. 231 (2001) (“[T]he President’s executive foreign affairs power
is residual, encompassing only those executive foreign affairs powers not allocated
elsewhere by the Constitution’s test. The Constitution’s allocation of specific foreign
affairs powers or roles to Congress or the Senate are properly read as assignments
away from the President.”) (emphasis added).
B.
Enumerated Powers (Taft): “[T]he President can exercise no power which cannot
be fairly and reasonably traced to some specific grant of power or justly implied and
included within such express grant as proper and necessary to its exercise. There is no
undefined residuum of power which he can exercise because it seems to him to be in
the public interest.”
HANDOUT 7 – THE STEEL SEIZURE CASE
I.
Options Available to the President

Wage Stabilization Board Proceedings: Three-way negotiations between the
administration, labor, and management, leading to recommendations on wage and price
increases by the Wage Stabilization Board.

Taft Hartley Injunction: Where a strike imperil national health or safety, the President
can appoint a board of inquiry to report on the underlying facts; if the report doesn’t
induce agreement, the Attorney general may seek an injunction barring a strike for 80
days. At the end of 80 days, the President reports to Congress with recommendations.

Seizure under the Selective Service Act: When producers fail to fill orders for goods
required by the armed forces, the President may seize the facilities subject to an obligation
to pay compensation.
Page 21 of 58
II.
III.

Condemnation under the Defense Production Act: The President may seize property
when necessary for national defense, provided that the Government pays 75% of
compensation up front.

Submit the Problem to Congress

Seize the Mills under the President’s own Executive Power
Justice Jackson's Categories
I. Congress Authorizes
Presidential Action
II. Presidential
Action/Congressional
Silence
III. Presidential Action
Contrary to Congressional
Directive
Presidential authority is "at
its maximum." Action can
be struck down only if the
federal government as a
whole
lacks
power.
"Strongest presumption" in
favor of such actions.
"Zone of twilight"; President
must rely on his independent
powers alone. Case by case
inquiry.
Presidential power is "at its
lowest ebb." President can rely
only on his own power minus
whatever power Congress has.
President can act only if Congress
lacks power; his action must be
"scrutinized with caution."
Some Loose Ends
A.
Executive Precedent: “[A] systematic, unbroken, executive practice, long pursued to
the knowledge of the Congress and never before questioned, engaged in by Presidents
who have also sworn to uphold the Constitution, making as it were such exercise of
power part of the structure of our government, may be treated as a gloss on “executive
Power” vested in the [President].” (Frankfurter, J., concurring)
B.
Emergency Powers: The Framers “knew what emergencies were, knew the pressures
they engender for authoritative action, knew, too, how they afford a ready pretext for
usurpation. We may also suspect that they suspected that emergency powers would
tend to kindle emergencies.” (Jackson, J., concurring)
C.
The Slippery Slope: “It is absurd to see a dictator in a representative product of the
sturdy democratic traditions of the Mississippi Valley. The accretion of dangerous
power does not come in a day. It does come, however slowly, from the generative
force of unchecked disregard of the restrictions that fence in even the most
disinterested assertion of authority.” (Frankfurter, J., concurring)
“Today a kindly President uses the seizure power to effect a wage increase and to keep
the steel furnaces in production. Yet tomorrow another President might use the same
power to prevent a wage increase, to curb trade-unionists, to regiment labor as
oppressively as industry thinks it has been regimented by this seizure.” (Douglas, J.,
concurring)
D.
Political Safeguards? Justice Jackson notes “the gap that exists between the
President’s paper powers and his real powers.” The President has several inherent
political advantages:
Page 22 of 58

power of executive branch concentrated in single actor

national election makes President the “focus of public hopes and expectations”

power over public opinion through unrivaled “access to the public mind through
modern methods of communication” leverages into power over other public
officials

head of national political party
But note that no one suggests these “political safeguards” are sufficient to eliminate
the need for judicial review.
E.
IV.
The Problem of Efficiency: “With all its defects, delays and inconveniences, men
have discovered no technique for long preserving free government except that the
Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be
last, not first, to give them up.” (Jackson, J., concurring).
Applying Youngstown
A.
Dames & Moore v. Regan, 453 U.S. 654 (1981) [B&G 142]: Court upholds President
Carter’s decision to cancel American attachments of Iranian assets. The Court upholds
this as basically consistent with what Congress would have wanted, even though it
wasn’t directly authorized by statute.
B.
Subsequent Cases

Haig v. Agee, 453 U.S. 280 (1981), upheld revocation of a passport on national
security grounds for a former-CIA operative who turned against the Agency and
was going around the world exposing other CIA agents working undercover.

Regan v. Wald, 468 U.S. 222 (1984) [B&G 156], allowed the President to
promulgate new restrictions on travel to Cuba notwithstanding his failure to follow
the procedures set out in IEEPA.

Dept. of Navy v. Egan, 484 U.S. 518 (1988) [B&G 156], upheld the discharge of a
worker in a naval yard on the basis of the denial of a security clearance, stating that
the Executive’s decision to deny the clearance isn’t subject to judicial review.

Christopher v. Harbury, 122 S. Ct. 2179 (2002) [B&G 157], rejected a claim that
the Secretary of State’s withholding of information about CIA activities violated
the constitutional right of access to courts. The Court says that because the
defendants’ action “was apparently taken in the conduct of foreign relations,” there
are special “concerns for the separation of powers” in judicial intervention.
Page 23 of 58
HANDOUT 8 – CONGRESSIONAL REGULATION OF FOREIGN AFFAIRS POWERS
I.
Delegations and Limitations on Presidential Authority
A.
“Framework Statutes”: Broad enactments that regulate the way government
performs its duties, generally providing both delegations of authority and mechanisms
for checking its exercise.
B.
Broad Delegations

Trading with the Enemy Act of 1917: Delegates authority to freeze and seize assets
and regulate international transactions, after declaring a national emergency or war.

International Emergency Economic Powers Act (IEEPA): Similarly broad
authority over economic assets and activities, based on presidential finding of
emergency.

Export Administration Act: Confers “near-plenary authority over U.S. exports.”
Page 24 of 58

C.
D.
II.
Trade Promotion Authority (“Fast Track”): Authorizes the President to negotiate
trade agreements and commits Congress to give an “up or down” vote on the result
without amendments or delay.
Congressional Checks on the President

Legislative Vetoes: Congress can disapprove presidential exercises of delegated
authority after the fact by either one or two house resolutions, without opportunity
for presidential veto. Chadha [B&G 148] nixes this option.

Declarations of Emergency: Congress may try to substantively restrain the
President by requiring that some powers may only be exercised after a declaration
of an “emergency.”

Consultation Requirements: Require the President to consult with Congress (or a
subset of Congress) before taking certain actions.
Congressional Checks on Itself: Under the Fast Track procedure, Congress commits
to consider trade agreements on an expedited schedule and without opportunities for
amendments.
INS v. Chadha, 462 U.S. 919 (1983) [B&G 148]
A.
Bicameralism and Presentment
Art. I, § 1: “All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of Representatives.”
Art. I, § 7: “Every Bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the President of the United
States . . . .”
B.
Two Approaches to Formalist Separation of Powers Analysis
1.
Characterization: The Court asks


2.
C.
Is the function being performed legislative, executive, or judicial in
character?
Is the right branch performing it?
Same-Branch Limits: The Court asks

Which branch is acting?

Is that branch observing the particular constitutional requirements for
action by that branch?
Alternative Mechanisms to the Legislative Veto

Report and Wait: Congress can require that rules be submitted to Congress and
become effective only after a certain period, leaving time for legislative action.

Sunset Provisions: Congress can provide that agency authority lapses after a few
years, requiring renewal through a new statute.
Page 25 of 58

Joint Resolutions: Congress can provide that agency action becomes effective only
if approved (or if not disapproved) by both Houses of Congress through a joint
resolution, which can be vetoed by the President.

