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Abstract:
A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. Although President Bush has challenged more statutory provisions in signing statements than prior administrations have, his signing statements are similar in many respects to the signing statements issued by prior presidents, such as President Clinton. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning.

Abstract:
This essay defends the constitutional validity of the Military Order issued by President Bush on November 13, 2001, which authorizes the establishment of military commissions to try certain non-citizens involved in terrorism. The essay begins by describing the ways in which military commissions have been used throughout U.S. history. It then explains why President Bush had statutory authority to issue the Military Order, and why he probably also had independent constitutional authority to do so as Commander in Chief. Although the Order was not preceded by a congressional declaration of war, the essay argues that such a declaration is not constitutionally required in order for the President to exercise his constitutional or statutory war powers, including his power to establish military commissions. Finally, the essay argues that the September 11 terrorist attacks, to which the Order was a response, violate the laws of war and therefore fall within the jurisdiction of military commissions.

military commissions, military tribunals, commander in chief, declaration of war, terrorism, laws of war, armed conflict

Abstract:
The U.S. treaty-makers have consistently attached conditions to their consent to modern human rights treaties, in the form of reservations, understandings, and declarations ("RUDs"). Through these RUDs, the treatymakers have sought to limit their consent to international obligations that the United States is constitutionally and politically able to comply with, and to ensure that these obligations are implemented in a manner consistent with principles of separation of powers and federalism. The conventional wisdom among scholars is that the RUDs are invalid under international law and U.S. domestic law, and are harmful to the international human rights movement. This Article challenges the conventional wisdom about RUDs. It argues that the RUDs serve as a useful bridge between isolationists who want to preserve the United States' sovereign prerogatives, and internationalists who want the United States to increase its involvement in international institutions -- a political divide that has had a debilitating effect on U.S. participation in international human rights regimes since World War II. In addition, RUDs help reconcile fundamental changes in international law with the requirements of the U.S. constitutional system. The RUDs achieve these ends in ways that are valid under both international and domestic law.

Abstract:
Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This "modern position" came under attack by so-called "revisionist" critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of self-executing federal common law. As this Article explains, the decision in Sosa did not in fact embrace the modern position, and, indeed, is best read as rejecting it. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (i.e., the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute ("ATS"), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa's rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely admiralty and interstate disputes), and gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS; application of CIL to the war on terrorism; and the use of foreign and international materials in constitutional interpretation.

customary international law, federal common law, alien tort statute

Abstract:
The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal materials, litigants and scholars are increasingly claiming that the United States' use of the juvenile death penalty violates international law. This Article examines the validity of this claim, from the perspective of both the international legal system and the U.S. legal system.

Based on a detailed examination of the United States' interaction with treaty regimes and international institutions since the late 1940s, the Article concludes that the international law arguments against the juvenile death penalty have significant weaknesses. As the Article documents, for a number of reasons the United States has consistently declined to consent to treaty provisions restricting the juvenile death penalty, and it has consistently declared the human rights treaties that contain such restrictions to be non-self-executing. In addition, since at least the mid-1980s, the United States has persistently objected to - and thereby legally opted out of - any customary international law restriction on the juvenile death penalty.

The Article also argues that, even if these international law arguments were more persuasive, they would not provide a basis for relief in U.S. courts. For separation of powers reasons, courts properly will decline to apply international law to override the considered choices of the President and Senate in their ratification of treaties. In addition, because of concerns relating to both separation of powers and federalism, courts properly will decline to apply customary international law to override state criminal punishment, especially when (as is the case here) the political branches have expressly declined to do so by treaty. This potential gap between evolving international law norms and U.S. judicial enforcement is less disturbing than some commentators appear to assume - it simply means that the juvenile death penalty issue, like other difficult issues of social policy in the United States, must be resolved through U.S. democratic and constitutional processes.

