USFR Outline Condensed

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U.S. Foreign Relations Law Outline

Fall 2008
Table of Contents
I. Introduction: Medillin v. Texas .....................................................................................................................................3
II. The Constitutional Period.............................................................................................................................................3
III. The Neutrality Controversy ........................................................................................................................................4
IV. Nature of U.S. Foreign Relations Authority ..............................................................................................................5
c. Ex Parte Merryman, 1861:...........................................................................................................................................5
d. Chinese Exclusion Case (Chae Chan Ping v. United States), 1889: ...........................................................................5
e. Carter v. Carter Coal Co., 1936: .................................................................................................................................6
f. United States v. Curtiss-Wright Export Corp., 1936: ...................................................................................................6
V. Foreign Relations and Domestic Courts ......................................................................................................................6
a. Political Question Doctrine..........................................................................................................................................6
b. Baker v. Carr, 1962: ....................................................................................................................................................7
c. Goldwater v. Carter, 1979: ..........................................................................................................................................7
d. Act of State Doctrine ....................................................................................................................................................7
e. Banco Nacional de Cuba v. Sabbatino, 1964:..............................................................................................................7
f. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 1990:...............................................................................8
g. Exceptions to the act of state doctrine: ........................................................................................................................8
VI. Judicial Deference to the Executive Branch ..............................................................................................................8
a. Mingtai Fire & Marine Ins. Co, v. UPS, 1999:............................................................................................................8
b. Gonzales v. Reno, 2000:...............................................................................................................................................8
c. United States v. Lombera-Camorlinga:........................................................................................................................9
VII. Foreign Affairs and the ‘Political’ Branches............................................................................................................9
a. Sources of Congressional Power .................................................................................................................................9
i. Buttfield v. Stranahan, 1904: ........................................................................................................................................9
ii. United States v. Arjona, 1887: .....................................................................................................................................9
iii. Fong Yue Ting v. United States, 1893: .......................................................................................................................9
i. Sources of Presidential Power ....................................................................................................................................10
j. Youngstown Sheet & Tube Co. v. Sawyer, 1952:........................................................................................................10
p. Congress and the President........................................................................................................................................11
ii. Immigration and Naturalization Service v. Chadha, 1983:.......................................................................................12
VIII. War and Armed Conflict........................................................................................................................................13
a. Congress’s Role in Authorizing Armed Conflict ........................................................................................................13
c. Constitutional Assignment of War Powers.................................................................................................................13
l. President’s Independent Military Powers...................................................................................................................14
1. Durand v. Hollins, 1860:............................................................................................................................................14
1. The Prize Cases, 1863:...............................................................................................................................................15
IX. Congress’s Ability to Regulate the President’s Use of Force .................................................................................15
a. Little v. Barreme, 1804: .............................................................................................................................................15
iv. Terms of the War Powers Act:...................................................................................................................................16
c. Nixon’s Veto of the War Powers Resolution ..............................................................................................................16
e. Campbell v. Clinton:...................................................................................................................................................17
X. War and Individual Liberties .....................................................................................................................................17
i. Korematsu v. United States, 1944:..............................................................................................................................17
ii. Ex parte Endo, 1944: .................................................................................................................................................18
iv. Squaring Endo with Korematsu: ...............................................................................................................................18
i. New York Times Co. v. United States, 1971: ..............................................................................................................18
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l. The Guantanamo Cases ..............................................................................................................................................19

XI. The War on Terrorism ..............................................................................................................................................19
b. Hamdi v. Rumsfield, 2004: .........................................................................................................................................20
XII. States and Foreign Relations: Preemption .............................................................................................................22
b. Hines v. Davidowitz, 1941: ........................................................................................................................................22
c. De Canas v. Bica, 1976:.............................................................................................................................................22
d. Crosby v. National Foreign Trade Council, 2000: ....................................................................................................22
XIII. Treaty and Dormant Preemption ..........................................................................................................................22
b. Clark v. Allen, 1947: ..................................................................................................................................................23
c. In re WWII Era Japanese Forced Labor Litigation, 2000:........................................................................................23
g. Zschernig v., Miller, 1968:.........................................................................................................................................23
j. American Insurance Association v. Garamendi, 2003: ..............................................................................................23
l. Holmes v. Jennison, 1840: ..........................................................................................................................................23
n. Ashwander v. Valley Authority, 1936: .......................................................................................................................23
XIV. Treaties and Other International Agreements .....................................................................................................24
a. Self-Execution.............................................................................................................................................................24
ii. Foster v. Neilson, 1829: .............................................................................................................................................24
iii. Asakura v. City of Seattle, 1924:...............................................................................................................................24
iv. United States v. Postal, 1979: ...................................................................................................................................24
v. Frolova v. USSR, 1985:..............................................................................................................................................24
e. The Last-In-Time Rule ................................................................................................................................................25
i. Whitney v. Robertson, 1888: .......................................................................................................................................25
iii. Cook v. US, 1933: .....................................................................................................................................................25
iv. Breard v. Greene, 1998:............................................................................................................................................25
XV. Separation of Powers ................................................................................................................................................25
a. Edwards v. Carter: .....................................................................................................................................................25
XVI. Delegation of Authority to International Institutions ..........................................................................................25
g. Missouri v. Holland:...................................................................................................................................................26
h. United States v. Lue: ..................................................................................................................................................26
XVII. Treaties and Other International Agreements....................................................................................................26
c. Made in the USA Foundation v. United States (2001):..............................................................................................27
XVIII. Sole Executive Agreements..................................................................................................................................27
a. US v. Belmont, 1937:..................................................................................................................................................27
XIX. Customary International Law................................................................................................................................27
d. The Paquete Habana, 1900:.......................................................................................................................................28
f. Filartiga v. Pena Irala, 1980:.....................................................................................................................................28
g. Sosa v. Alvarez-Machain, 2004:.................................................................................................................................28
q. Kadic v. Karadzic, 1995:............................................................................................................................................29
r. In re South African Apartheid Litigation, 2004:.........................................................................................................30
XX. The Charming Betsy Canon.....................................................................................................................................30
b. United States v. The Palestine Liberation Organization, 1988: ................................................................................30
c. Ma v. Reno, 2001:.......................................................................................................................................................30
d. Reliance on Foreign and International Materials in Constitutional Interpretation ..................................................30
XXI. Extraterritoriality....................................................................................................................................................31
a. Reid v. Covert, 1957:..................................................................................................................................................31
g. United States v. Verdugo-Urquidez, 1990: ................................................................................................................32
j. U.S. v. Alvarez-Machain, 2004:..................................................................................................................................32
XXII. Federal Statutes Abroad .......................................................................................................................................33
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a. Turns on the intent of Congress. ................................................................................................................................33

b. Equal Employment Opportunity Commission v. Arabian American Oil Co,, 1991:..................................................33
c. Hartford Fire Insurance Co, v. CA, 1993: .................................................................................................................33
d. Canons and CIL: ........................................................................................................................................................33
e. Hoffman-LaRoche, Ltd. v. Empagram SA, 2004: .......................................................................................................33
XXIII. Foreign Sovereign Immunity...............................................................................................................................34
a. Justiciability: 1) Act of state, 2) political question, 3) legislative standing...............................................................34
b. Difference between foreign sovereign immunity and the act of state doctrine ..........................................................34
c. Verlinden B.V. v. Central Bank of Nigeria, 1983:......................................................................................................34
d. Republic of Austria v. Altmann, 2004: .......................................................................................................................34
e. The Foreign Sovereign Immunities Act and Jurisdiction ...........................................................................................35
XXIV. Exceptions to Sovereign Immunity .....................................................................................................................35
a. Saudi Arabia v. Nelson, 1993: ...................................................................................................................................35
XXV. Sovereign Immunity Defenses...............................................................................................................................35
a. Chuidian v. Phillippine National Bank, 1990: ...........................................................................................................35
b. Ye v. Zemin, 2004:......................................................................................................................................................36
c. Enohoro v. Abubakar, 2005: ......................................................................................................................................36
d. How is there jurisdiction in Verlinden? .....................................................................................................................36
XXVI. Medillin Revisited.................................................................................................................................................37
I. Introduction: Medillin v. Texas

a. Medillin is a Mexican national convicted of rape and murder. He was not read his consular rights under
the Geneva Conventions at the time of his arrest and the Mexican consulate was never contacted. He files
a habeas suit based on the error, but state procedural default rules treat the claim as lapsed when not
raised on direct appeal. International Court of Justice judgment (Mexico v. United States) says that the
conviction of Medillin and 50 other Mexican nationals should be overturned. Supreme Court says that the
treaty is non self-executing and cannot be used to reverse the conviction, judgments of the ICJ
notwithstanding. The argument that the President tried to enforce the treaty is ineffectual because this
violates separation of powers.
i. Vienna Convention: Multilateral treaty on consular relations. Includes a provision that officials
from Country A should contact representatives of Country B when a citizen of B is arrested in A.
ii. Writ of habeas corpus: challenges the legality of incarceration
iii. Self-executing v. non self-executing treaties: All treaties are technically self-executing under the
Supremacy Clause. They take effect without legislation. Some, however, require enactment as
federal legislation before taking effect. These are non self-executing.