Informal Agreements: Congress can refuse to grant agency authority to act unless
the agency informally agrees not to do certain things without the approval of its
supervising committee.

Appropriations Rules: Congress can provide, by internal rule, that appropriations
for a particular action will not be approved by the appropriations committee
without a resolution by the authorizing committee approving the action.

Fast Track Procedures: Congress can make “fast track” treatment of treaties, etc.,
conditional on a legislative committee’s approval of the measure.
HANDOUT 9 – WAR POWERS: HISTORY AND CONGRESSIONAL POWER
I.
Background
A.
Two Sets of Issues
 Congress vs. the President

B.
War and Individual Rights
Powers granted to Congress
 to declare War

to grant Letters of Marque and Reprisal, and make Rules concerning Captures on
Land and Water

to raise and support Armies
Page 26 of 58
C.

to provide and maintain a Navy

to make Rules for the Government and Regulation of the land and naval Forces.

to provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions

to provide for organizing, arming, and disciplining, the Militia
Power granted to the President:

D.
E.
II.
III.
The President “shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual Service
of the United States.”
Powers expressly prohibited to the States:

To engage in war (unless invaded or in imminent danger); and

To keep troops or ships of war during peacetime.
The Early Debates
 Much distrust of the Executive. “War is in fact the true nurse of executive
aggrandizement.” (Madison, Helvidius essay)

Strong evidence that the Founders don’t want the President to be able to start a
war.

Widespread agreement that the President needs to be solely in charge of
conducting military operations.
Three Positions
A.
The Congress Camp: The history makes clear that the Founders didn’t want to be
able to commit troops without congressional authorization, outside a very narrow
exception for responding to sudden attacks.
B.
The Executive Camp: Either (1) the power to declare war was intended to be very
narrow, so that its only consequences was to trigger certain legal conditions incident to
wartime; or (2) we just shouldn’t be originalists on this because the world has
changed.
C.
Middle Ground (Ramsey): Congress must authorize any action that explicitly or by
action initiates a state of war with another nation. But the President may:

Take military actions short of creating a state of war;

Respond to an attack that initiates a state of war and prosecute the war to
its conclusion; and

Take actions, like deploying troops or severing diplomatic relations, that
are likely to provoke an attack.
Congress’s Power to Declare War
A.
Declarations, Authorizations, and Uses of Force
Only 5 declarations of war by Congress:
Page 27 of 58

the War of 1812

World War I

the Mexican-American War of 1846-48

World War II

the Spanish-American War of 1898
One study counts 234 uses of force. Some of these were authorized by Congress
without a declaration of war, e.g.:
B.

Barbary Pirates (1802)

Civil War (1861)

Gulf of Tonkin Resolution
(1964)
The Legal Effect of Wars
1.
2.
Legal Relevance: A state of war may be relevant to:

statutory rights and obligations (e.g., prize cases)

rights under international law

U.S. Code of Military Justice

Private contracts (e.g., for insurance)
Bas v. Tingy, 4 U.S. 37 (1800) [B&G 170]: The Court holds that the
“undeclared war” between the U.S. and France is in fact a “war” for purposes
of U.S. law. “[E]very contention by force between two nations, in external
matters, under the authority of their respective governments, is not only war,
but public war.”
Three elements here:
3.
C.
a.
force
b.
external matters
c. governmental authority
Perfect and Imperfect Wars: “Perfect wars” are all-out affairs like World
War II; “imperfect” wars are limited “as to places, persons, and things.”
When Must Congress Declare War?
George Bush Sr: “I didn’t have to get permission from some old goat in the United
States Congress to kick Saddam Hussein out of Kuwait.”
1.
Historical Practice: Early history suggests that first few presidents thought
that congressional authorization was required for military operations.
2.
Contrary View: Professor Yoo takes the position that declarations of war are
in the Constitution only to give Congress the power to fix the legal
consequences of hostilities.
3.
Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) [B&G 173]: Judge
Greene says obligation to seek authorization for “war” is not a political
question, but that the dispute was not ripe. But see Ange v. Bush, 752 F. Supp.
509 (D.D.C. 1990) (different judge, same court, says it is a political question).
Page 28 of 58
HANDOUT 10 – PRESIDENTIAL WAR POWERS
I.
John Doe v. Bush (filed Feb. 13, 2003)
A.
Plaintiffs
 Six members of Congress who claim that they’re being denied their right to vote
on a declaration of war.

Three servicemen who have either been called up and sent to the Gulf or think they
are likely to be called up soon.

Several parents of servicemen and women who are likely to serve in any conflict in
Iraq.
Page 29 of 58
B.
II.
The Delegation Claim: Although Congress has issued an authorization for action
against Iraq, the suit claims that the authorization “unconstitutionally cedes to the
President the power to decide whether or not to send this nation into war.”
Three Questions
1. What war powers does the President have notwithstanding Congressional action?
2. In the absence of congressional authorization, does the President have power to initiate
conflict?
3. What is the nature of the President’s power to repel “sudden attacks”?
III.
The President vs. Congress
A.
The Basic Principle of Youngstown: Presidential power is, at least in part, a function
of congressional action or inaction.
B.
Little v. Barreme 6 U.S. 170 (1804) [B&G 184]
Two questions:
1. Do the instructions make the seizure legal?
2. Should Captain Little have to foot the bill when he was just following orders?
Modern protections for federal officers:
IV.

For tort claims the Federal Tort Claims Act provides that if an officer is acting
within the scope of his duties, then the U.S. is automatically substituted as the
defendant and pays any award.

For other sorts of claims, the officer will have “qualified immunity,” which means
that he’s only liable if the law he was violating was “clearly established.”
Starting a War and Repelling Attacks
A.
The Argument for Presidential Power: Article I grants Congress the power to
“declare” war. That suggests that all other military powers – including the power to
initiate hostilities by means other than formal announcement – remain with the
President as residual powers.
Problem: Most historical evidence suggests that the Founding Generation meant to
keep the President from starting wars.
B.
United States v. Smith, 27 F. Cas. 1192 (1806) [B&G 186]: The Court holds that
executive authorization is irrelevant to a prosecution of a private citizen for violation
of the Neutrality Act for supporting an expedition against Spanish territory.
C.
Presidential Provocations – The Mexican-American War: During a border dispute
with Mexico, President Polk moves U.S. troops into disputed territory on the north
bank of the Rio Grande. Ensuing incidents include incursions by Mexican troops into
territory claimed by the U.S., which Polk then states to be a casus belli.
Two separate questions:

Were the initial actions taken by President Polk constitutional if he knew that they would
provoke hostilities?
Page 30 of 58

D.
E.
F.
G.
Once hostilities had begun, was the President limited to defending against Mexican
incursions until he obtained congressional authorization for offensive operations?
Repelling “Sudden Attacks”
1.
A Possible Rationale: When the nation is attacked, the attack by another
nation creates the state of war that triggers the President’s commander in chief
power; there is thus no question whether the President or Congress can initiate
hostilities, as they have already been initiated.
2.
U.S. Citizens Abroad – Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y.
1860) [B&G 189]: Does the same authority to defend the nation extend to
U.S. citizens residing in other countries?
Rebellions and Internal Use of the Military
1.
The Prize Cases, 67 U.S. 635 (1863) [B&G 190]: The Court holds that
President Lincoln’s naval blockade of the Confederacy was legal, either
because the President may act to defend against rebellions or because Congress
had authorized it. The Court defers to the President’s judgment that the
rebellion was sufficiently serious to require the exercise of war powers.
2.
The Posse Comitatus Act, 18 U.S.C. § 1385 (1878) [B&G 195]: The Act bars
use of the armed forces for civilian law enforcement activities, unless
otherwise permitted by federal law.
Post-September 11 Issues: Two key questions:

Are the rules the same for “wars” against non-state actors, like Al Qaeda?