Although important on its own terms, the juvenile death penalty issue may also have broader implications for the relationship between U.S. law and international human rights law. Litigants and scholars have met with at least modest success in attempting to have international human rights law incorporated into the U.S. legal system. This success, however, has primarily come in the context of civil lawsuits seeking damages for human rights abuses committed in foreign countries. Increasingly, litigants and scholars are seeking to build on this success and persuade U.S. courts to apply international human rights law internally as a basis for overriding domestic laws and practices. The juvenile death penalty has become a central focus of this effort, and the way in which the international law challenges are resolved in this context may have a significant impact on the viability of other attempts to "domesticate" international human rights law.

death penalty, treaty reservations, self-execution, customary international law, juveniles, cruel and unusual

Abstract:
This essay considers the constitutionality of both the habeas corpus and Geneva Convention provisions in the Military Commissions Act of 2006 (MCA). The MCA purports to preclude federal court jurisdiction over habeas corpus applications filed by detainees in the war on terrorism, providing them instead with D.C. Circuit review of their status determinations and military commission judgments. The MCA also has a number of provisions that either restrict judicial application of the Geneva Conventions or purport to interpret those Conventions. With respect to the habeas restriction, the essay concludes that the Supreme Court is likely to find that the detainees at the Guantánamo Bay naval base have a constitutional right of habeas corpus review, and that this right has not been validly suspended by the MCA. Nevertheless, depending on how they are interpreted, the provisions allowing for D.C. Circuit review could suffice to preserve the constitutional right. With respect to the MCA's Geneva Convention provisions, the essay concludes that Congress has the authority to decide that the United States will implement the Conventions through military regulations, congressional oversight of the military, criminal law, and diplomatic relations rather than through private judicial enforcement, and that a fair reading of its intent in enacting the MCA is that it has exercised this authority. In addition, while the provisions in the MCA that set forth particular interpretations of the Geneva Conventions are unlikely to be treated by courts as dispositive, the essay concludes that courts should give substantial deference to Congress's and the Executive's shared interpretation of the Conventions.

military commissions, habeas corpus, geneva conventions, self-execution

Abstract:
The so-called Vesting Clause of Article II of the Constitution, which provides that The executive Power shall be vested in a President of the United States of America, stands in apparent contrast with the Article I Vesting Clause, which provides that All legislative Powers herein granted shall be vested in a Congress of the United States. . . . . This textual difference, usually bolstered with historical materials, has long undergirded the claim that the Article II Vesting Clause implicitly grants the President an array of residual powers, especially foreign affairs powers, that are not specified in the remainder of Article II. This argument, which we call the Vesting Clause Thesis, was famously advanced by Alexander Hamilton in his first Pacificus essay defending President Washington's 1793 Neutrality Proclamation.

In recent years, the Vesting Clause Thesis has gained newfound popularity. White House officials were apparently prepared to deploy the argument in support of the Bush Administration's authority to use military force against Iraq had Congress not expressly granted such authority. Professors Saikrishna Prakash and Michael Ramsey recently defended the Vesting Clause Thesis at length in an important article in the Yale Law Journal. Professor John Yoo has invoked the Thesis in a number of recent articles as support for a variety of alleged presidential foreign affairs powers. The Thesis also has received recent support from Professor Phillip Trimble, and its historical account of executive foreign affairs authority is similar to the account developed in a thoughtful recent book by Professor H. Jefferson Powell.

This Article critiques the Vesting Clause Thesis on both textual and historical grounds. As for text, the difference in wording between the Article I and Article II Vesting Clauses can be explained on a number of other plausible grounds and need not be read as distinguishing between a limited grant of legislative powers and a plenary grant of executive power. As for history, the narrative that is offered by proponents of the Vesting Clause Thesis has two central features. First, it is a story of continuity, whereby European political theory is carried forward, relatively unblemished, into American constitutional design and practice. Second, the narrative relies on what could be called executive power essentialism - the proposition that the Founders had in mind, and intended the Constitution to reflect, a conception of what is naturally or essentially within executive power. We argue that this historical narrative is wrong on both counts. Among other things, the narrative fails to take account of complexity within eighteenth century political theory, the experience of state constitutionalism before 1787, and the self-conscious rejection by the Founders of the British model of government. The narrative also understates the degree to which the constitutional Founders were functionalists, willing to deviate from pure political theory and essentialist categories in order to design an effective government.