1. Intent
2. Language (language of contract v. commitment)
iv. Treaty systems: Monist systems treat international and domestic law as one body (like the
Netherlands). Dualist systems require that treaties be enacted by the legislature before taking
legal effect. (U.K.)
b. Flaherty’s Big Questions:
i. What is the status of international law? What is it’s relationship to domestic law?
ii. How is the separation of powers implicated? Which branches get involved in making foreign
policy decisions?
II. The Constitutional Period
a. The dominant paradigm is what the Framers thought about the Constitution should be dispositive of what
individual provisions mean.
i. Uses of history:
1. Modern interpretations of the Constitution informed by history
2. Periods of growth/progression in foreign relations law not internally cohesive
3. Lessons of history
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b. Theories on “Why a Constitution?”

i. “98 lb. weakling” theory of constitutional development – the U.S. had no foreign authority –
disorganized, decentralized, no coordination of power
ii. State tyranny: Construction of the states led to democratic despotism that the Framers didn’t
anticipate
1. The Framers generally applied to the federal government the lessons learned from failed
state constitutions
c. Nation v. States: Which came first?
i. A question of presumptions:
1. If the states were first, we would see a state-centered government. If the nation was first,
the dominant government is likely to be national.
ii. National government (or its prototype) was dominant from the 1770’s on:
1. Colonies crippled by poor communication
2. Need to maintain the Continental Army
iii. Power devolves slightly at the end of the Revolution, but there is an effective monopoly by the
federal government on foreign policy.
d. As a governing document, the Articles of Confederation had a number of failings:
i. No powers of coercion in the federal government.
ii. All changes had to be approved by 9 out of 13 states with all exercising a veto.
iii. Absence of a central executive. Continental Congress exercised power through committees.
iv. Could not raise revenue, could not assure compliance with any treaties or agreements with
foreign powers.
e. Foreign relations problems under the Articles.
i. Britain: Refused to open the ports of the West Indies to American shipping. Flooding of U.S.
ports with British goods.
ii. Uniformity: Every state imposed different trading regulations, lack of uniformity leads to
undercutting and chaos.
iii. Rebellious states: States refusing to recognize the peace with Britain. Refusing to comply with
the Treaty of Paris, particularly 1) compensation for British loyalists whose property was seized
in the war and 2) Legal rights of private creditors. Britain threatens with garrisons still stationed
in Canada.
iv. Western expansion: Spain closed the port of New Orleans and blocked the Mississippi.
Concerns over the control of the river to the interior.
f. The Federalist Papers:
i. No. 3 (Jay): Crucial to the peace of the U.S. to respect treaties. Foreign policy should be
centralized and uniform.
ii. No. 4 (Jay): No central government, no army and navy.
iii. No. 11 (Hamilton): United foreign policy crucial to commerce. Privileges of wider market.
iv. No. 15 (Hamilton): National humiliation palpable. U.S. appears weak and undesirable as an ally.
v. Nos. 75 and 80 (Hamilton): To prevent tyranny, the conduct of foreign affairs should be
assigned to competing parts of the federal government.
vi. The Federalist View:
1. Originally thought that legislatures were virtuous, participatory bodies. Majoritarian
politics dominated early state constitutions.
a. Legislatures chose governors, committees, and judiciary
b. Unicameral legislatures. Discrimination against those who supported England
during the Revolution.
c. State legislatures violating property rights, etc. of individual citizens who
disagreed with state congresses.
2. When Madison, etc. think about government reform in the shape of a stronger executive
and weaker legislature., they develop a system (and a method of getting to it) that
separates all of the powers of the government
a. Indirect elections
b. Judicial protection from legislative retaliation
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c. Stronger executive
III. The Neutrality Controversy
a. War breaks out in France just as the U.S. is beginning to operate under the Constitution. The U.S. has
outstanding treaties with France, which the French want it to honor. U.S. was committed to protect
French possessions in the Americas, allow French warships to bring prizes to U.S. ports, disallow the use
of ports to enemies of France. President Washington is determined not to involve the U.S. in a European
War.
i. Washington’s debate with his Cabinet results in the Declaration of Neutrality. It was not
authorized by Congress and seen as repudiating American obligations to France.
ii. Hamilton: We don’t have to honor treaty commitments made to Louis XVI (he’s dead and the
government is deposed). This violates the law of successor states, which says that any treaty
made by a previous regime must be honored by successive regimes. This provides stability.
1. Broader argument is that executive power is foreign affairs power.
iii. Jefferson: The United States can remain neutral if the treaty is parsed carefully. For once,
Jefferson out-argues Hamilton.
1. He relies on the Commander in Chief power, residual powers not given to either the
judiciary or the legislature, Take Care clause
iv. Madison: foreign affairs power is the province of the legislature
v. All of this demonstrates that history is a tricky argument in foreign affairs. When Founders
disagree, it is hard to argue for any sort of original understanding. Of all the arguments,
Hamilton’s is the most idiosyncratic. We never see it again.
b. The Neutrality Proclamation: Enjoins U.S. citizens from taking actions that violate the country’s
international commitments.
i. Privateering: Letter of marque and reprisal. Early U.S. had no navy and contracted out to
privateers. They captured foreign ships and kept the “prize” or the proceeds from libel sales of
captured ships.
IV. Nature of U.S. Foreign Relations Authority
a. Many of the foreign relations powers do not have clear genesis in constitutional text. Other than the
power to sign treaties, declare war, appoint ambassadors, etc., there are few specific delegations listed in
the Constitution.
i. Foreign affairs exceptionalism: The view that foreign relations law is different from U.S.
domestic law. Everything understood about domestic law is meaningless in an international
framework.
ii. The opposing position is that domestic and international law analyses are essentially the same.
iii. The Constitution is essentially silent on foreign affairs. Some argue that it is so different and so
sparsely treated, it ought to be understood differently.
b. Source of foreign relations powers:
i. Text (examination or inference)
ii. History (original understanding)
iii. Custom (practice as a gloss on the Constitution)
iv. Structure (relationship between clauses)
c. Ex Parte Merryman, 1861:
i. Pro-secession mobs in Baltimore attempt to prevent U.S. troops from marching to Washington
from Philadelphia. Lincoln suspends the writ of habeas corpus when the leaders are arrested.
Taney (riding circuit) says that this is beyond the power of the President. If the writ of habeas
corpus is to be suspended, it must be done by Congress. The structural argument is that since
habeas is mentioned in Article I, it is the province of the legislature. Taney rejects any essential
executive arguments and the sovereignty/emergency powers angle. Lincoln asks the Congress to
suspend the writ and back-date – the point becomes moot.
d. Chinese Exclusion Case (Chae Chan Ping v. United States), 1889:
i. Federal statute preventing Chinese laborers from re-entering the United States after leaving.
Sovereignty argument prevalent. Every independent nation has the power to exclude persons
from its territory if they are not citizens. Jurisdiction within the nation is necessarily exclusive
and absolute. No text at the time to tell the federal government that it has to treat people equally.
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ii. Today, this would be a 14th Amendment issue. Then, it fell under the naturalization clause. ‘
iii. Challenging government action: Common arguments
1. The relevant government actor doesn’t have the power to do x in the first place
2. If the federal government does have the power, does it run up against an established
right?
e. Carter v. Carter Coal Co., 1936:
i. Challenged to a federal statute providing minimum prices and collective bargaining in the coal
industry. The federal government has no inherent powers except for those related to the nation’s
foreign affairs. All other powers, whether express or implied, must have a reasonable basis in the
Constitution. There is no “general power” of the federal government for the public welfare or
emergency powers.
f. United States v. Curtiss-Wright Export Corp., 1936:
i. Joint resolution of Congress permitting the President to embargo arms sales to Bolivia. Roosevelt
issues proclamation, Curtiss-Wright violates it. Sutherland argues that there are fundamental
differences between the powers of the federal government with respect to foreign and domestic
affairs. Genesis argument. The necessary concomitants of nationality did not depend on the
creation of the Constitution. The power of the President in the realm of foreign affairs is
predominant (Hamilton’s “sole organ” language). The President has plenary foreign affairs
powers.
ii. Argument that states ceded power:
1. Narrow view of the vested powers of the federal government.
2. Historical argument – too simplistic to say that the Crown had all of the foreign affairs
power.
iii. Largely true that foreign relations power went to the federal government:
1. “We the People.” People (and ratifying electors outside of the state legislatures) made the
Constitution, not the states.
a. Avoiding the States
b. Wiping clean the governments of the past
c. “More likely” a national constitution
iv. Why wasn’t a “zenith” argument made?
1. Non-delegation doctrine: Congress cannot delegate certain powers away from itself.
Courts putting brakes on Congressional power. Congress needs to specify clearly and in
detail what powers have been delegated and how they should be exercised.
2. Now, federal agencies do governing because Congress cannot pass laws for every
conceivable industry.