Does the President’s power to respond to sudden attacks include the power to act
preemptively to prevent such attacks?
War Termination: Who has power to end a war? Three possibilities:

Treaty

Legislation

Presidential proclamation
HANDOUT 11 – THE WAR POWERS RESOLUTION AND COLLECTIVE USES OF FORCE
I.
The War Powers Resolution, 50 U.S.C. §§ 1541-1548 (1973) [B&G 198]
A.
Limitation of Commander in Chief Power: § 2(c) purports to limit the President's
exercise of his Commander in Chief powers to three situations:
1. a declaration of war;
2. specific statutory authorization; or
3. a national emergency created by attack upon the United States, its territories or
possessions, or its armed forces.
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Note that this section is generally agreed simply to be a statement of Congress's view,
not a provision having binding legal force.
B.
Consultation Requirement: § 3 requires the President to consult with Congress, if
possible before introduction of U.S. forces and regularly thereafter until they are
removed.
C.
Reporting Requirement: § 4 contemplates three reporting situations:

4(a)(1)
forces are introduced into hostilities or imminent involvement in
hostilities is clearly indicated.

4(a)(2)

4(a)(3)
forces are introduced in numbers that "substantially enlarge" forces
equipped for combat already located in a foreign nation.
forces are introduced into foreign territories equipped for combat.
§ 5's clock starts running only when the President makes a report to Congress under §
1543(a)(1).
The President must report within 48 hours of his action. The report must state
D.

the circumstances necessitating the introduction of U.S. forces;

the constitutional and legislative authority under which it occurred;

the estimated scope and duration of hostilities; and

"such other information as the Congress may request."
The Clock Provision: A report under § 4(a)(1) starts a 60 day clock. At the end of
that period, Congress must terminate the use of U.S. forces unless Congress:
(a)
declares war or specifically authorizes the use of U.S. forces;
(b)
extends by law the 60 day period; or
(c)
is physically unable to meet as a result of an armed attack upon the U.S.
Objective Trigger: The clock also starts if a report "is required to be submitted" under
§ 4(a)(1).
Extension: The President can extend the period by an additional 30 days if he
determines and certifies to Congress in writing that "unavoidable military necessity
respecting the safety of United States Armed Forces" requires continuing use of those
forces to effect a safe withdrawal.
E.
Congressional Removal Order: Despite the clock, § 4(c) provides that at any time
Congress can order the President to remove U.S. forces by concurrent resolution,
which does not require Presidential approval.
F.
Guides to Interpretation: § 8 provides that

authorization for military action in a law or treaty must specifically mention the
WPR;

the WPR extends to use of forces as advisors to foreign forces; and

the WPR is not intended to alter anyone's constitutional powers.
Page 32 of 58
G.
II.
Enforcement Issues

Campbell v. Clinton: Can a court enforce the Resolution’s provision for
withdrawal after the running of the clock?

Doe v. Bush: Can an authorization for the use of force be so broad as to violate the
delegation doctrine?
Collective Uses of Force
A.
Treaties as Authorization for War: Can an international agreement entered into in
advance of hostilities provide the requisite congressional authorization for the use of
force?
1.
B.
The UN Charter

The Security Council may authorize military action if it determines “the
existence of any threat to the peace, breach of the peace, or act of
aggression.” Art. 39.

UN Members agree to “join in affording mutual assistance in carrying out
the measures decided upon by the Security Council.” Art. 49; see also Art.
2(5), 25, 48.
2.
The UN Participation Act: Congress authorized the President to negotiate an
agreement to provide forces to the UN, and provided that the President would
not need further Congressional authorization to provide military support in
circumstances contemplated by the agreement. But no such agreement was
ever concluded.
3.
Collective Self-Defense Agreements: Agreements such as the Rio Treaty with
18 countries in Central and South America, the Southeast Asia Collective
Defense Treaty, and the North Atlantic Treaty Organization all commit the
U.S. to use force in response to an armed attack on any signatory country.
Delegation of Command Authority: Where the U.S. uses force multilaterally, may it
place troops under foreign command?
1.
2.
Types of Command

Policy command

Operational command

Strategic command

Tactical command
The Appointments Clause: The President “shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of
the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President
alone, to the Courts of Law, or in the Heads of Departments.” Art. II, § 2, cl. 2.
Page 33 of 58
HANDOUT 12 – MILITARY COMMISSIONS
I.
Overview
A.
One Academic View: It’s a “bedrock principle of our constitutional system” that “the
body that defines what conduct to outlaw, the body that prosecutes violators, and the
body that adjudicates guilt and dispenses punishment should be three distinct entities.
To fuse those three functions under one man’s ultimate rule, and to administer the
resulting simulacrum of justice in a system of tribunals created by that very same
authority, is to mock the very notion of constitutionalism and to make light of any
Page 34 of 58
aspiration to live by the rule of law.” Neal K. Katyal & Laurence H. Tribe, Waging
War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L. J. 1259, 1259 (2002).
B.
II.
III.
Some Questions
(1)
Why use military commissions to try terrorists?
(2)
Where does Congress get the power to create military commissions?
(3)
Do military tribunals violate Art. III?
(4)
Do military tribunals violate Due Process?
(5)
Does the President have the authority to implement military tribunals without
authorization from Congress?
(6)
Do military tribunals violate international law?
The Cases
A.
Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) [B&G 226]: The Court holds that a
military tribunal lacked jurisdiction to try a U.S. citizen, living in Indiana, of
conspiring to aid the Confederacy.
B.
Ex Parte Quirin, 317 U.S. 1 (1942) [B&G 230]: The Court upholds the use of
military tribunals for German saboteurs apprehended in the Unite States.
President Bush’s Order
A.
Judicial Review: “The individual shall not be privileged to seek any remedy or
maintain any proceeding, directly or indirectly . . . in (i) any court of the United States,
or any State thereof, (ii) any court of any foreign nation, or (iii) any international
tribunal.”
B.
Review by Habeas Corpus: The Court has generally held that Congress must speak
very clearly to eliminate habeas review. See, e.g., St. Cyr; Ex parte Yerger. But
habeas review is fairly narrow in scope. Under Yamashita, the habeas court reviews:
C.

whether the military commission procedure is lawful; and

whether the charge against the defendant states a violation of the law of war.
Defense Dept. Regulations on Procedures: The rules now require:

appointment of counsel

proof of guilt beyond a reasonable doubt

right not to testify, and to cross-examine witnesses

panels of 3 to 7, with 7 in capital cases

2/3 vote to convict; unanimous in capital cases

procedures similar to Uniform Code of Military Justice
The exceptions to the UCMJ are: loosened rules of evidence and appeals to panels
appointed by Secretary of Defense.
The DOD’s orders and instructions for military commissions are available at
http://www.dtic.mil/whs/directives/corres/mco.htm.
Page 35 of 58
IV.
V.
Tribunals Abroad
A.
Justifications: Either (a) the domestic courts aren’t functioning, compare Milligan, or
(b) the charges are for war crimes.
B.
Habeas Jurisdiction: Federal courts can issue writs only within their geographical
jurisdiction. The key is jurisdiction over the custodian or his superiors in the chain of
command – usually available in D.C.
International Law
A.
The Geneva Convention Relative to the Treatment of Prisoners of War: “A
prisoner of war can be validly sentenced only if the sentence has been pronounced by
the same courts according to the same procedure as in the case of members of the
armed forces of the Detaining Power.”
B.
Some Questions

Does the Geneva Convention apply to unlawful combatants?