Executive power, foreign affairs, vesting clause

Abstract:
In Ex parte Milligan, decided a year after the end of the Civil War, the Supreme Court held that the U.S. military had lacked the constitutional authority during the war to try U.S. citizens living in Indiana before a military commission. Milligan is often cited as a rare and admirable instance in which the Supreme Court invalidated Executive action during wartime in order to protect civil liberties, and it is frequently invoked in challenges to government action in the current war on terrorism. The precedential effect of Milligan, however, is far from clear. Part of the uncertainty stems from the decision's apparent inconsistency with widespread military practices during and immediately after the Civil War, including most notably the use of military commissions to try thousands of individuals not formally associated with the Confederate army. Probably because of the particular way in which the government argued the Milligan case - focusing on the bounds of martial law rather than on military jurisdiction over violations of the laws of war - the Court in Milligan did not discuss this widespread military commission practice, and it is unclear to what extent the Court meant to repudiate it. The Supreme Court's subsequent treatments of Milligan only add to the uncertainty about its scope. The Court has construed Milligan as applying only to the military detention and trial of non-belligerents, but neither Milligan nor the subsequent decisions provide a clear line for distinguishing between belligerents and non-belligerents. One possible approach would be to limit military jurisdiction to individuals covered by the international laws of war, but one problem with this approach is that the petitioners in Milligan were in fact charged with and convicted of violating the laws of war. The difficult issues of military jurisdiction that were present during the Civil War turn out to be with us still today.

military commissions, habeas corpus, war on terrorism

Abstract:
This Article considers the constitutional implications of U.S. delegations of authority to international institutions. Since World War II, there has been a vast growth in the number and importance of international institutions. Although some of these institutions are merely forums for discussion and negotiation, many of them exercise judicial, legislative, regulatory, investigative, or prosecutorial authority. Despite its isolationist reputation, and despite recently announcing that it would not become a party to the International Criminal Court, the United States has committed itself to many of these institutions. By virtue of these commitments, the United States has consented to have international institutions make certain decisions, and take certain actions, that can affect the United States' rights and duties under international law and, in some instances, the enforceability of U.S. domestic law. Although the number and extent of future U.S. commitments will likely vary depending on the presidential administration, the general trend internationally - as illustrated most dramatically by developments the European Union - is towards vesting ever-increasing authority in international institutions.

Without prejudging their validity, transfers of authority by the United States to international institutions could be said to raise "delegation concerns." These concerns relate to democratic accountability, shifts in the balance of power between the federal branches, and erosion of the U.S. system of federalism. By transferring legal authority from U.S. actors to international actors - actors that are physically and culturally more distant from, and not directly responsible to, the U.S. electorate - these delegations may entail a dilution of domestic political accountability. This accountability concern may be heightened by the lack of transparency associated with some international decisionmaking, which in turn may increase monitoring costs and, relatedly, the potential for what economists call "rent-seeking." In addition, transfers of authority to international institutions may enhance the power of one branch of the federal government relative to the others. Specifically, these transfers may enhance the relative power of the Executive Branch, both because they often delegate the powers of other branches, and because the United States is represented in these institutions by Executive Branch agents. Finally, delegations of authority to international institutions - as with the expansion of international law more generally - have the potential to erode U.S. federalism by enhancing the power of the entire federal government vis-a-vis the states. Even if these effects seem relatively modest with respect to particular delegations, the cumulative effect may be more problematic.

Although these delegation concerns are not entirely new, they have become much more pronounced in recent years. In the domestic context, similar concerns about accountability and aggrandizement of power are addressed by a variety of separation of powers and federalism doctrines. I will argue in this Article that, whether viewed from a formal or functional perspective, these structural constitutional doctrines are relevant to international delegations. I will also argue that at least some of the constitutional concerns associated with these delegations can be addressed by treating the decisions and actions of international institutions as "non-self-executing" - that is, as not creating enforceable federal law within the United States. As I will explain, this has in fact been the approach intuitively followed by U.S. courts in recent years when confronted with delegation concerns, and it also is an approach increasingly mandated by the U.S. treatymakers and Congress.

international institutions, delegation of authority, separation of powers, nondelegation doctrine, non-self-execution