3. This was mostly a pre-FDR issue. The formula is now as long as Congress tells someone
to do something for the public good, the power is appropriate.
v. This opinion is bad history and bad policy, but popularly cited by Presidents for its emphasis on
executive power. Sutherland took Marshall and Hamilton’s statements out of context.
vi. Corollary of foreign affairs exceptionalism - when you don’t use the usual rules of constitutional
interpretation, the President is likely to benefit
g. Three theories of foreign relations power:
i. The federal government has only those foreign relations powers that are enumerated in the
Constitution.
ii. Foreign relations powers include all those that are inherent to a concept of “sovereignty.”
iii. Foreign relations powers are inherent to U.S. authority but have extra-constitutional sources, like
British law or international law
V. Foreign Relations and Domestic Courts
a. Political Question Doctrine
i. A doctrine on the justiciability of cases implicating the discretionary powers of other branches of
federal government
ii. Other justiciability issues:
1. Standing
a. Concrete injury
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b. Causation
c. Remedy
d. Legislative
2. Ripeness: has there been an injury, or is it speculative?
3. Mootness: is it too late to do anything about the case at hand?
b. Baker v. Carr, 1962:
i. Court finds deprivation of constitutional rights (equal protection) when Tennessee reapportioned
its voting according to a 1901 statute. Disenfranchised thousands of voters by marginalizing them
in their districts. The Court decides that this case is justiciable and does not fall under any
categories exempted by the political question doctrine.
ii. Political question considerations:
1. Whether the case implicates the relationship between the judiciary and the coordinate
branches of the federal government
2. Whether there is a need for finality to the action of the political departments
3. Whether there is a lack of satisfactory criteria for judicial determination
4. Foreign relations:
a. Standard defying judicial application
b. Requiring the exercise of a discretion demonstrably committed to the executive
or legislature
5. Dates of durations of hostilities
6. Textually demonstrable constitutional commitment of the issue to a coordinate political
department
7. Unusual need to adhere to political decision
8. Lack of respect for the other branches
c. Goldwater v. Carter, 1979:
i. Carter recognizes the People’s Republic of China and moves to de-recognize Taiwan.
Congressmen move to enjoin him from terminating the treaty. Dismissed for lack of ripeness.
Each branch has to act and come to an impasse before the Court could decide such questions.
There is no text in the Constitution to say who terminates diplomatic recognition. No present
prudential considerations to prevent the court from hearing the suit.
ii. Political question doctrine is rarely implicated in domestic suits. Often applied where U.S.
military activities are implicated or where the claims are constitutional in nature
iii. Some trade and treaty agreement cases: Made in the U.S.A. Foundation v. U.S. (NAFTA, 2001),
Kucinich v. Bush (ABM, 2002)
d. Act of State Doctrine
i. A common law doctrine that limits the circumstances under which U.S. Courts will assess the
validity of acts of foreign governments.
1. Act of state comes from customary international law. When many countries recognize a
doctrine or right for a long time, it becomes customary law.
a. Promotes peace and security
b. Second-guessing a rule of law in another country leads to conflict
c. A “gentlemen’s agreement” between nations not to scrutinize the internal affairs
of other countries
2. Neither constitutional nor a statute – customary international law may be automatically
incorporated and may raise separation of powers concerns
3. Article III Courts making federal common law after Erie. In international law, there is no
“local” law which needs deference. The concerns underlying Erie do not apply.
4. Sabbatino says that the national federal courts have a common law authority to take down
customary international law and make it part of the jurisprudence of the U.S.
e. Banco Nacional de Cuba v. Sabbatino, 1964:
1. Castro government expropriates U.S. property in Cuba. U.S. commodities broker
contracted to purchase sugar that was then repossessed. The Cuban government demands
the proceeds because the sugar was unlawfully converted after the refining industry was
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nationalized. The shipping contractor claims that the expropriation violated international
law and the shipment never belonged to Cuba. The Court says that act of state deals with
the engagement of the Judicial Branch in the task of deciding the validity of foreign acts,
which may hinder U.S. foreign policy. The Judicial Branch will not rule on the actions of
a foreign sovereign of taking property on its own territory in the absence of a treaty even
where the complaint asserts that the taking violates customary international law.
2. Asserting an independent judicial power to establish ACT OF STATE as a matter of
FEDERAL COMMON LAW because of the intrinsic nature of foreign affairs.
3. Bernstein exception: The act of state doctrine applies unless the executive acts in a way
to indicate that the courts shouldn’t give effect to the decision in another country. The
Court chose not to recognize or apply this exception for separation of powers reasons.
4. Sabbatino redux:
a. Act of state limits court involvement in foreign relations.
b. Separation of powers: the courts have asserted and maintained a federal
lawmaking power after Erie> This ability is at the expense of the President, who
would benefit from Bernstein.
5. Dissent: Leaving these decisions to the political branches is backward-looking. Courts
should be able to interpret and apply standards of customary international law. “All
legitimate exercises of sovereign power, whether territorial or otherwise, should be
exercised consistently with rules of international law, including those rules which mark
the bounds of lawful state action against aliens or their property located within the
territorial confines of the foreign state.
f. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 1990:
i. An American company bribes a Nigerian official in order to win a Nigerian government contract
for its subsidiary. A company competing for the same contract sues under the Racketeer Influence
and Corrupt Organizations Act, defendants claim act of state. This is a case of a Nigerian official
breaking his own country’s law; the act in question is the award of the tainted contract. The
Executive Branch weighs in, but Scalia says that it is unnecessary to reach act of state because the
facts do not require the court to declare the acts of a foreign sovereign invalid. The legality of the
Nigerian contract is not a question for decision.
1. In order for act of state to apply,
a. It must be an “Act” – official and governmental.
b. Must be in the territory of the other state
c. Only applies in the absence of treaties where there is room for customary
international law to enter as a principle of decision
2. The argument is that the one guy breaking Nigerian law doesn’t count as an official act of
Nigerian. The Court shouldn’t force the act of state question when it isn’t necessary (after
all, the defendants are sued under RICO).
g. Exceptions to the act of state doctrine:
i. Commercial transactions: Dunhill – Where a country is acting in a commercial rather than an
official capacity, the country does not get protection from suit. The government can act like a
government except for when it acts like a business.
ii. Human rights exception: If the act of state doctrine would violate human rights considerations,
the case may be heard. This includes most ATS suits.
VI. Judicial Deference to the Executive Branch
a. Mingtai Fire & Marine Ins. Co, v. UPS, 1999:
i. UPS loses a package of computer parts from Taiwain. Taiwan claims that it should be insured
against the loss under the Warsaw Convention. China signed, but Taiwan wants to assert that this
binds them as well. The Constitution commits to the Executive Branch the authority to recognize
and to withdraw recognition from foreign nations – recognizing China is a political question, as is
determining the status of a treaty. The Court holds that it cannot find in favor of Mingtai because
of all of the executive/legislative evidence to the contrary.
1. Court looks to the treaty: 1) text, 2) legislative history, 3) traveux preparatoire
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2. There isn’t a lot of treaty to analyze, so it turns to 1) State Department (Treaties in Force
documentation), 2) U.S. amicus brief, 3) legislation
3. Seeing the Taiwan Relations Act, presidential memoranda, and State Department
documents regarding the status of Taiwan, the Court says that Taiwan is not a signatory
of the Convention.
b. Gonzales v. Reno, 2000:
i. Baby Elian Gonzales lands illegally in Miami. His uncle claims asylum for him, his father in
Cuba wants him returned. The Court says that it cannot overturn stated INS policy when there is a
question left to their determination by Congress (whether a six year old child can apply for
asylum and stay in country when the only living parent contests).
1. Language of “any alien” is theoretically enough under the statute, but Elian lacks
capacity under INS rules of process for minor asylum-seekers. Cannot proceed without at
least one parent in support.
2. Quick admin law: Most of government is in the fourth branch – FAA, OSHA, SEC, EPA,
etc. These are created by Congress to make the rules Congress doesn’t have time to
make.
a. US Code v. CFR
b. Making rules through adjudication
3. Chevron deference: When Congress delegates legislative power to an executive agency,
the agency’s actions are examined in terms of whether or not they have overstepped the
power given to them by the legislature.
a. If Congress has spoken, the Court goes with the statute and ignores the agency.
b. If statute is ambiguous, the agencies fill the gaps. Deference often depends on the
thoroughness evident in the agency’s consideration of the issue.
4. The more research and deliberation present in the creation of rules, the more deference
given. The INS ruling stands because it is not arbitrary and capricious and does not
overstep the bounds of its delegated authority.
c. United States v. Lombera-Camorlinga:
i. Another Vienna Convention case. Question of whether there is an exclusionary rule like Miranda.
Court declines to accept partly because the State Department said that this is not an appropriate
remedy under the Convention (State often enforces Vienna Convention provisions on its own
without the courts).