If not, what procedures are required to determine who is unlawful?
Convention says a “competent tribunal.”

Does tying treatment of enemies to treatment of one’s own soldiers create perverse
incentives?
The
HANDOUT 13 – CIVIL LIBERTIES IN WARTIME: PART 1
I.
Two Views on Limits on Civil Liberties in Wartime
A.
Betrayal: Wartime brings out the worst in our natures; it tempts us to betray our
constitutional heritage by unduly restricting civil liberties. This amounts to a rejection
of the rule of law: “Inter arma silent leges” (“in times of war the law is silent”)
(Cicero).
Page 36 of 58
B.
Natural Accommodation: Wartime simply demands a re-calibration of balances
struck during times of peace:
“[N]o longer do our civil liberties seem immune from critical reflection. They are not,
as the naive suppose, engraved in the Constitution. They are the creation of Supreme
Court justices playing variations on themes stated in that document with notable
brevity and looseness. They are the point of balance between public safety and
personal liberty, and as the relative weights change, the balance shifts. Endangered
more gravely than we had supposed possible by an enemy that cannot be defeated by
military methods alone, the nation redraws the line between security and liberty.”
Richard A. Posner, in Reflections on an America Transformed, N.Y. TIMES, Sept. 8,
2002, § 4, p. 15.
II.
III.
Early Restrictions: The Alien and Sedition Acts (1798)
A.
The Alien Act authorized the President to “order all such aliens as he shall judge
dangerous to the peace and safety of the United States, or shall have reasonable
grounds to suspect are concerned in any treasonable or secret machinations against the
government thereof, to depart out of the territory of the United States.” 1 Stat. 570,
570-71 (June 25, 1798).
B.
The Sedition Act made it a crime to “write, print, utter, or publish . . . any false,
scandalous, and malicious writing” against the government or President of the United
States. 1 Stat. 596, 596-97 (July 14, 1798).
Free Speech
A.
Incitement: The World War I cases (Schenck, Abrams) uphold the Espionage Act of
1917, which restricted speech intended to impede the war effort.
Clear and Present Danger: “The question in every case is whether the words used
are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to
prevent.” Schenck [B&G 247].
The BrandenburgTest: “[T]he constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio,
395 U.S. 444, 447 (1969).
B.
Prior Restraint: Questions in the Pentagon Papers case:

Does the First Amendment ever permit prior restraints on publication?

If so, what sort of showing should be required to justify a prior restraint?

Who has power to authorize a prior restraint? Congress by law? The Executive
branch by promulgating a regulation? The President by imposing a restriction in
particular instances? The courts by temporary restraining order or by injunction?
Page 37 of 58
HANDOUT 14 – CIVIL LIBERTIES IN WARTIME, PART 2
I.
Treatment of Aliens – The Japanese Internment
A.
Hirabayashi v. United States, 320 U.S. 81 (1943): The Court upholds a curfew order
confining all persons of Japanese ancestry to their homes between 8 pm and 6 am.
Some high points:
Page 38 of 58
B.

Unlike Korematsu, the Court is unanimous.

In addition to the claim of racial discrimination, the Court considers and rejects a
claim that the statute authorizing such orders unconstitutionally delegates
legislative power to military commanders.

The Court applies “reasonableness” review or rational basis scrutiny to the order
notwithstanding the argument that it discriminates on the basis of race and national
origin.

The Court notes that the military order does not seem to bar challenges to the order
by way of habeas corpus and other affirmative litigation mechanisms. They hold
only that one cannot violate the order and then defend on the ground that the order
is unconstitutional.
Korematsu v. United States, 323 U.S. 214 (1944) [B&G 251]: The Court upholds (72) an exclusion order excluding Japanese Americans from the West Coast and ordering
them confined in “relocation centers.”
1.
Strict Scrutiny for Racial Classifications: Korematsu is the first case
recognizing the “suspect” nature of racial classifications and insisting on “strict
scrutiny” of such classifications. “All legal restrictions which curtail the civil
rights of a single racial group are immediately suspect. That is not to say that
all such restrictions are unconstitutional. It is to say that courts must subject
them to the most rigid scrutiny. Pressing public necessity may sometimes
justify the existence of such restrictions; racial antagonism never can.”
Notwithstanding strict scrutiny, the majority is much more deferential to the
government’s factual assertions than a court would likely be under current law.
2.
The Court’s Options: The Korematsu situation might be dealt with in at least
the following variety of ways:

Defer, Defer, Defer (Korematsu majority): Accept the military judgment
of necessity as sufficient to satisfy the Constitution.

Group Exclusion with Habeas Review (Hirabayashi majority): Allow
the military to exclude everyone, but allow particular individuals to
challenge their exclusions through subsequent legal proceedings.

Question Authority (Murphy, J.): Refuse to defer to military judgment of
necessity and strike down the exclusion.

Permit Exclusion But No Judicial Validation (Jackson, J.): If the Court
has no choice but to let the military do what it thinks best, it should still not
create a legal precedent by holding that the orders were constitutional.

Prohibit Exclusion But Limit Remedies (Young, P.): A court need not
issue an injunction against the military order if it is not in the public
interest (and a court might defer to the military on that question), but it
could still permit damages actions after the fact if the order can be shown
to be unconstitutional. That combination would allow the military to act
quickly to head off imminent danger, while spreading the costs of that
action over the whole society.
Page 39 of 58
Arguably, we have arrived at this solution in the very long run through
reparations payments.
Korematsu’s Continuing Significance: Two views:
C.
“Once a judicial opinion rationalizes such an order to show that it conforms to the
Constitution, or rather rationalizes the Constitution to show that the Constitution
sanctions such an order, the Court for all time has validated the principle of racial
discrimination in criminal procedure and of transplanting American citizens. The
principle then lies about like a loaded weapon ready for the hand of any authority
that can bring forward a plausible claim of an urgent need.” Jackson, J., dissenting
in Korematsu.
“The Hirabayashi and Korematsu decisions have never occupied an honored place
in our history. In the ensuing four and a half decades, journalists and researchers
have stocked library shelves with studies of the cases and surrounding events.
These materials document historical judgments that the convictions were unjust.
They demonstrate that there could have been no reasonable military assessment of
an emergency at the time, that the orders were based upon racial stereotypes, and
that the orders caused needless suffering and shame for thousands of American
citizens.” Hirabayashi v. United States, 828 F.2d 591, 593 (9th Cir. 1987)
(Schroeder, J.).
II.
After September 11
A.
U.S. Citizens as Enemy Combatants
1.
2.
B.
Yaser Hamdi: American Taliban, apprehended in Afghanistan, held in a
naval brig in Norfolk, VA. The Supreme Court holds in Hamdi v. Rumsfeld,
124 S. Ct. 2633 (2004) [Supp. 17], that:

Congress’s authorization for use of force in the “War on Terror” covers
detention of people like Hamdi.