Abstract:
This article defines and clarifies the concept of international delegation from both a legal and social science perspective. An international delegation, the article explains, involves a grant of authority by two or more states to an international body to make decisions or take actions. After defending this definition, the article describes the types of international bodies to which states may grant authority. To capture the multilayered nature of international delegation, the article considers grants of authority not only to bureaucracies, but also to collective bodies, sub-groups of states, and courts. The article then identifies eight types of authority that states may grant: legislative, adjudicative, regulatory, monitoring and enforcement, agenda-setting, research and advice, policy implementation, and re-delegation. Next, the article discusses how the extent of an international delegation can vary depending on its legal effect and the degree of independence of the international body. The article then considers some of the benefits and costs of international delegation in light of this typology. The article concludes with a discussion of some of the questions raised by the typology and its implications for further research.

delegation, international organizations, sovereignty

Abstract:
This article considers the relationship between the judicial and executive branches in foreign affairs cases. Traditionally, courts have given broad deference to the Executive branch in cases perceived as implicating foreign affairs. The Supreme Court's explanations for this broad deference have been phrased in sweeping terms, such as its description of the Executive branch as the "sole organ of the federal government in the field of international relations." Not surprisingly, academic commentators have been highly critical of the Supreme Court's explanations. The usual conclusion of these commentators is that courts should decide questions of foreign affairs law without substantial deference to the Executive branch and, in appropriate cases, should apply this law to override Executive branch action. These commentators almost invariably quote Marbury v. Madison for the proposition that it is the duty of the courts to determine the law, and they typically describe the deferential attitude of the courts as judicial abdication. I refer to this view as the "Marbury perspective."

I suggest in this article a different way of thinking about this issue, one that is based on the Chevron doctrine in administrative law. By its terms, the Chevron doctrine will apply to a growing number of foreign affairs cases, as administrative agencies increasingly confront issues such as whether to comply with international law, whether to apply federal regulations to foreign conduct, and whether and how to incorporate the decisions of international institutions. More generally, I argue that the "Chevron perspective" is a useful way of thinking about the relationship between the judicial and executive branches in foreign affairs cases. Among other things, the Chevron perspective focuses attention on the source of the law in question, something that turns out to be especially important in the foreign affairs area, given that it includes a number of non-traditional types of law. In addition, this perspective focuses attention on delegation of authority and thereby highlights claims of independent Executive lawmaking power - claims that often lurk beneath the surface of foreign affairs cases. Finally, the Chevron perspective offers a realistic alternative to the extremes of both blanket judicial deference and the pure Marbury "rule of law" approach. This is an attractive alternative, I contend, because it imposes legal constraints on the Executive branch while at the same time taking into account the realities of Executive branch expertise and authority in foreign affairs, the difficulty of drawing a sharp line between foreign affairs law and foreign affairs policy, and the increasingly international nature of our administrative state.

Abstract:
This essay considers the Supreme Court's decision last Term in Sanchez-Llamas v. Oregon against the backdrop of debates in the legal academy between "internationalists" and "constitutionalists." Internationalists consider the U.S. judiciary as part of a "global community of courts," emphasize the values of international cross-fertilization and harmonization, and view international law as directly permeating, and often having primacy within, the U.S. legal system. Constitutionalists, by contrast, distinguish between the international and domestic legal systems, emphasize constitutional structure as a limitation on the domestic effect of international law, and generally advocate political branch rather than judicial control over the domestic implementation of international legal obligations. Sanchez-Llamas was an important test case for the internationalist perspective. The petitioners there, with the support of internationalist scholars, were seeking to have the Supreme Court create domestic remedies to help effectuate compliance with a multilateral treaty, and to set aside traditional state law procedures in order to implement an interpretation of the treaty that had been adopted by an international tribunal. In rejecting this effort, the Court made clear that the Article III federal judicial power plays an important mediating role between the United States and the international legal system. Under the Court's approach, international law neither gives U.S. courts special powers nor limits their authority to decide cases, and U.S. courts are to consider the application of international law against the backdrop of traditional domestic remedial and procedural restrictions, even if the result is disuniformity in treaty interpretation. This envisioned mediating role for the federal judicial power has potential implications for a number of other areas of U.S. foreign relations law.