1. Dissent: The State Department shouldn’t be in charge of the rights of foreign nationals.
Foreigners are directly prejudiced by the inability to speak to consular officials; this
ruling doesn’t square with due process. This meaning is inconsistent with the treaty –
why would there be an individual right without a remedy?
ii. It is common for the judicial branch to defer to the Executive in foreign affairs. Is this “respectful
consideration” or “conclusive weight”? May be a good predictor of outcomes because:
1. EB involved directly in the negotiation of treaties and well-situated to determine original
intent. There are significant foreign policy implications with political implications for
other branches. Courts adopt the executive position when it is “fair” to do so. In domestic
litigation, the agencies receive deference because they possess expertise in the matters at
hand.
VII. Foreign Affairs and the ‘Political’ Branches
a. Sources of Congressional Power
i. Buttfield v. Stranahan, 1904:
1. Constitutionality of the Tea Inspection Act. Plaintiff sues for conversion, etc. because his
tea was found to be below standard and thereby destroyed. Power to regulate commerce
with foreign nations was delegated to Congress by the Constitution and has no limitation.
The exercise of Congress’s plenary power with respect to the exclusion of foreign
merchandise is appropriate. No individual has a vested right to trade with foreign nations.
Congress has the power to determine what merchandise may be imported and to what
standards it must conform.
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ii. United States v. Arjona, 1887:

1. Counterfeiting of Colombian currency within the U.S. Violates federal statute. The law of
nations requires “due diligence” on behalf of each nation to prevent violence from being
done to another nation on its soil. Nations have a compelling interest in making sure that
all currency is valid and supported. This falls under necessary and proper authorization.
iii. Fong Yue Ting v. United States, 1893:
1. Statute requires the deportation of Chinese laborers in the U.S. unless they obtain
certificates from “credible white witnesses” and government agencies proving that they
entered the country before date x. Three Chinese laborers file writs of habeas to say that
Congress lacks the authority to deport. Majority says that the United States has sovereign
power to expel or deport foreigners who have not been naturalized. Dissent says that
aliens are protected under the Constitution and that “sovereignty arguments” are both
indefinite and dangerous. The powers of the U.S. government should be confined to the
Constitution.
b. Congressional involvement in foreign relations:
i. Senate Foreign Relations Committee
ii. Appropriations
iii. Subcommittee on Foreign Operations, etc.
iv. Institutional experience and expertise facilitation Congressional participation in foreign relations.
However, decentralization is a problem.
v. Complications:
1. Congress is a public body – no place for sensitive information
2. No singular voice
3. Hard to coordinate
4. Foreign relations problems often occur when Congress is not in session
c. Appropriations Power: Congressional control over foreign relations is often tied to the power of
appropriations. Enormous discretion over how and when to spend money. Congress can condition
appropriations for: 1) presidential action, 2) human rights reasons, 3) UN reform, etc.
d. Commerce Clause: The states never had the power to regulate foreign commerce. In theory, the foreign
commerce powers of Congress are plenary and limitless.
e. Necessary and Proper Clause: McCulloch questions – Necessary and proper laws have appropriate means
and are plainly addressed towards a particular end. Courts should examine whether Congress acted with
proper purpose or just under the pretext of exercising enumerated powers.
f. Admiralty: No specific clause, but justified under the commerce clause.
g. Define and Punish: Violations of the law of nations. Founders were concerned that the states might not
provide adequate protection for international law.
h. Immigration: Inherent power of national sovereignty and naturalization. Validity of congressional
regulation of immigration involves political questions. Is there general Congressional foreign relations
power?
i. Sources of Presidential Power
i. Monroe Doctrine: Any power seeking to declare war in the American sphere of influence will be
seen as hostile to the U.S.
ii. The Roosevelt View: Executive power is limited only by the express prohibitions in the
Constitution. The President may do all that is required on the behalf of the nation.
iii. Taft: The President can exercise no power that cannot be reasonably traced to some specific grant
or authorization in the Constitution.
iv. Reagan Doctrine: Sweeping application of American political and moral ideals to the rest of the
world. Existence of all non-democratic governments seen as illegitimate. Right of resistance,
support from the US where such movements arise.
v. Bush Doctrine: Doctrine of preemptive strike. The US may adopt a proactive posture to protect
itself from rogue states and terrorists. Imminent threat conditioned.
j. Youngstown Sheet & Tube Co. v. Sawyer, 1952:
i. Truman and the steel strike. Black majority opinion says that the President’s power must stem
from an act of Congress or the Constitution. Since there is no statute authorizing Truman’s
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activities, it is unconstitutional and impermissible. Frankfurter says that Congress has

specifically provided for seizures in the past – these are always limited. The power is heavily
circumscribed and Congress made the conscious decision not to give presidential discretion.
ii. Frankfurter also notes that there are “deeply embedded traditional ways of conducting
government that cannot supplant the Constitution or legislation, but they give meaning to the
words of a text or supply them.”
iii. These are glosses on the Constitution. The government works out its functions over time. The
Constitution provides the framework, but the actual functioning of the government is just as
legitimate as a means of examining how the document is to be interpreted. The “gloss which life
has written” on the Constitution.
1. A systematic, unbroken, continuous practice of the President(s) may be treated as a gloss
on presidential power.
iv. Jackson: The art of government does not conform to judicial articulation. Presidential power
fluctuates.
1. Maximum authority: Presidential acts pursuant to express of implied authorizations by
Congress. All presidential power plus all power delegated by Congress. If invalid, means
that the government as a whole lacks power.
2. “Twilight” authority: Presidential acts in absence of either permission or restriction of
Congress. President relies on independent powers. Congressional inertia must sometimes
invite or enable independent presidential action. Fact-specific.
3. “Low ebb” authority: Presidential actions incompatible with express or implied
Congressional will. President can only rely on his own constitutional powers. Merits
strict scrutiny.
v. Jackson rejects all of the government’s arguments. 1) Executive vesting doesn’t work because the
Constitution was drafted with a presumption against plenary executive power (see
MONARCHY), 2) Commander in chief is a dangerous line of argument because it would allow
the President unlimited domestic authority because he sent troops to war, 3) Take care is backed
up by Congressional extensions of special powers. There is no need to extend the clause further,
k. Executive Vesting Clause: Presidential function is constitutionally limited. There is a difference between
the vesting clauses in different branches. Some rely on this difference to argue that a plenary view of
executive power is consistent with original understanding (Prakash and Ramsey)
i. Flaherty says this is bollocks. There are precisely two mentions of the so-called Hamiltonian view
between the Revolution in 1787, one of which is Hamilton himself.
ii. P&R’s starting point is that foreign affairs powers are presidential and should be tied to an 18th
century understanding of executive power. Power is residual and incorporates a “necessary and
proper” like function.
iii. Flaherty and Bradley (strange bedfellows): Argue that the drafting of the clauses cuts against the
executive power thesis. Not supported by history. Federalist papers, Convention documents, etc.
contain nothing to support this view and neither does political theory.
1. The P&R thesis relies on continuity, i.e,, that European constitutional theory is taken
forward into the Constitution unchanged. Also executive power essentialism: those
powers that “naturally” belong to the executive. This does not square with the Founders’
self-conscious rejection of the British model of government. Historical support breaks
down as early as the Washington administration (which was exceedingly minimal in its
view of executive power).
l. Take Care Clause: The executive is denied power to make laws, only to execute them. Where there is no
law, the authority of the President is minimal.
m. Commander in Chief Clause: Limited application, particularly where activities do not include the field of
war.
n. The Executive Branch is hierarchical: Sits atop a massive foreign affairs bureaucracy and government
supervision including: The Department of State, National Security Council, Department of Defense,
Treasury, Commerce, etc. There are advantages to placing the executive in charge of foreign affairs:
i. Unity of the office
ii. Capacity for secrecy and dispatch
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iii. Superior sources of information

iv. Virtual monopoly on information/communications with respect to foreign affairs
o. There are fewer enumerated powers, but particular attention is paid to those that can be construed to
implicate foreign affairs.
p. Congress and the President
i. Dames&Moore v. Regan, 1981: Seizure of Iranian assets during the hostage crisis. President
Reagan succeeds Carter, negotiates agreement with Iran that terminates all legal proceedings in
the US against Iran, nullifies attachments, and prohibits judgments. All claims to be brought by
binding arbitration in a special Hague tribunal. Outstanding litigation causing friction,
longstanding tradition of displacing claims, alternate forum.
1. Rehnquist finds the Youngstown analysis persuasive. Specific Congressional
authorization would create a heavy burden for Dames&Moore to say that the suspension
of claims was ultra vires. Approval analysis is not specific.
2. Rehnquist infers approval because Congress accepts a broad scope for executive action in
circumstances like those in this case. The “general tenor” of legislation used to determine
whether the President is acting with Congressional acceptance, which the Court finds.
a. Sneaky perversion of Youngstown: The failure of Congress to delegate/approve
does not mean disapproval.
b. Finds legislative approval where Congress gave none (Koh) and condoned
legislative inactivity.
ii. Immigration and Naturalization Service v. Chadha, 1983:
1. Challenge to the constitutionality of a provision in the INA that authorizes the Attorney
General to suspend deportation of otherwise deportable aliens. Allowed one House of
Congress to veto the AG’s determination. This implicates the legislative veto because
several members of Congress took it upon themselves to contest the finding of the AG
and the immigration judge.