Due process requires some opportunity to contest the factual basis for
Hamdi’s detention. What sort of proceeding he gets is governed by the
balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), which
balances a) Hamdi’s interest more elaborate proceedings, b) the Govt’s
interest in abbreviated proceedings, and c) the likelihood that more
elaborate procedures would produce a more accurate result.
Jose Padilla: Alleged “dirty bomber” – U.S. citizen connected to Al Qaeda,
apprehended at O’Hare Airport and detained within the U.S. The district court
in NY held that Padilla may seek judicial review of enemy combatant status
and that he is entitled to access to counsel. The Court ditches this one on
venue grounds. See Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004) [Supp. 37].
Guantanamo Detainees
1.
The Status of Guantanamo: “While on the one hand the United States
recognizes the continuance of the ultimate sovereignty of the Republic of Cuba
over the above described areas of land and water, on the other hand the
Republic of Cuba consents that during the period of occupation by the United
States of said areas under the terms of this agreement the United States shall
Page 40 of 58
exercise complete jurisdiction and control over and within said areas.” Lease to
the United States of Lands in Cuba for Coaling and Naval Stations, Art. III,
Feb. 16-23, 1903, U.S.-Cuba, T.S. No. 418.
2.
Statutory Right of Access to Courts – Rasul v. Bush, 124 S. Ct. 2686 (2004)
[Supp. 38]: The Court holds that the habeas corpus statute (and possibly the
Alien Tort Act) confers jurisdiction on the federal courts to hear petitions for
habeas relief by the Guantanamo detainees. The key point is that the habeas
statue now requires jurisdiction over the custodian (or the custodian’s boss)
rather than the prisoner.
But note that it is unclear what substantive claims these petitioners can bring.
Cf. Hamdi, supra.
3.
4.
C.
Constitutional Right of Access to Courts – Johnson v. Eisentrager, 339
U.S. 763 (1950) [see B&G 235]: The Court rejects challenges by German
nationals prosecuted for aiding the Japanese in China after the German
surrender to their trial by military tribunal sitting in Nanking. Several
important points:

Much of the opinion states that “enemy aliens” who are not resident in the
U.S., whose activities have all taken place outside the U.S, and whose trial
and captivity are outside the U.S., have no access to U.S. courts.

The Court does, however, review (a) the legality of trying these defendants
by military tribunal; (b) whether the defendants were in fact enemy aliens;
(c) whether the indictment stated a violation of the laws of war; (d) whether
the trial by military tribunal violated international law.

The Court does not have occasion to consider challenges to (a) conditions
of confinement; (b) the procedures employed by a military tribunal; or (c)
holding prisoners indefinitely without any trial at all.

The opinion relies heavily on (a) the fact that Nanking is not U.S.
“sovereign” territory; (b) lack of jurisdiction over the prisoner (as opposed
to the custodian); and (c) likely interference with military operations by
permitting this sort of litigation.

Finally, the opinion assumes there is no statutory jurisdiction; its holding
deals with whether such jurisdiction is constitutionally required.
International Law: The Geneva Convention provides certain rights to
prisoners of war. The Bush Administration, however, has taken the position
that the Guanatamo detainees are not POWs because either (a) Al Qaeda is not
a state or (b) the Taliban fighters were did not meet the Convention’s
requirements for irregular forces (i.e., responsible commanders, uniforms,
operations according to the laws of war).
Other Detainees: At least three other classes of detainees:

Immigration detainees

federally-charged detainees
Page 41 of 58

D.
material witness detainees
Privacy and Dissent
1.
2.
Guilt by Association? The Government has expanded liability for terrorist
acts to include “material support” for groups designated as terrorist groups. At
least two issues:

Does “material support” effectively criminalize membership in political
organizations?

Should there be procedural or substantive constraints on whom can be
designated as a terrorist group?
USA Patriot Act: Expands surveillance and investigatory powers of gov’t in a
variety of ways, mostly outside the scope of this course.
Page 42 of 58
HANDOUT 15 – MILITARY COMMISSIONS (CONT.) AND THE PATRIOT ACT
I.
Hamdan v. Rumsfeld, No. 04-1519 (D.D.C. Nov. 8, 2004)
A.
Procedural Posture: Hamdan is a Yemeni Gitmo detainee, picked up in Afghanistan
and slated for trial by military commission. He filed a petition for a writ of habeas
corpus (as permitted under Rasul) which was ultimately heard in federal district court
in the District of Columbia. Judge James Robertson granted the petition in part.
B.
“Competent Tribunal”: The first ground of Judge Robertson’s ruling was that
Hamdan cannot be tried by military commission until a “competent tribunal” has
determined that he is an unlawful combatant.
C.

Art. 21 of the UCMJ recognizes that court martial jurisdiction is not exclusive of
“concurrent jurisdiction with respect to offenders or offenses that by statute or by
the law of war may be tried by military commissions, provost courts, or other
military tribunals.” 10 U.S.C. § 821.

The Geneva Convention – part of the “law of war” – provides that POWs “can be
validly sentenced only if the sentence has been pronounced by the same courts
according to the same procedure as in the case of members of the armed forces of
the Detaining Power.” Third Geneva Convention, Art. 102. If there is doubt as to
whether someone is a POW, “such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a competent
tribunal.” Art. 5.

Hamdan was determined to be an “enemy combatant” by a Combatant Status
Review Tribunal (CSRT), but not an unlawful combatant not entitled to POW
status. That determination was made by the President.

Therefore, until a “competent tribunal” determines Hamdan to be an unlawful
combatant, he can only be tried by court martial under the UCMJ.
“Contrary to or Inconsistent” with the UCMJ: The second, independent ground is
that certain military commission procedures are invalid under the UCMJ.

Art. 36 of the UCMJ delegates to the President authority to prescribe “[p]retrial,
trial, and post-trial procedures, including modes of proof, for cases arising under
this chapter triable in courts-martial, military commissions and other military
tribunals.” Those procedures “shall, so far as he considers practicable, apply the
principles of law and the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts,” but they “may not be contrary
to or inconsistent with this chapter.” 10 U.S.C. § 836.
Judge Robertson focused on two differences between military commission procedures
and the UCMJ:

Appeals: The military commission procedure substitutes review by a “Review
Panel” established by the President for the existing military appellate system,
which includes civilian judges and the possibility of direct appeal to the U.S.
Supremes. Judge Robertson found that this change was “not ‘contrary to or
inconsistent with’ the UCMJ.”
Page 43 of 58

II.
Exclusion of the Defendant: The military commission procedure also provides
that when classified or otherwise sensitive information is introduced in court, the
defendant (but not his counsel) may be excluded from the proceedings. Invoking
precedent from civilian proceedings, Judge Robertson found that the UCMJ
provides that the defendant always has a right to be present, and that “such a
dramatic deviation from the confrontation clause could not be countenanced in any
American court.”
The PATRIOT Act
A.
World’s Greatest Acronym? The full title is the “Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001.” Pub. L. No. 107-56, 115 Stat. 272 (2001).
B.
Key Provisions

“The Wall”: The Act eliminates many barriers to information sharing between
domestic law enforcement (the FBI and Justice Dept.) and foreign intelligence
agencies (the CIA, etc.). For example, grand jury information may now be
disclosed to other government officials without a court order.

FISA Warrants: It’s easier to get a surveillance warrant under the Foreign
Intelligence Surveillance Act (one need show probable cause only that the target is
an agent of a foreign power and the purpose is intelligence gathering). The Act
allows law enforcement to obtain FISA warrants as long as foreign intelligence is a
“significant purpose” – making it easier to use that information for law
enforcement as well.

High Tech Surveillance: The Act provides authority under the FISA for pen
registers, trap and trace devices, and extends them to e-mail and Internet
monitoring as well as phones. And it allows wiretap warrants to apply to a person
rather than a particular phone.

Money Laundering: The Act requires banks, etc., to monitor and report
suspicious transactions, and grants government access to credit records without
notifying the target.

Detention Authority: The Act allows detention for non-citizens for only seven
days without bringing charges, but allows the Attorney General to detain suspected
terrorists indefinitely if they can’t be sent back to their home countries.