international court of justice, treaties, Article III, federalism

Abstract:
Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the "object and purpose" of the treaty until such time as it makes clear its intent not to become a party to the treaty. Some commentators further claim that this object and purpose obligation means that a nation that has signed a treaty is prohibited either from violating the treaty altogether or from violating the treaty's "core" or "important" provisions. Attaching legal obligations to the signing of a treaty, however, poses a constitutional issue for the United States because the U.S. Constitution divides the treaty power between the President and Senate, whereas only the President and his agents are involved in the signing of treaties. This constitutional issue has broad significance because, for a variety of political and other reasons, the United States often signs but fails to ratify treaties. The constitutional issue is not eliminated by the president's authority to conclude "sole executive agreements," since both constitutional structure and historical practice suggest that this authority is significantly narrower than the power of the President and Senate to jointly conclude treaties. The drafting history of Article 18, however, offers a partial solution to this difficulty, since it indicates that the object and purpose obligation was intended to prohibit only actions that would substantially undermine the parties' ability to comply with or benefit from a treaty after ratification, an obligation that has little relevance to the treaties for which signing obligations would be most constitutionally problematic.

treaties, executive agreements, unsigning, object and purpose

Abstract:
In 1789, Congress enacted the First Judiciary Act, a statute that established the federal courts and regulated their jurisdiction and structure. Section 9 of the Act, which regulated the jurisdiction of the federal district courts, provided, among other things, that these courts "shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." This paper considers Congress's likely intent in enacting this provision, known today as the Alien Tort Statute. In particular, the paper focuses on Congress's likely understanding of the relationship between the Alien Tort Statute and Article III of the Constitution. The paper concludes that Congress did not understand the Alien Tort Statute as creating a federal statutory cause of action. The paper also concludes that, although Congress expected that courts would apply the law of nations as a rule of decision in appropriate cases, it did not view the law of nations as part of the "Laws of the United States" referred to in Article III. As a result of these two conclusions, Congress would not have understood law of nations cases brought under the Alien Tort Statute as falling within Article III federal question jurisdiction. The federal question construction of the Statute adopted by the Second Circuit in its famous international human rights law decision, Filartiga v. Pena-Irala, is therefore wrong, at least as a matter of original statutory intent. Instead, the paper argues, Congress probably understood the Alien Tort Statute as part of its implementation of Article III alienage diversity jurisdiction. If so, either Congress mistakenly believed that suits between two aliens would fall within alienage diversity jurisdiction, or it believed that suits brought under the Alien Tort Statute would involve at least one U.S. defendant. The weight of the historical evidence, the paper argues, favors the latter conclusion.

Abstract:
This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered “unlawful combatants” and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.

terrorism, unlawful combatants, geneva conventions, detention, targeting

Abstract:
The Supremacy Clause of the U.S. Constitution states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the "supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v. Neilson, however, it has been understood that treaty provisions are enforceable in U.S. courts only if they are "self-executing." The legitimacy and implications of this self-execution requirement have generated substantial controversy and uncertainty among both courts and commentators. This Article attempts to clear up some of the conceptual confusion relating to the self-execution doctrine and, in the process, better explain the contemporary practice of the courts and political branches relating to treaty enforcement. To that end, the Article makes three claims. First, the Supremacy Clause does not by itself tell us the extent to which treaties should be judicially enforceable. Second, the relevant intent in discerning self-execution is the intent of the U.S. treatymakers (that is, the President and Senate), not the collective intent of the various parties to the treaty. Third, even if treaties and statutes have an equivalent status in the U.S. legal system in the abstract, there are important structural and functional differences between them that are relevant to judicial enforceability. These three claims are interconnected in that each of them reflects the fact that treaties have a dual nature, operating both within the domain of international politics as well as within the domain of law, a feature that is in turn relevant to the scope of their domestic judicial enforceability. The three claims are also complementary, in that each of them is best understood along with the other two, and together they present a relatively coherent explanation for the precedent and practice in the area. The Article concludes by discussing how the Supreme Court's recent decision in Medellin v. Texas, despite certain ambiguities, is generally consistent with the three claims.