2. Presentment: Constitutional mandate that all legislation be presented to the President
before passage into law. Special pains taken by the drafters to ensure that the presentment
requirement cannot be circumvented. The house has limited and qualified powers to
nullify proposed legislation by veto. This protects the President and prevents
unreasonable laws.
3. Bicameralism: The Founders ensured that no legislation could pass without the approval
of both Houses of Congress. Protects the people from improvident laws. There is a
legislative function of the one-house veto that cannot be supported by the Constitution.
4. Delegation: Congress delegated to the agencies – once the choice is made, they may not
renege unless they change the legislation.
5. Instances where Congress can avoid presentment: 1) initiation of impeachments in the
House, 2) conduct of impeachment trials in the Senate, 3) Senate given the power over
presidential appointments, 4) Senate will ratify treaties negotiated by the executive
iii. White’s dissent: Legislative veto allows a check on executive authority consistent with separation
of powers. Allows the branches to resolve major constitutional differences. Congress creates the
agencies so that it doesn’t have to deal with the day-to-day implementation of legislation.
1. The President is the net beneficiary. The relevance of this system is that it is a gloss on
power. This is how the government worked out the New Deal system in the framework of
separation of powers. Invalidating the veto strikes hundreds of other laws.
iv. Separation of powers secures liberty by diffusing authority and increases the quality of political
outcomes through institutional divisions of labor.
1. Formalism: Emphasizes constitutional text. Rule-bound adjudication. Is a particular
exercise of authority essentially legislative, executive, or judicial?
2. Functionalism: Modern government requires flexible interpretations of separation of
powers. Balancing approach. Do particular institutional practices further the purposes of
separation of powers?
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v. Elimination of the legislative veto problematic. See Trading with the Enemy Act and the
International Emergency Economic Powers Act. Congress sanguine about delegation because of
the legislative veto.
vi. Independent foreign relations powers of the President may have broader delegations attached. See
Uniform Code of Military Justice and Commander In Chief powers. Statutes that restrict the
exclusive constitutional powers of the President are impermissible. The President has the duty to
execute the laws, including the Constitution, so the Executive Branch may sometimes argue that
it will not enforce a statute that violates the Constitution/Article II.
vii. Dames&Moore relies on history, which is relevant in interpreting statutes that authorize actions
by the Executive Branch. Congress is often expected to be aware of a longstanding Executive
Branch practice. Congress tends to defer to these practices in foreign affairs.
viii. Impoundment: Congress sometimes tries to condition Presidential action in foreign affairs on
particular requests. Other provisions in the Constitution may limit this practice where it results in
Congress trying to determine how the President can act in the national security context. See
Jerusalem Embassy Act of 1995.
ix. Koh on presidential power: The President rarely loses. 1) The President takes foreign policy
initiative and rarely suffers high stakes losses at the hands of Congress, 2) Day-to-day relations,
negotiations for international agreements, articulation of US policy, sending troops abroad, 3)
The House and the Senate are primarily reactive bodies
x. Martin: Initiatives and defeats are not the whole picture. It is a fallacy to infer the absence of
influence from the absence of action as the President conditions some foreign relations behavior
on whether or not there is likely to be Congressional resistence.
VIII. War and Armed Conflict
a. Congress’s Role in Authorizing Armed Conflict
i. 18th c. England: the power to wage war rested directly with the King. After the Revolution, the
powers of war went to the Continental Congress (Articles of Association, boycott of British
goods, threatening ban on American exports). The Second Continental Congress could manage
wars, seek foreign assistance, order state militias, but could not enforce laws or raise and finance
an army. Under the Articles of Confederation, Congress had all of the war powers but could not
get the states to pay their dues and had no funds to raise an army.
ii. The power to “make war” – The Constitutional Convention: Congress might be too deliberative
to “make” war, but the President should not be able to wage war unless the nation supports it.
Madison and Gerry believe that “declare” war allows the President to repel sudden attacks, but
prevents him from making war unilaterally.
b. Original Understanding (via the Federalist, Nos. 24, 25, 69): Hamilton says that an observer of the
system would be led to two conclusions: either an injunction against standing armies in a time of peace or
that it vested in the executive the whole power of levying troops. Powers split between to the two
branches. The power to raise armies lodged within a popularly-elected legislature. Absurd to prevent
raising an army in peacetime because the amount of time required to train an army at the outset of a
conflict would open the country to injury and invasion. The country would be weak and defenseless.
Militia argument is faulty because it failed during the Revolution. The power of the President differs from
the King of England in two important respects: 1) the President will have only the occasional command of
the military when the legislature calls it into service of the union, 2) the President is Commander-in-Chief
only, not trusted with the power to declare war.
c. Constitutional Assignment of War Powers
i. Not in the hands of a single person or body, a system calculated to guard against war.
ii. Presidential command of the armed forces is appropriate because there is a necessity for secrecy,
dispatch, and speed once war is commenced.
d. The Quasi War with France: Undeclared war in 1793 with France. Attacks on American ships by
British and French. Jay Treaty of 1795 reduces British attacks, but the French see it as hostile and
increase theirs. John Adams sends emissaries to France who are poorly treated and asked for significant
bribes (XYZ Affair). Congress passes a number of laws suggesting a state of hostile relations with France.
Enlarged the army and navy, construction of forts, etc. Gave the President the power to capture French
warships and commission privateers.
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i. Bas v. Tingy, 1800: Statutes concerning the recapture of American vessels. First, the US will
return all recaptured vessels for a 1/8 finder’s fee to the privateers securing possession, ½ if
within a specialized time frame. An American commander claims he was entitled to ½ the value
of a recaptured vessel, but the defendant claims the U.S. isn’t at war. The justices say that war
does not have to be perfect in order to be functional. Limited, partial war is still war.
Congressional actions suggest a state of war.
e. The War of 1812: American commercial shipping is caught in the crossfire between Britain and France
in 1803. Great Britain enacts neutrality laws which it accuses the US of violating. Captures and impresses
American soldiers into service for the British navy.
i. Brown v. United States, 1814: Whether Congress had implicitly authorized the Executive Branch
to confiscate property belonging to British citizens in the United States. Declaration of war is not
enough to authorize the confiscation of individual property, but it has the effect of placing two
nations in a state of hostility and producing a state of war. Marshall: The President is free to
conduct a war only insofar as it is consistent with international law – appears to be an original
intent argument. The ultimate sovereign power is the legislature. Dissent (Story): once you are at
war, it is up to the President to decide how to uphold international law. War is an executive
function.
f. The Vietnam War: Involvement in the Vietnam War took place without explicit Congressional
declaration or approval. Tonkin Gulf Resolution (1964) authorizes the President to take all actions
necessary to repel attack on American forces. Resolution to expire when the President determines that
peace and security is reasonably assured in the area.
i. Orlando v. Laird, 1971: Draftees resist orders to go to Vietnam because they say that the U.S. has
not declared war. Congress is entrusted with the power of declaring war to impose a duty of
mutual participation between the President and Congress. Test is whether there was sufficient
action by Congress to authorize or ratify the military activity in question. Tonkin Gulf Resolution
plus appropriations are enough. Nothing in successive legislation prevents the inference of
authorization. Need for flexibility in warfare: a declaration of war is not always necessary.
g. Numerous wars in the 18th c. began without formal authorization. Only 5 declared wars: War of 1812,
Mexican-American War (1846-48), Spanish American War of 1898, WWI, WWII. There are 234
instances of US force abroad without declarations (Collier).
i. Under 18th c. rules, declaration of war was legal notice. Fundamental difference between “war”
and “peace” triggers “full array of international law rules governing” neutrals and belligerents.
ii. Kahn: UN Charter “abolishes war.” War is no longer performative and is not a legitimate means
of changing state entitlements.
h. Early history reflects the view that Congressional approval is mandatory in some military actions:
Washington and Indians on the Western frontier, John Adams and France, letters between Jefferson and
Madison
i. Exclusive power of Congress to authorize war challenged by Monaghan, Turner, Rostow, Yoo:
i. Constitutional text should be read with 18th c. gloss to show Congressional power as the
notification function.
ii. Constitution demands “no correct method” for waging war.
iii. President has broad residual powers to engage in offensive military action.
iv. Check through appropriations (which doesn’t really work).
j. Some argument that the Marque and Reprisal clause is the Constitutional recognition of states of
imperfect war. War could be declared “by word or action” in the 18th c.
k. The Constitutional Convention opposed a standing army as a threat to liberty. Limitations on the army
present in the two-year appropriations clause. Early presidents would have needed Congressional
approval for military action because the army was only 718 people. Now, the President has 2 million in
uniform.
l. President’s Independent Military Powers
i. The Mexican American War: Began as a dispute over the border between TX and Mexico. After the
Texas War of Independence, the state was annexed into the United States with the southern border
contested. 1845: Zachary Taylor moves troops into the disputed territory at the behest of President Polk
and the war begins. Congress supports the war, but says it was started unconstitutionally. Abraham
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Lincoln says that allowing the President to repel attack is one thing, letting the President provoke war is
another. Purpose of the division of war powers was to avoid making the people of the US pay for
executive wars.