Designation of Terrorist Groups: The Act allows a much broader category of
groups to be designated as terrorist organizations than previously.
Page 44 of 58
HANDOUT 16 – PREEMPTION AND FOREIGN AFFAIRS STATUTES
I.
Introduction to Preemption
A.
The Supremacy Clause: “This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which shall be made,
under Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” U.S. Constitution, Art. VI.
B.
The Importance of Preemption
C.
(1)
Preemption is the classic problem of concurrent power. That is, it is the
doctrine governing the relation between federal and state law when a particular
subject falls within the regulatory jurisdiction of each.
(2)
Preemption directly impacts the States’ ability to provide beneficial regulation
and opportunities for political participation to their citizens. As such, it goes to
the heart of the States’ ability to maintain themselves as viable political
communities.
(3)
Preemption is the single most common constitutional claim, especially in the
commercial litigation context.
Three Kinds of Preemption
(1)
Express preemption in the statutory text.
(2)
Field preemption where the scheme of federal regulation is so pervasive that
we infer Congress intended no state supplementation.
(3)
Conflict preemption where compliance with both federal and state regulations
is a "physical impossibility," or where state law "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.
There may also be a fourth kind:
(4)
Frustration preemption occurs where state law does not conflict directly with a
federal statute, but it would unduly frustrate the purposes of that statute to
permit concurrent state regulation.
D.
The Primacy of Congressional Intent: Under modern doctrine, these different
categories are simply aids in answering the critical question: Did Congress intend to
preempt state law?
E.
Historical Development
Early Cases: The Court held that federal law was supreme in the event of a conflict,
but did not recognize any doctrine that the existence of federal legislation precluded
the States from passing their own laws, at least where no conflict occurred.
Late 19th Century: The Court begins to suggest that when Congress legislates, it ousts
the States of their authority in that area. But the cases are inconsistent; no state laws
are actually struck down.
Early 20th Century: The rule in this period is automatic field preemption whenever
Congress acts. Many statutes are struck down during this period.
Page 45 of 58
Post-New Deal:: Beginning in the 1930s, the Court focuses on whether or not
Congress intended to preempt state law. And it develops a "presumption against
preemption" which is fairly protective of state law. See Rice v. Santa Fe Elevator Co.,
331 U.S. 218 (1947).
F.
II.
Preemption of State Law by Foreign Affairs Statutes
A.
B.
The Presumption Against Preemption: “We start with the assumption that the
historic police powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.” Rice, 331 U.S. at 230.
Interpretive Presumptions in Foreign Affairs Preemption Cases
1.
Pro-Preemption? Hines: Construe ambiguous federal statutes in favor of
preemption in cases implicating foreign affairs concerns.
2.
No Presumption? (United States v. Locke, 529 U.S. 89 (2000) [B&G 291]):
Where state laws “bear upon national and international maritime commerce . . .
there is no beginning assumption that concurrent regulation by the State is a
valid exercise of its police powers. . . . No artificial presumption aids us . . . .”
3.
Anti-Preemption? De Canas (?): Construe ambiguous federal statutes against
preemption, even in foreign affairs cases. See also Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) (stating that the presumption applies “in all cases”).
The Immigration Cases
C.
1.
Hines v. Davidowitz, 312 U.S. 52 (1941) [B&G 276]: Court strikes down PA
Alien Registration Act on grounds that it “stands as an obstacle” to federal
alien policy.
2.
De Canas v. Bica, 424 U.S. 351 (1976) [B&G 280]: Court upholds CA statute
prohibiting employment of illegal aliens as a valid supplement to federal
immigration policy.
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) [B&G 283]: Court
strikes down MA Burma law, imposing a disadvantage in competition for state
contracts on companies doing business in Burma, based on opposition to Burmese
suppression of human rights.
1.
2.
3.
Three grounds for challenging the statute

statutory preemption

dormant foreign commerce clause

dormant foreign affairs preemption (Zschernig)
The Federal Burma Law

imposes some sanctions

authorizes the President to impose further sanctions

directs President to pursue diplomatic avenues
Three distinct (kind of) preemption arguments
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
Congress wanted the President to have flexibility.

Congress meant to limit economic pressure to a specific range.

The state law undermines President’s ability to speak for the nation with
“one voice.”
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HANDOUT 17 – TREATY AND DORMANT FOREIGN AFFAIRS PREEMPTION
I.
Treaty Preemption
A.
Differential Treatment in the Supremacy Clause: Art. VI provides that “This
Constitution, and the Laws of the United States which shall be made in Pursuance
thereof” are supreme; on the other hand, it says “and all Treaties made, or which shall
be made, under Authority of the United States, shall be the supreme Law of the Land.”
The difference is designed to “grandfather” pre-1789 treaties, such as the Treaty of
Paris.
II.
B.
The Basic Rule: Treaties are supreme federal law and therefore have the same
preemptive effect as statutes.
C.
Self-Execution: Treaties are directly preemptive only if they are self-executing;
otherwise, their preemptive scope is determined by the implementing legislation.
D.
Default Rules: It is unclear whether the traditional “presumption against preemption”
applies in interpreting treaties. Compare El Al Israel Airlines v. Tseng, 525 U.S. 155,
175 (1999) [B&G 299] (suggesting that it does not), with Guaranty Trust Co. v.
United States, 304 U.S. 126, 143 (1938) (“Even the language of a treaty wherever
reasonably possible will be construed so as not to override state laws.”).
Dormant Foreign Affairs Preemption
A.
Zschernig v. Miller, 389 U.S. 429 (1968) [B&G 300]: The Court strikes down an OR
probate law requiring state judges to permit inheritance under OR wills by foreign
nationals only if the foreign heirs can take the Oregon property "without confiscation."
The Court says the statute interferes with the conduct of foreign relations by offending
other countries.
B.
Some Not-So-Hypotheticals
C.

CA’s Proposition 187 restricted government benefits for undocumented aliens and
brought protests and threats from Mexico.

Texas’s execution of Karla Faye Tucker inspired not only a mediocre Indigo Girls
song but also protests from the European Union.

NYC chose to rename the street corner across from the Nigerian mission to the
U.N. after Kudirat Abiola, the slain wife of a Nigerian dissident. See Opusunju v.
Giuliani, 669 N.Y.S.2d 156, 157 (Sup. Ct. 1997).

Instead of sanctioning companies doing business in Burma, the Massachusetts
legislature instead simply passes a resolution condemning the Burmese junta and
calling for the release of Suu Kyi from house arrest.

The Texas capitol cafeteria decides to rename all “French fries” as “Freedom
Fries” to protest French obstructionism on Iraq.
Approaches

effects tests
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
D.
purpose tests
The Dormant Foreign Commerce Clause
1.
2.
3.
The Domestic Rules

State laws that discriminate against out-of-staters are virtually always
unconstitutional.

State laws that simply burden interstate commerce – even though they
apply to both in-staters and out-of-staters alike – are subject to a balancing
test. In recent years that test has been pretty permissive.
Differences in Foreign Commerce Cases

Courts purport to apply the discrimination and balancing tests more
rigorously when foreign commerce is at stake.

Cases like Japan Line and Barclays seem to recognize an independent
aspect of dormant commerce doctrine in foreign commerce cases. This is
the notion that state law must not prevent the federal government from
speaking with “one voice” on foreign affairs.
Barclays Bank v. Franchise Tax Board of California, 512 U.S. 298 (1994)
[B&G 305]: The Court rejects a “one voice” challenge to CA’s “worldwide
combined reporting” method of computing tax liability for multinational
corporations. The opinion suggests that “one voice’ is not that stringent a
requirement.
E. American Insurance Assn. v. Garamendi, 539 U.S. 396 (2003) [Supp. 42]: The
Court holds that CA’s Holocaust Victims Insurance Relief Act (HVIRA) is
preempted by federal policy to pursue a different strategy in negotiating the
satisfaction of Holocaust claims.

Extends Crosby rationale to areas where there is no federal statute at all.

Invokes Zschernig, but for proposition that state law in conflict with federal policy
is void.

Seems to consider weights of state and federal interests, but weighs state interests
less heavily outside of “traditional” state fields.
Page 49 of 58
HANDOUT 18 – TREATIES, SELF-EXECUTION, AND THE LAST-IN-TIME RULE
I.
II.
Big Issues About Treaties

What is the relationship between treaties and the rest of domestic law?

