Rediscovering the Relationship between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom

Abstract

This article identifies the four exceptions to the last-in-time rule recognized in Supreme Court and other cases (e.g., (1) the indirect incorporation or constitutional status exception, (2) the executed or vested exception, (3) the rights under treaties exception, and (4) the law of war or war power exception). Each exception to the last-in-time rule assures the primacy of international law in case of an unavoidable clash with a subsequently enacted federal statute. Before applying the last-in-time rule there are two steps to consider; (1) Charming Betsy and its offspring require that federal statutes be interpreted consistently with international law, and (2) if that is not possible, the Cook rule requires the primacy of a treaty over subsequent federal legislation unless Congress expressed a clear and unequivocal intent to override international law.

Keywords: Charming Betsy, CIL, clear intent to override, Congress, Cook rule, customary, exception, executed or vested, federal statute, indirect incorporation, international law, human right, interpret, last-in-time, law of war, primacy, rights under treaties, Supreme Court, treaty, war power