Constitutional Constraints on the International Law-Making Power of the Federal Courts

Abstract

The sole clause in the Constitution expressly giving Congress power to define law is the Offenses Clause. That clause states, in part, “The Congress shall have power to define and punish offences against the Law of Nations.” This unique clause constrains courts' law-making power further than previously expressed by courts or commentators. While the federal courts' common law power to make law is only to be used sparingly, if at all, in this article I argue that the federal courts are without power to define the law of nations due to the Offenses Clause. Other scholars have argued that the clause constrains certain doctrines, but, in fact, compliance with the Constitution mandates the federal courts' complete withdrawal from the determination or enforcement of non-statutory customary international law. Thus, the long-held doctrine for determining international law is flawed from its foundation and must be discarded for a constitutionally permissible alternative. In Part II, I review the background of the Offenses Clause and consider (1) the text of the Clause; (2) the structure and theory behind the Clause; and (3) the history of both the Clause and its American jurisprudence. Next, in Part III, I examine other scholars' attempts to quantify the Clause and limits arising from it. Finally, in Part IV, I analyze what the proper role of the courts in determining the law of nations should be. I conclude by pointing out that these limitations only apply to freestanding determinations of customary international law, not to the interpretive, express role of the courts in applying and interpreting treaties, domestic legislation with international implications, or any subject matter over which jurisdiction is expressly granted by Article III.

Keywords: Offenses Clause, international law