Do U.S. Courts Discriminate Against Treaties?: Equivalence, Duality, and Treaty Non-Self-Execution
David H. Moore
J. Reuben Clark Law School, Brigham Young Uniiversity
December 31, 2010
Columbia Law Review, Vol. 110, p. 2228, 2010
Despite the inclusion of treaties in the Supremacy Clause, only self- executing treaties are immediately enforceable in U.S. courts. The Supreme Court confirmed as much in its recent decision in Medellm v. Texas, which adopted a broad notion of non-self-execution. Most foreign relations law scholars seek to limit the incidence of non-self-execution. They argue, among other things, that non-self-execution violates the Supremacy Clause, which mandates equivalent treatment of the Constitution, statutes, and trea¬ties. A minority of scholars have responded by arguing variously that the doctrine of non-self-execution does not discriminate against treaties, that the Constitution does not require equivalence, and that differential treatment is justified by treaties' dual nature—they are, first, instruments of foreign af-fairs and, second, domestic law.
This Essay introduces a new argument in favor of a broad notion of non-self-execution. Rather than emphasize the unique duality of treaties, this Essay highlights that the Constitution and statutes also possess a dual nature. While their primary role is as domestic law, they also play a role in foreign relations, particularly when they apply extraterritorially. Recent gui¬dance from the Supreme Court on the extraterritorial application of the Constitution and statutes permits a timely comparison of the judicial treat-ment of all three sources of supreme law in their areas of secondary applica-tion. Comparison along this new axis reveals that treaties fare better than statutes under even a broad notion of non-self-execution. The new analysis thus advances the argument for non-self-execution. The comparison also has important implications for other issues bearing on the domestic status of treaties.
Number of Pages in PDF File: 67
Keywords: treaty, duality, equivalence, self execution, non self execution, non-self-execution, Foster, self-execution, foreign relations law, role of courts, extraterritorial, extraterritoriality, constitution, statute, Boumediene, Medellin, Hoffman, Hoffman-LaRoche, Hartford, Hartford Fire
JEL Classification: K33Accepted Paper Series
Date posted: April 1, 2010 ; Last revised: May 26, 2011
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