Do U.S. Courts Discriminate Against Treaties?: Equivalence, Duality, and Treaty Non-Self-Execution

Abstract

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.

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: K33