Chevron Deference and Treaty Interpretation

Abstract:     
One need not accept Hobbes's vision of international relations as a perpetual condition of warre to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign affairs law has important implications for treaties, which play dual roles in the American constitutional system: Internationally, treaties represent sensitive political agreements with foreign nations having important implications for U.S. foreign policy. Domestically, treaties enacted pursuant to Article II become Supreme law on par with federal legislation. Thus, when interpreting treaties, domestic courts have sought to reconcile these two functions by defending the judicial prerogative to say what the law is while simultaneously affording executive treaty interpretations 'great weight.'

A recent article by Professor Curtis Bradley defends judicial deference to executive treaty interpretation by analogizing this practice to the Supreme Court's two-part test for deference to administrative agency interpretations established in Chevron U.S.A., Inc. v. Natural Resources Defense Council. Accepting that some judicial deference in this realm may be both appropriate and desirable, this Comment nevertheless challenges Chevron's adaptability to judicial treaty interpretation in light of prevailing constitutional and customary international law. In place of Bradley's Chevron paradigm, this Comment offers an alternative analogy from administrative law--Skidmore deference--as a superior paradigm for conceptualizing judicial deference to executive treaty interpretation.

Number of Pages in PDF File: 8

Keywords: treaties, interpretation, chevron, deference

JEL Classification: K33

Accepted Paper Series