1. Durand v. Hollins, 1860:
a. US citizen sues because his property was damaged when the US navy bombarded
Nicaragua. Theft of property and attack on minister lead to American display of
force. US commander argues that his activity was sanctioned by the Secretary of
the Navy. Executive authority allows the President to decide when force is
necessary. Orders not outside the scope of presidential power when conveyed
through the Department of the Navy.
ii. The Civil War: Lincoln responds without Congressional approval in April of 1861, ratified by
Congress (and backdated) in August of 1861. Actions “reactive.” Characterized by Lincoln as
“performing duty or surrender the existence of the government.”
1. The Prize Cases, 1863:
a. Blockade questioned because there was no congressional authorization. Congress
has the power to declare, but nothing prevents the President from reacting. Other
actions in 1861 in support of mobilizing for war. All of Lincoln’s actions fit
under Executive Vesting and Commander in Chief. Ex post facto only applies to
criminal case.
iii. Korea: President Truman relies on the UN Charter, which was ratified by Congress. Dissenting
Senators argue that the US is ceding its powers, including war powers, to a foreign body. When North
Korea invades the South, Truman sends troops under a Security Council call to arms (passed because
the commies abstained). Congressment in agreement say that the President has the power to do so under
the Commander-in-Chief and EV Clause. Acheson: test of the continued survival of the UN.
iv. Somalia: Security Council resolution calls for intervention. Bush 41 sends troops. Authority to protect
American persons, property, and interests abroad. Somalian instability threatens US troops working to
air lift food, etc. Vital national interest of the US includes the maintenance of the UN
m. There is a general agreement that the President has the power to repel sudden attacks without
congressional approval.
i. Hamilton believed that the CiC power gave the President the “Supreme command and direction”
of the military. This is unclear.
ii. President Jefferson believed that the President could repel sudden attacks, but could do no more
without express approval.
iii. Protection of US people and property continuously invoked (Panama, Granada, Somalia, Iran)
n. The UN Charter: (Stromseth) The President cannot change the delegation of war powers under the
Constitution and so the UN Charter is not enough to justify action. Must include Congress. UN General
Assembly/Security Council are no subsitute for American political process. (Turner) The use of US
armed force pursuant to a treaty does not require authorization because of the Take Care Clause. President
executing a rule of law embodied by the treaty that has already been passed.
o. Modern presidents use American forces without express congressional authorization. Contributing
factors? Increase in the size of the military, increase in presidential power with the threat of nuclear
war/US superpower role. Disagreement over whether this could change the meaning of the Constitution.
p. Posse Comitatus Act: Reconstruction. Forbids the use of American forces for civil enforcement of the
laws except in insurrection.
IX. Congress’s Ability to Regulate the President’s Use of Force
a. Little v. Barreme, 1804:
i. Undeclared war with France. Congress passes a statute that restricts the ability of American ships
to travel to French ports. Ship argues that it is coming from, not going to a French port. President
accidentally changed law in orders. The executive cannot change law by re-writing.
b. War Powers Resolution: Resolutions are not subject to presentment. Act of Congress went through
bicameralism and presentment and overrode the veto. Courts do not want to touch it (it’s never been
adjudicated).
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i. Perhaps this is an acceptance of Jackson’s invitation to act  notwithstanding Orlando v. Laird,

Korea, Vietnam, Laos, and Cambodia sees the development of the “imperial presidency”
(Schlesinger)
ii. what about this means of asserting power is productive?
1. influences the constitutional debate outside of the courts
2. the hope is that the passage of this Act will allow Congress to turn public opinion against
the Presidency by announcing that he/she has violated the WPA
a. policy argument: this is a bad war
b. this is an illegal/unconstitutional war
iii. Considering the operation of law outside the courts  adding a legal element to the public
discourse about the conduct of war. Enforcement of this statute is whatever marginal difference it
may make in public opinion. Reining in the president and the executive ability to send troops into
hostilities
1. “Fulfill the intent of the Constitution” to ensure the coordination of the legislature and the
executive on the participation in war
a. A kind of originalist argument coming from the legislature
b. Dialogue between Madison and Gerry  Congress and the President share war
powers and should have to consult one another
i. The President has the power to repel sudden attack
ii. Congress must authorize continuing war power
c. Trying to unpack and give specific language to the general language of the war
power clauses
i. Reduction to specific guidelines
ii. Time limits
iii. Mandatory Consultations
iv. Terms of the War Powers Act:
1. The trigger for congressional authorization is “war”
a. Introduction of American Armed Forces into hostilities
i. what about peacekeeping? hostage situations? protection of American
citizens?
b. Situations that may become hostilities as indicated by the circumstances (e.g.
Polk in Texas)
i. amassing troops may be war avoidance
ii. constraining the authority of the President to conduct the peace
c. Into the territory, airspace, or waters of a foreign nation, while equipped for
combat, except for deployments which relate solely to supply, replacement,
repair, or training of such forces
i. Espionage, reconnaissance
ii. Encouraging the President to hide military operations from Congress in
an attempt to avoid having authority revoked
2. Assuming there is a war, the operative parts of the resolution kick in
a. Notification of Congress (Speaker of the House and the President Pro Tempore
of the Senate) within 48 hours of engagement
b. Congress must authorize or the President must withdraw force within 60 days
unless extended by military necessity for another 30 days
i. By Day 90, the President needs a statutory authorization or a declaration
of war in order to continue
ii. This may be inferential or direct  deliberative process that results in
authorization
iii. Goes against formalistic analysis (like Orlando)
3. The Act conflates going to war with authorization to continue involvement. If after 90
days Congress does nothing, the military operation must cease because it has become
illegal. To the extent that this is Congress’s attempt to interpret the Constitution, this
becomes unconstitutional unless Congress cannot meet (Mars Attacks)
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4. Congress can require the President to bring the troops back through a two-house veto –
violation of the Presentment Clause
5. is the operative part of this Act useful?
a. delegating too much authority away from Congress
b. it is possible to get into a quagmire in less than 90 days
c. once involved, Congress is stuck supporting the intervention with money, etc.,
until it gets the power to stand up to the public
6. Ely, War and Responsibility: make it a 15 day window or 48 hours – if the founding
principle was that the President could have leeway until Congress meets, then the
President shouldn’t have authority for longer than necessary to bring Congress together
c. Nixon’s Veto of the War Powers Resolution
i. Restrictions imposed on the President by the war powers resolution are unconstitutional.
Presumes to take away in legislation powers that the President has exercised for 200 years.
Undermines the capacity of the nation to respond to threat and crisis
1. confidence of allies and ability to assist will be diminished
2. respect of enemies for deterrence posture could be implicated
3. unpredictable
ii. Would restrict the capacity of the United States to act as a peacekeeper and moderator of world
events
1. encourages enemies/hostile parties to hold out for 60 days until the authorization lapses
2. deprives the United States of the capacity to negotiate
iii. Eliminates the President’s discretion in peace-keeping and negotiating by limiting his ability to
practice diplomacy quietly. Congress cannot limit the Commander in Chief power statutorily – no
overt congressional action required, which goes against the Constitution. Congress needs to make
its will known through positive action and should not be allowed to rely on a statute that lets it
assert its authority by doing nothing at all
d. Presidents and the Law: The authority to decline to execute unconstitutional statutes. Substantial
executive practice confirms that this is possible. (Myers v. United States, Freytag v. Commissioner).
President is required to abide by the Constitution and should identify unconstitutional provisions in bills
introduced in Congress. If the President suspects something is unconstitutional and believes that the
Supreme Court would agree, he doesn’t have to execute it. Decision should only be reached after careful
consideration.
e. Campbell v. Clinton:
i. Violation of the WPA in Yugoslavia. Attempt to declare war, authorize bombing, recall forces.
Congress says that Clinton violated the Act. Dist. from Coleman. The Court says that this is a
political question. Dissent says it isn’t because there’s a legal standard (the statute).
X. War and Individual Liberties
a. Under McCulloch, how do we determine whether the President can do something to further the war?
Sounds like Youngstown.
i. Could FDR issue an order excluding American citizens from certain regions of the country
without any authorization from Congress. Congress criminalizes disobedience to the order from
De Witt, so Congress “supports” the action, placing it in the “zenith” category.
b. This is rights case, not a powers case:
i. Unlawful discrimination on the basis of race because it is only the Japanese that are being moved
or excluded.
ii. Prohibition on racial discrimination – the federal government. No text because “no state shall”
language did not apply to the federal government.
iii. Racial discrimination by the federal government subject to strict scrutiny: 1) presumption against
validity, 2) compelling state interest, 3) narrowly tailored to achieve the particular end
c. The Civil War: Suspension of habeas. Declared unconstitutional in Merryman. Congress suspends in
1863.
i. Ex parte Milligan: Military commissions trying Milligan in Indiana. Where the Courts of the
United States are still sitting, military commissions are not appropriate. Martial law is limited by
17
Constitution and necessity. Habeas may be suspended, but judicial process maintained. Milligan
wasn’t in the theatre of war at the time of capture.
ii. Criminal trial in a military commission: 1) reserved for enemy combatants, often used in exigent
circumstances on the battlefield, 3) declaration of martial law.
iii. Line of reasoning in Hamdan distinguished: Milligan is just a citizen (not identified as an enemy
combatant), not found in a war zone.
d. World War II
i. Korematsu v. United States, 1944:
1. Executive order authorizes military commanders to designate areas from which persons
may be excluded or shall be restricted by determination of the military. Japanese
Americans excluded from California coast, imposition of curfew and detentions.