Are there any limits on the kinds of treaties that can be made?

Is the treaty process the only way of forming binding international agreements?
Self-Executing and Non-Self-Executing Treaties
A.
Basic Definition: A self-executing treaty can be enforced in a court without further
action by the government to implement the treaty.
B.
The Supremacy Clause: “[A]ll Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges
in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.”
C.
D.
Foster v. Neilson, 27 U.S. (2 Pet.) 253) (1829) [B&G 339]
1.
The British Rule: Treaties are never self-executing but always require further
action by Parliament.
2.
America’s “Different Principle”: Under the Supremacy Clause, a treaty is
“the law of the land” and therefore “equivalent to an act of the legislature.”
3.
The Exception: Treaties can be non-self-executing if the parties intend their
obligation to be contractual in nature rather than to create binding domestic
law.
Multifactor Tests: We have two:
Postal: Courts look at


the purposes of the treaty and the objectives of its creators;
the existence of domestic procedures and institutions appropriate for direct
implementation;

the availability and feasibility of alternative enforcement methods; and

the immediate and long-range consequences of self- or non-self-execution.
Frolova: Courts look at

the language and purposes of the agreement;

the circumstances surrounding its execution;

the nature of the obligations imposed by the agreement;

the availability and feasibility of alternate enforcement mechanisms;

the implications of permitting a private right of action; and
Page 50 of 58

E.
The Four Doctrines of Self-Executing Treaties
1.
Intent: A treaty might be non-self-executing simply because the parties
intended its implementation to be accomplished by subsequent legislation.
2.
Justiciability: A treaty might not be self-executing for the different reason
that it doesn’t create obligations that can be enforced directly by courts. This
might be true for several reasons:
3.
4.
F.
III.
the capability of the judiciary to resolve the dispute.

The treaty might be “precatory” – that is, it might set forth aspirations
rather than actual binding obligations.

The treaty might also be so indeterminate that courts can’t apply it.

The courts might “abstain” from enforcing a treaty because alternate
enforcement mechanisms are available.
Lack of Constitutional Power: A treaty might not be self-executing for the
reason that the treaty-makers lack constitutional power to actually implement
the obligation they’ve agreed to. Some possible examples:

treaties requiring appropriation of money

treaties outside federal power vis a vis the states

treaties that violate the Bill of Rights
Remedies: Courts often talk about self-execution in terms of whether private
individuals can enforce a treaty. But note that the lack of a private right of
action is only important if the case is in a certain posture; the treaty may still be
raised, for example, as a defense.
Continuing Controversy over Default Rules: Note Prof. Yoo’s view (p.348) that the
Constitution actually requires domestic implementing legislation before treaties can
have domestic effect. He says there should at least be a presumption against selfexecution rather than in favor. Most international law scholars disagree.
The Last in Time Rule
A.
B.
The Basic Rule: In domestic law, treaties are equivalent to statutes. That means that

a subsequent statute repeals a treaty, see Whitney v. Robertson, 124 U.S. 190
(1888) [B&G 348], and

a subsequent treaty repeals a statute, see Cook v. United States, 288 U.S. 102
(1933) [B&G 350].
The Harmonization Canon: A strong rule of interpretation urges courts to harmonize
statutes and treaty obligations wherever possible. So it’s rare that statutes are actually
found to repeal prior treaties. At least two sources:

the Charming Betsy canon holds that federal statutes should generally be construed
to be consistent with international law, including not only treaties but also
customary law; and

repeals of prior statutes by implication are not favored.
Page 51 of 58
C.
The International Plane: As a matter of international law, a subsequent statute
generallydoesn’t affect the binding character of treaties on the international plane.
HANDOUT 19 – DELEGATION, FEDERALISM AND CONDITIONAL CONSENT
I.
II.
Congress vs. the Treaty-Makers
A.
Edwards v. Carter, 580 U.S. 1055 (D.C. Cir. 1978) [B&G 359]: The Court upholds a
treaty returning the Panama Canal to Panama against a challenge that U.S. property
may be ceded to another country only by a statutory exercise of the Property Power in
Art. IV.
B.
Limits on Treaties? The Edwards court does suggest three examples of things that
can only be done by the whole Congress and not by treaty:

appropriations

imposing criminal liability

declaration of war
Federalism Limits
A.
The Restatement (Second): The U.S. may enter into international agreements so long
as “the matter is of international concern.” § 117(1)(a) (1965).
B.
The Restatement (Third): “Contrary to what was once suggested, the Constitution
does not require that an international agreement deal only with ‘matters of
international concern.’ . . . International law knows no limitations on the purpose or
subject matter of international agreements, other than that they may not conflict with a
peremptory norm of international law. States may enter into an agreement on any
matter of concern to them, and international law does not look behind their motives or
purposes in doing so.” § 302, cmt. c (1986).
C.
International Convention on the Rights of the Child
D.

Article 3 sets out a “best interests of the child” standard for all governmental
actions concerning children.

Article 6 confers an “inherent right to life.”

Article 9 provides pretty specific requirements for abuse and neglect proceedings.

Article 28 confers a right to education and requires compulsory public primary
education.
Four Approaches to the Treaty Power

The Treaty Power is limited by the same limitations that apply to Congress’s
legislative powers.

Congress may implement treaties by legislation, but treaties are limited to subjects
of appropriate international concern.
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E.

The Treaty Power confers the power to make binding commitments on the
international plane, but not internal legislative power.

There just aren’t any substantive limits on the Treaty Power. The only federalism
check is Senate ratification.
The Bricker Amendment
Sec. 1: “A provision of a treaty which conflicts with this Constitution shall not be of
any force or effect.”
Sec. 2: “A treaty shall become effective as internal law in the United States only
through legislation which would be valid in the absence of treaty.”
III.
Conditional Consent
A.
B.
Some Terms

Reservations refuse to consent to particular treaty terms.

Understandings are interpretive statements that tell what we think the treaty
means on certain points.

Declarations are simply “statements of purpose, policy, or position related to
matters raised by the treaty” but which don’t purport to limit it or change it.
The International Covenant on Civil and Political Rights

rights to life, especially in the context of limiting capital punishment

rights against torture and cruel or inhuman punishment

rights to liberty and personal security, which include some criminal procedure-type
protections

rights to privacy in the family and the home

rights to freedom of thought, conscience, and religion

a prohibition on incitement of national, racial or religious hatred

a general guarantee of equal protection of the law.
“[T]he law shall prohibit any discrimination . . . on any ground such as race,
colour, se, language, religion, political or other opinion, national or social origin,
property, birth or other status.” (emphasis added)
C.
RUDs to the ICCPR
The reservations include:

the prohibition on propaganda and advocacy of racial hatred doesn’t trump First
Amendment rights of speech and association;

we get to execute anyone we want (other than pregnant women) even if they were
under 18 when they committed murder; and

Article 7 – on torture and inhumane punishment – doesn’t extend any further than
the Fifth, Eighth, and Fourteenth Amendments.
Page 53 of 58
The understandings say

the equal protection principle only requires rational basis review, and it doesn’t
cover disparate impact discrimination; and

implementation of some treaty provisions may have to be done by the States,
where the federal government lacks power to act.
The declaration is that the ICCPR is not self-executing.
A proviso says that nothing in the Covenant requires or authorizes legislation that is
unconstitutional under our domestic constitution.
D.
Invalidity of RUDs: RUDs are invalid if they run counter to the “object and purpose” of the
treaty. See Restatement; Geneva Convention.
E.
Effect of Invalidity: At least two possibilities:

The U.S. is simply not a party to the treaty.

