Treaty Override: The False Conflict Between Whitney and Cook

47 Pages Posted: 9 Jun 2020 Last revised: 22 Jul 2020

See all articles by H. David Rosenbloom

H. David Rosenbloom

Caplin & Drysdale, Chartered

Fadi Shaheen

Rutgers, The State University of New Jersey - School of Law, Newark

Date Written: May 1, 2020

Abstract

This paper explores the conditions under which a U.S. statute overrides an earlier self-executing treaty. Focusing on the often blurred distinction between three types of statute-treaty relationships – reconcilable inconsistencies, textual repugnancies, and conflicts – the paper concludes that, contrary to a common view, there is no contradiction between the 1888 Supreme Court decision in Whitney v. Robertson, stating that in the event of a conflict between a statute and a treaty the later-in-time provision always controls, and the Court’s 1933 decision in Cook v. United States, holding that a later-in-time statute does not override an earlier treaty without a clear expression of congressional intent to override. The paper explains that Cook merely finds no conflict to which Whitney’s later-in-time rule might apply: Together, the two decisions harmoniously stand for the proposition that while typically a later-in-time treaty overrides an earlier repugnant statute, a later-in-time statute overrides an earlier repugnant treaty only if Congress has clearly expressed its intent to override or if not overriding the treaty would render the statute a nullity. Though the Court did not say as much, Cook’s approach is an application of the canon of construction favoring a specific provision over a general one. Reconceptualized this way, Cook cannot be said to give general primacy to treaties over statutes.

Keywords: Treaty override, harmonization, inconsistency, repugnancy, conflict, clear statement, specific-over-general canon of construction, Supremacy Clause, statute, treaty, tax treaties

JEL Classification: K30, K33, K34

Suggested Citation

Rosenbloom, H. David and Shaheen, Fadi, Treaty Override: The False Conflict Between Whitney and Cook (May 1, 2020). Available at SSRN: https://ssrn.com/abstract=3599664 or http://dx.doi.org/10.2139/ssrn.3599664

H. David Rosenbloom

Caplin & Drysdale, Chartered ( email )

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Fadi Shaheen (Contact Author)

Rutgers, The State University of New Jersey - School of Law, Newark ( email )

Newark, NJ
United States

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