Congress enacts a statute to criminalize breaking the curfew. Korematsu convicted under
the statute for remaining in a military area in California. Black agrees that this is
designed as a protection against espionage and sabotage. Court says that discrimination
based on race is undesireable, it cannot overlook the national security argument (see
Hirabayashi). Disloyal members of the population hard to ascertain. Frankfurter says
that the validity of actions under the war power must be examined under the context of
war.
2. Murphy: This isn’t military, this is racism. There should be limits to military discretion.
Military should subject itself to reasonableness of the order under the Constitution.
3. Jackson: Korematsu is an American. Orders are not reasonably expedient or connected
to military ends. The danger in this opinion is that it construes the Constitution to approve
whatever the military deems necessary. Irresponsible for the Supreme Court to
rationalize this kind of an order with a judicial decision.
ii. Ex parte Endo, 1944:
1. American citizen of Japanese ancestry evacuated to a relocation center. Proven loyal to
the US and wants to leave. The military argues that she should be held because the
community is hostile. There is an assumption that Congress and the Executive realize
when their enactments infringe upon civil liberties. Once a citizen has been determined to
be loyal, the concern over espionage is void and she needs liberty.
iii. What’s the real reason for the difference between these cases? Endo is later, so there’s not as
much immediacy. The real reason has more to do with the Court’s discretion in evaluating a
civilian agency rather than the military. (Critical legal studies: motivating factors behind judicial
behavior that have little to do with the law).
iv. Squaring Endo with Korematsu:
1. Korematsu assumes the authority of the President – the opinion should go straight to
Youngstown, but it doesn’t. Indirect authorization issued AFTER the
internment/exclusion order issued in Korematsu. May be a formalistic difference between
the delegation to the Secretary of Commerce in Youngstown and to a general.
2. Rights at stake? Equal protection. Racial discrimination is not in the text of the 14th
Amendment, but it’s a Reconstruction Amendment, so precedent and original intent are
both implying that it has something to do with race. Race and ethnicity are both
immutable characteristics. This is normally a place for strict scrutiny, but the court
recognizes compelling military need. Seems to trigger deference.
3. Endo: Denied release because the detainment facility is worried that the local community
will be hostile. Loyalty is no longer in question. Endo is not a rights case. There’s an
executive order to authorize government action, but the Court hints that there might not
be constitutional authorization on the rights issue. The thing that’s wrong with the
detention is that the government actor is a civilian agency acting pursuant to a military
order promulgated by the executive. Inferring a grant from the President to detain from
the order to exclude.
4. When possible, statues should be interpreted so as not to interfere with the Constitution.
(Brandeis)
5. Endo is not about RIGHTS, but about how far the executive authorization carries.
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e. Vietnam War
i. New York Times Co. v. United States, 1971:
1. NYT and Washington Post obtain portions of a Defense Department document and seek
to publish. The government sought an injunction to prevent further publication on the
grounds that it was likely to damage the war effort in Vietnam. Supreme Court denies
injunction largely on the basis of prior restraint, which is considered to be repugnant to
democratic government. Black and Douglas: The press serves the governed and not the
governors. court is concerned that the executive branch is asking them to restrict freedom
of speech not because of law but “national security.” No inherent power to prevent
publication. Documents are related to the public discourse on the war and will not affect
the war effort (will not imperil the troops).
2. Neither text nor original understanding apply in 1st Amendment. Classically non-
interpretivist. Democratic self-government rationale, self-expression, marketplace of
ideas.
3. Dissent says the Court shouldn’t decide “what matters” for national security.
f. The Constitution operates equally in war and peace. The decision in Hamdi v. Rumsfield (2004)
determines that only Congress can suspend the writ of habeas corpus. This makes Lincoln’s actions in
Milligan inappropriate under that part of the Constitution. There are other perspectives on his action:
i. absolutist: the government has no emergency power to deal with crisis other than that specifically
provided under the Constitution
ii. relativist: the Constitution is a flexible document that permits the President to take whatever
measures are necessary in crisis
iii. liberal constitutionalism: preserves the distinction between normal and emergency powers
g. Constitutional validity of military commissions – non-Article III courts used:
i. To try enemy belligerents for violations of the laws of war
ii. To administer justice in territory occupied by the military
iii. To replace civilian courts where martial law has been declared
h. Military commissions have been used throughout U.S. history, including the Revolutionary War, the
Mexican-American War, and the Spanish American War
i. Try defendants before military judges rather than judges
ii. Relaxed procedural and evidentiary rules
i. Ex parte Quirin (1942): military commission trial of eight Nazi saboteurs captured in the US in 1942 –
Court holds that Congress authorized the military commissions and that the trials were constitutional
i. Milligan plaintiff was not associated with the armed forces of the enemy
1. Constitutional provisions for jury trials intended to preserve those jury rights available at
common law
2. Under Quirin, properly constituted military commissions need not comply with the
Constitution’s procedural requirements for criminal trials
j. Japanese exclusion order in Korematsu – Japanese sinking ships off the West Coast, widely published
that Japanese Americans were aiding a potential invasion effort
i. Korematsu widely decried as overtly discriminatory
ii. disproportionate response to the threat of sabotage and invasion
1. Endo: cautious construction of wartime authorizations – protective of civil liberties
k. First Amendment prior restraint doctrine v. Executive powers in wartime
i. Near v. Minnesota (1931): press does not always prevail on prior restraint
ii. Free speech often curtailed in wartime – Sedition Act, Espionage Act (see Schenck v. United
States (1917))
l. The Guantanamo Cases
i. Rasul: Purely statutory. Dealt with whether the habeas corpus statute covered Guantanamo. The
Court says yes because the precedent interpreting habeas evolved; writs go to the jailor and the
jailor must go to court and say why the person is in custody. Even if it’s out of the country, the
way that the Court has interpreted the statute before holds that it extends to Guantanamo.
Detainees can file petitions in U.S. courts.
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ii. Hamdi: Once in federal court, what can habeas petitioners asset? What can petitioners ask for as
proof of their charges? The government admits that people can go to court but then says that they
can’t say anything once they get there
iii. Hamdan: Subset of detainess have been determined for trial by a military commission. The
government says that the detainees will be detained until “the war on terror is over.” This could
be never. Putting the worst of the worst of the detainees on trial is a proxy for legitimizing the
entire process. The application of the death penalty does not go to detainees without trial. The
government must try those it wants to punish capitally. Holds that this is a Youngstown low-ebb
case under the Uniform Standard of Military Justice. Relevant provisions effectively prevent the
President from doing what he did.
iv. Boumedienne: Congress reauthorizes most of the military commissions. Attempted to strip
detainees of their statutory right to habeas corpus. Government loses because there is a
constitutional right to habeas corpus. The Court viewed this as a termination, not a suspension.
XI. The War on Terrorism
a. Authorization of Force and President’s Letter to Congress: That the President is authorized to use all
necessary and appropriate force against those nations, organizations, or person he determines planned,
authorized, committed, or aided the terrorist attacks that occurred on 9/11/2001, or harbored such
organizations or persons, in order to prevent any future acts of international terrorism against the United
States by such nations, organizations or persons.
i. necessary: does it mean absolutely necessary, or useful? (see McCulloch)
1. necessary and appropriate doesn’t do much work
2. “against those nations… he determines planned, authorized, committed, or aided…”
– the President has to make the decision
3. this is the distinction on which the entirety of Hamdan balances
ii. Broad language EXCEPT: it is limited to those who were involved in 9/11 – this alone would not
have worked for Iraq
b. Hamdi v. Rumsfield, 2004:
i. Hamdi is a US citizen captured in Afghanistan who is suspected of fighting for the Taliban, held
in Guantanamo. US government maintains that Hamdi is an “enemy combatant” and may be held
without trial. Plaintiff’s father files habeas. Supreme Court determines whether or not is
appropriate for the federal government to detain those it designates as “enemy combatants.” Court
holds that it is unnecessary to treat whether or not the PResidnet has the power to detain these
persons under Article II because Congress has given authorization under the AUMF. Detention
prevents captured individuals from returning to war against the United States. AUMF does not
use specific language of detention and cannot sustain detention indefinitely.
ii. Court says Hamdi deserves a meaningful and timely hearing to determine his status and the
charges against him.
iii. Balancing issues: the Mathews test – weighing the private interest affected by government action
against the government’s asserted interest.
iv. A citizen detainee seeking to challenge his classification as an enemy combatant must receive
notice of the factual basis for his classification and a fair opportunity to rebut the government’s
factual assertions before a neutral decisionmaker
v. Souter and Ginsburg say that the legislative framework must specifically authorize detainment
after Korematsu. Structure and constitution: “the branch of government asked to counter a serious
threat is not the branch on which to rest the nation’s entire reliance in striking the balance
between the will to win and the cost to liberty.”