The U.S. remains bound to the treaty without the reservation. (Human Rights
Committee position)
Page 54 of 58
HANDOUT 20 – EXECUTIVE AGREEMENTS AND SUPRANATIONAL DELEGATIONS
I.
II.
Types of Executive Agreements

Congressional-executive agreements: agreements concluded by the President with either
the advance authorization or the subsequent approval of a majority of both houses of
Congress.

Treaty-authorized executive agreements: agreements authorized by a pre-existing treaty
ratified under Art. II.

Sole executive agreements: agreements entered into by the President alone.
Congressional-Executive Agreements
A.
Examples: Executive agreements outnumber treaties by a factor of over 10 to 1;
most executive agreements are of the congressional-executive type. Some prominent
examples:

The Bretton Woods Agreement

SALT I

NAFTA

WTO
B.
The Interchangeability Thesis: The Restatement (Third) says that the “prevailing
view” is that congressional-executive agreements “can be used as an alternative to the
treaty method in every instance.” § 303 cmt. e.
C.
The Basic Case Against Interchangeability
D.

Art. II’s treaty clause is exclusive.

Separation of Powers: Giving the President the option to choose whichever
process (treaty ratification or ratification by statute) is easiest augments his power
vis a vis Congress.

Federalism: The 2/3 ratification requirement in the Senate gives the States a
powerful check on the treaty power. This is particularly important if you don’t
think that the treaty power can be easily limited in other ways (e.g., subject matter
limits).
The Basic Case For Interchangeability

Everyone concedes not all agreements have to be ratified as treaties. So where do
you draw the line?

Art. II lacks any exclusive language.
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III.
E.
Ackermania: Prof. Bruce Ackerman has argued that although the original
understanding of the Treaty Clause was that it was the exclusive means of achieving at
least important international commitments, that understanding changed in the 1940s as
a result of World War II and the New Deal. We should therefore treat the Constitution
as having been amended at that time so that it now supports interchangeability.
F.
Two Speculations: If we accept the basic notion that congressional-executive
agreements are legitimate, we still might stop short of interchangeability in two
respects:

If Congress is relying on its Art. I powers, then at least Missouri v. Holland
shouldn’t apply – that is, Congress should only be able to ratify agreements that are
within its enumerated powers to enact as statutes.

If the treaty power is the power to create binding international obligations, while
the statute power is the power to legislate domestically, then it’s not obvious that a
congressional-executive agreement should have the same international law
implications as a treaty. In other words, one might say that it’s fine for Congress
to ratify the NAFTA by statute, and when it does that the NAFTA has domestic
effect. But one might still insist that the U.S. isn’t bound by the NAFTA as a
matter of international law because it hasn’t been ratified as a treaty.
Sole Executive Agreements
A.
United States v. Belmont, 301 U.S. 324 (1937) [B&G 421]: The Court enforces the
Litvinov Agreement with the U.S.S.R. concerning assumption of Soviet claims against
U.S. parties. Two salient points:

The Court holds for the first time that sole executive agreements preempt contrary
state law.

The Court does not question the validity of the sole executive agreement form or
suggest any limits on its scope.
B.
Restraint in Practice: The most interesting thing about sole executive agreements
may be that they are not used more often as a means a circumventing political
opposition in the Senate or Congress as a whole. This is probably evidence of strong
political checks on the President in this area.
C.
The Case-Zablocki Act requires the Executive to tell Congress about the agreements
it enters into.
Page 56 of 58
HANDOUT 21 – CUSTOMARY INTERNATIONAL LAW
I.
What is Customary International Law?
International legal norms that result “from a general and consistent practice of states followed
by them through a sense of legal obligation.” Restatement (Third) of the Foreign Relations
Law of the United States § 102(2) (1987).
A.
Two components


state practice
opinio juris – that is, the belief that states engaging in the relevant practice
do so out of a sense of legal obligation.
As a practical matter, opinio juris tends to be inferred from practice. But see (C)
below.
B.
Exception for “persistent objectors”: “A state that indicates its dissent from a
practice while the law is still in the process of development is not bound by that rule
even after it matures.” Restatement (Third), § 102 cmt. d.
C.
Examples of Relevant State Practice

unratified treaties

United Nations General Assembly resolutions

diplomatic correspondence

writings of international legal scholars
Query whether these sources indicate practice or merely opinio juris.
II.
The Modern Position
“The modern view is that customary international law in the United States is federal law and
its determination by the federal courts is binding on the State courts.” Restatement (Third), §
111 Reporters’ Note 3.
A.
Antecedents – The Paquete Habana, 175 U.S. 677 (1900) [B&G 427]: The Court
applies CIL to a prize case. “International law is part of our law, and must be
ascertained and administered by the courts of justice of appropriate jurisdiction . . . .
[W]here there is no treaty, and no controlling executive or legislative act or juricial
decision, resort must be had to the customs and usages of civilized nations.”
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B.
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) [B&G 430]: The Second Circuit
holds that the Alien Tort Statute is within Art. III because the law of nations – which
forms the basis of Filartiga’s ATS claim – “has always been part of the federal
common law.”
C.
Implications
D.

CIL preempts contrary state law.

CIL supports federal question jurisdiction in the federal courts.
Variants

CIL binds the President, absent contrary authority from Congress.

New rules of CIL trump prior-enacted federal statutes.

Fundamental jus cogens norms trump U.S. constitutional provisions.
These positions are far more controversial within the international law academy than
the basic modern position.
E.
When It Might Matter
1.
Preemption: CIL is sometimes argued to invalidate certain state practices,
such as the juvenile death penalty.
2.
Defenses: CIL may provide a defense to a state law claim, such as a
diplomatic immunity defense to a state tort suit.
3.
ATCA Suits: 28 U.S.C. § 1350 confers federal jurisdiction in “a civil action
by an alien for a tort only, committed in violation of the law of nations.” The
question is whether a cause of action arising under CIL “arises under” federal
law for purposes of Art. III.
Note that most former ATCA suits can now be brought under the Torture
Victim Protection Act of 1991, which explicitly incorporates CIL norms into
federal law and creates a federal cause of action.
III.
The Critique of the Modern Position
A.
The Supremacy Clause: Art. VI lists three ways of making supreme federal law:
constitutional amendments (under Art. V); treaties (under Art. II); and statutes (under
Art. I). While Art. I does give Congress the power to “define and punish” offenses
against the law of nations, that power requires a legislative act.
B.
History: CIL was “general” law in the 18th and 19th centuries; the Framers did not
assume that it was federal in nature.
C.
Erie: The Supreme Court’s holding in Erie that federal courts generally cannot make
federal law promotes three constitutional values:

separation of powers – courts shouldn’t make law

democracy – courts (and the CIL-making process) are undemocratic

federalism – state law should be supplanted only by the action of Congress,
where the states are represented
Page 58 of 58
IV.
D.
The New Federal Common Law: The modern position on CIL – that it is always
federal law – is inconsistent with the Kimbell Foods approach to federal common law.
Strong federal interests in foreign affairs might justify federal common lawmaking
power, but we would still have to ask whether state law can apply as a matter of
discretion.
E.
Bibliography: Whole forests have died, but the following articles are a good place to
start: Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as
Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815
(1997) (just like it sounds); Harold Hongju Koh, Is International Law Really State
Law?, 111 HARV. L. REV. 1824 (1998) (responding to B&G); Ernest A. Young,
Sorting Out the Debate Over Customary International Law, 42 VA. J. INT’L L. 365
(2002) (shameless plug).
Alternatives
A.
Express Authorization or Nothing: We might say that federal courts can apply CIL
only if they are authorized to do so by either state law or a federal statute.
B.
Customary Law as General Law: As under Swift, CIL has no preemptive force and
can’t create federal question jurisdiction, but it is available to be applied by either state
or federal courts where ordinary choice of law principles favor its application.
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