treaties, self-execution, supremacy clause

Abstract:
For thirty years, international human rights litigation in U.S. courts has developed with little attention to a lurking doctrinal objection to the entire enterprise. The paradigm international human rights case involves a suit against a foreign government official for alleged abuses committed abroad under color of state law. A potentially dispositive objection to this litigation is foreign sovereign immunity. The Foreign Sovereign Immunities Act (FSIA) creates presumptive immunity for foreign states and has no exception that would cover human rights cases. Many courts have assumed that the FSIA has no relevance to human rights suits as long as they are directed against state officials rather than the state itself. Recently, however, courts have begun to reject this assumption, and the issue is now before the Supreme Court in Yousuf v. Samantar. This essay makes two contributions to the debate over whether the FSIA applies to suits against individual foreign officials. First, it shows that, contrary to what some courts have assumed, suits against individual officials fall naturally within the plain language of the FSIA’s immunity provisions. Second, it shows that the international law of state immunity, which is relevant to the proper interpretation of the FSIA in several ways, supports this construction. Combining these and other points, the essay concludes that the FSIA confers presumptive immunity in suits against state officials, including former state officials, for their official acts committed while in office, and that this immunity applies even in human rights cases. This conclusion, if accepted, would narrow the scope of human rights litigation in U.S. courts, but it would not affect other legitimate mechanisms of human rights accountability.

sovereign immunity, human rights litigation, alien tort statute

Abstract:
Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.

sovereign immunity, Ex parte Young, human rights litigation, Alien Tort Statute

Abstract:
This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUMF. Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the "necessary and appropriate force" that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists.

War, congressional authorization, terrorism, presidential authority

Abstract:
This article begins by describing some of the understandable attractions of international human rights litigation - to plaintiffs, judges, advocacy groups, and international law scholars - attractions that were evident in the seminal Filartiga case. The article then explores some of the potential costs associated with this litigation, including costs to U.S. foreign relations, democratic values, and the international system. These costs might not be worthy of serious concern if this litigation had been confined to the Filartiga-type case - that is, a suit against a low-level foreign official, accused of engaging in universally condemned conduct, in a situation unlikely to pose foreign relations difficulties for the United States. But for a variety of reasons, including the structure of federal civil litigation and the amorphous nature of the international legal materials, the litigation has expanded far beyond the Filartiga model. The article concludes that, given the uncertain policy tradeoffs associated with international human rights litigation, courts should at least await specific congressional authorization before allowing further expansions of this litigation.

human rights, international litigation, customary international law, Alien Tort Statute

Abstract:
The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts.

The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts.

The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law.

Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.

Abstract:
There has been substantial discussion in recent years of the status of international law in U.S. courts. Most of this discussion has focused on the circumstances under which international law -- whether conventional or customary -- should provide a substantive rule of decision in U.S. litigation. Another important role for international law, however, is in the interpretation of domestic law. Since early in this nation's history, U.S. courts have looked to international law in construing federal statutes. Perhaps most notably, they have followed the so-called "Charming Betsy canon" of construction, pursuant to which federal statutes are construed, where reasonably possible, so that they do not violate international law.

The Charming Betsy canon has a long pedigree, but its justifications and contours are not entirely clear. After outlining the history of the canon, this Article explores two common conceptions of the canon, which the Article labels the legislative intent conception and the internationalist conception. In short, the legislative intent conception views the canon as a means of implementing the will of Congress, whereas the internationalist conception views the canon as a means of ensuring that the United States complies with and gives effect to international law. Although traditional accounts of the canon primarily have reflected the first conception, there have been a number of recent efforts by scholars and judges to promote the second one.

This Article argues that both of these conceptions are questionable in light of changes in academic thinking regarding canons, the content and structure of international law, and the role of the federal courts in making common law.

The Article proposes instead a third conception, which it labels the separation of powers conception. Under this conception, the Charming Betsy canon is a means by which courts help preserve a proper relationship between the three branches of the federal government.

Among other things, the canon allows courts to shift certain types of decisionmaking to the political branches and to reduce friction between them and the judiciary. This conception does not provide a perfect defense of the canon because judicial use of the canon involves not only separation of powers benefits, but also separation of powers costs. Nevertheless, the Article concludes that, on balance, this conception provides the most persuasive account of the canon's contemporary role in the U.S. legal system.

Abstract:
Many scholars believe that customary international law (CIL) has the status of self-executing federal common law, to be applied by courts in the United States without any need for it to be enacted or implemented by Congress. In an article last year, we argued that this view lacks historical support and is in substantial tension with political branch enactments as well as broader constitutional principles of separation of powers, federalism, and representative democracy. We concluded that CIL should not be treated as federal law in the absence of authorization from the federal political branches. In the May 1998 issue of the Harvard Law Review, Professor Harold Koh argues that our analysis and conclusion are "radical," "utterly mistaken," and "bizarre." In this response to Koh's article, we focus on the four central errors in Koh's analysis: (a) its mistaken use of history; (b) its conflation of the traditional CIL that regulates international relations with the new CIL of human rights that regulates the way a nation treats its citizens; (c) its unjustifiably broad conception of the common law powers of federal courts; and (d) its unwarranted assumption that all of international law must be incorporated into domestic law.

Abstract:
For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. For a variety of reasons, however, the distinction between foreign and domestic affairs appears to be breaking down, such that there is an increasing need to reexamine the differential treatment of federal foreign affairs powers.

One example of such differential treatment is the purported immunity of the treaty power from federalism limitations. A central principle underlying American federalism, often recited by the Supreme Court, is that the national government is one of limited, enumerated powers. A corollary of this principle is that when the federal government makes supreme federal law, it is restrained in what it can do either by inherent limits in the scope of its delegated powers, or by the Tenth Amendment's reservation of powers to the states, or both. This is not the conventional wisdom, however, with respect to the treaty power. Although the treaty power is understood as being subject to the individual rights protections of the Constitution, and perhaps also to separation of powers restrictions, treaties are not thought to be limited either by subject matter or by the Tenth Amendment's reservation of powers to the states. I refer to this conventional wisdom as the "nationalist view."

In this Article, I question the nationalist view. As I explain, the two components of the nationalist view have developed in isolation. While either component might seem relatively unproblematic by itself, when considered together they violate the principle of limited, enumerated powers. The treaty power in our Constitution is a power to make supreme federal law. If such law can be made on any subject, without regard to the rights of the states, then the treaty power gives the federal government essentially plenary power vis-a-vis the states. Such plenary power, however, is exactly what American federalism denies.

Part I of the Article introduces the problem. Part II describes why the relationship between the treaty power and American federalism is particularly significant today, given recent changes in the nature of treaty-making as well as the recent federalism jurisprudence of the Supreme Court. Part III examines materials from the Founding period and the nineteenth century and concludes that, contrary to claims by its proponents, the nationalist view lacks substantial support in history. Part IV recounts how the nationalist view became orthodoxy, beginning with the Supreme Court's 1920 decision in Missouri v. Holland and followed by the eventual repudiation of a subject matter limitation on the treaty power. Part V then sets forth a critique of the nationalist view. In particular, it questions the three principal justifications for the nationalist view: that the treaty power is immune from federalism restrictions because that power has been exclusively delegated to the federal government; that federalism limitations are unnecessary because the political process is sufficient to protect states' rights; and that imposing federalism limitations on the treaty power would unduly interfere with the ability of the federal government to speak with one voice in foreign affairs. Finally, Part VI considers some of the options for protecting federalism in this context, and it concludes that the best option is to construe the treaty power as subject to the same federalism limitations as Congress's legislative powers.

Abstract:
In the last twenty years, a consensus has developed among courts and scholars that customary international law has the status of federal common law. We label this consensus the "modern position." Courts have endorsed the modern position primarily to support their conclusion that international human rights lawsuits between aliens "arise under" the laws of the United States for purposes of Article III of the Constitution. Scholars have pushed the consequences of the modern position further by arguing that customary international law preempts inconsistent state law under the Supremacy Clause, binds the President under the Take Care Clause, and even supersedes prior inconsistent federal legislation.In this Article, we question the modern position's historical validity, and show that its recent rise to orthodoxy has been accompanied by little critical scrutiny. We then question contemporary arguments for the modern position and show how these arguments depart form basic understandings about American representative democracy, federal common law, separation of powers, and federalism. We conclude that, in the absence of authorization by the federal political branches, customary international law should not have the status of federal law. This conclusion requires less change in judicial practice than might commonly be thought. Nonetheless, the story of the modern position's rise and continued influence presents cautionary lessons for a democratic society increasingly governed by international law.