1. Souter relies on two other canons of construction rather than using last in time:
a. Charming Betsy. Interpret so as not to interfere with/violate international law.
b. Where there are two statutes, the more specific trumps the more general.
c. The President arguably has the authority to detain 600 people under the Authorization on the Use of
Military force. The argument that this does not work is that it authorizes force, not detention. Technically,
you don’t have to go this far because of necessary and proper considerations (what else would you do if
you captured them?). What the Court avoids by finding statutory authorization is that there is inherent
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executive power to authorize this under Article II. Doesn’t have to either argue or conclude that
Executive Vesting/Commander in Chief clauses are enough.
i. Rights analysis: The detention is authorized, but it doesn’t mean that it is lawfully conducted. The
government wants the fact that Hamdi was seized in Afghanistan to be sufficient reason to keep
him. The Court says that due process demands that you can challenge the factual basis on which
you were detained.
ii. Additional notice demand
iii. The right to counsel is not explicit, but the Court implies that Hamdi should have it “by now.”
d. Government response was Combat Status Review Tribunals. Quick administrative hearing to determine
the “status” of combatants. International law becomes more important in Hamdan because it reads
Congress to have incorporated the Geneva Conventions in creating tribunals.
e. Post 9/11 detentions at Guantanamo – potential precedent:
i. Ex parte Quirin, Johnson v. Eisentrager (1950): habeas corpus petition filed by 21 German
nationals held at a US military prison in occupied Germany, In re Territo (1946): US military
could hold even a US citizen in custody as a POW until the end of hostilities – US citizen
captured while serving with the Italian army in WWII
1. 1949 Geneva Conventions Relative to the Treatment of Prisoners of War – defines POWs
and gives guidelines for their appropriate treatment once captured
2. 2/7/2002: White House says that al Qaeda detainees and Taliban prisoners do not qualify
for POW status under the Geneva Conventions – al Qaeda is not a state and is not party to
the Convention – the Taliban have not sufficiently distinguished themselves from the
civilian population of Afghanistan to be treated as part of the military. Both the US and
Afghanistan are signatories of the Geneva Conventions, but the US government argues
that those held at Guantanamo are not POWs but “enemy combatants” and so cannot be
given the same treatment
a. The US has detained POWs and enemy forces on American soil several times in
its history
b. The Bush Doctrine: President has the constitutional power to retaliate against
terrorist groups posing a threat to the United States and also those states that may
be harboring terrorists. The United States may deploy force preemptively against
those suspected of terrorist involvement, whether or not they participated in the
events of 9/11.
ii. Rumsfield v. Padilla (2004): petitions for habeas corpus should be filed in the district where the
detainees immediate custodians are located – AUMF does not authorize the protracted and
incommunicado detention of American citizens captured in the United States
1. Padilla v. Hanft (2005): President has the authority to detain Padilla under the AUMF –
government presented evidence that Padilla had associated with forces in Afghanistan
hostile to the US government and planned to blow up apartment buildings upon his return
to the United States
iii. The United States occupies Guantanamo pursuant to a 1903 lease agreement with Cuba that
allows the US to use the land so long as it is never abandoned. Rasul v. Bush (2004): US district
courts have the jurisdiction to hear cases brought by those held at Guantanamo – Guantanamo
sufficiently within the “control” of the United States to confer jurisdiction
1. Government argues that this is an improper extension of habeas corpus
2. Scalia and Rehnquist believe that this should have been accomplished by Congress if it
was going to happen
3. Kennedy and others believe that Guantanamo is sufficiently American to support
extension of the US legal system to prisoners
iv. Executive Branch responds to the Guantanamo cases by providing Combatant Status Review
Tribunals to review challenges brought by detainees
1. each detainee is given notice of the factual basis for detention and the opportunity to
confer with a “personal representative” (not a lawyer) to challenge the designation as an
enemy combatant
2. the challenges are heard by panels of commissioned officers
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v. Also establishes the Administrative Review Board in 2004 to consider whether currently-held
detainees should remain in custody or be released, with or without conditions
1. Khalid v. Bush (2005): nonresident aliens captured and detained outside of the United
States have no cognizable constitutional rights
2. In re Guantanamo Detainee Cases (2004): the fundamental rights of the Constitution
(including the due process liberty right) apply to all those in US custody, including
detainees
vi. Executive Branch gives the military commissions/tribunals the power to try:
1. Present and former members of al Qaeda
2. Individuals who “engaged in, aided or abetted, or conspired to commit, acts of
international terrorism, or acts in preparation therefore, that have cause, threatened to
cause, or have as their aim to cause, injury to or adverse effects on the United States, its
citizens, national security, foreign policy, or economy
3. Those who knowingly harbored any of these individuals
4. These tribunals are authorized to try defendants for “any and all offenses triable by
military commissions that such individuals are alleged to have committed.”
vii. the President claims the authority to establish commissions and use them to try detainees under
the Commander in Chief power, the AUMF, and the UCMJ
1. Upheld by Hamdan v. Rumsfield (2005)
viii. 2004: Press obtains executive memos on the rights of detainees and other subjects relevant to the
war on terrorism
1. perceived that the aggressive position of these memoranda fostered a climate that led to
the abuse of prisoners
2. most controversial concerns the use of torture on prisoners or war
a. argued that the President was not bound by the torture statute when using the
Commander in Chief power
b. withdrawn in the summer of 2004
XII. States and Foreign Relations: Preemption
a. Preemption: An issue of federalism.
i. U.S. v. Belmont, 1937: States cannot make compacts with foreign nations unless Congress
approves. The ultimate power of foreign affairs lies with the national government. However, there
will be times when the exercise of national power over foreign affairs conflicts with state laws.
The law is settled: This triggers the Supremacy Clause. The Constitution, treaties, and
federal laws are superior to state law. Customary international law is less clear.
ii. States often regulate foreign nationals’ activities in the US. State courts decide some cases with
foreign parties. BUT, states are precluded from entering treaties. They may enter informal
agreements.
iii. Premption may be found in several circumstances:
1. Express preemption: federal statute or treaty says that the state may not make any laws
respecting that subject or area
2. Implied preemption: Turns on the intent of Congress to preempt or not. May be:
a. conflict: impossible to comply with the federal statute and a conflicting state
law.
b. obstacle: identifies the “purpose and objectives” of the federal statute that is
silent on preemption. If the state statute is an obstacle to the purposes of the
statute, it is preempted.
c. field: federal regulatory scheme “so pervasive” as to imply that Congress left no
room for the states to supplement. “Federal interest” may also preclude. This is
dormant foreign affairs preemption.
iv. Preemption as a method of interpretation: Courts often assume that Congress does not intend to
preempt state law, especially the historic police powers of the States unless it makes preemptive
intent clear. This is part of a structural understanding of federalism. Congress is supposed to
consider federal-state balance in making law. There may be a presumption in favor of preemption
for foreign relations statutes. There is a federal power over foreign relations.
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b. Hines v. Davidowitz, 1941:

i. Concerns over the validity of PA’s Alien Registration Act. The act was more stringent than that
of the federal government. Black says that the protection of the rights of foreign nationals is the
responsibility of the federal government. Treaties of amity guarantee rights for foreign
nationals/Americans abroad. Reciprocal. Field preemption on naturalization. Dissent says that as
long as compliance with both is possible, the state statute should be upheld.
c. De Canas v. Bica, 1976:
i. California law concerning the employment of illegal aliens. Because the provision deals with
local employment, it is upheld. The Court is not going to presume that the INA preempts CA’s
attempt to deal with a discrete local problem. Operates on locals and people who were never
supposed to work in the US in the first place.
d. Crosby v. National Foreign Trade Council, 2000:
i. MA tries to enact its own sanctions against Burma. The Court holds for preemption because the
federal government has its own sanctions and individual state action lessens the President’s
diplomatic leverage. MA Act causing trouble in NATO. Failure of Congress to prohibit the states
from establishing their own sanctions does not create permission
XIII. Treaty and Dormant Preemption
a. Supremacy Clause rationale: Madison wanted a Congressional veto over all sate legislation. Violations of
the Treaty of Paris by the states lead to the Supremacy Clause. Arguably makes all treaties self-executing.
Instinct of the Court is to analogize treaty preemption to statute preemption. Quicker to find preemption
because of deference to the federal government’s authority in foreign affairs. Slower because treaties are
negotiated by the executive and there is no populist ratification.
i. Treaties can invalidate state statutes, which is problematic because the states are presumed to be
closer to the people and more democratic. BUT, the President is democratically elected. Treaties
in the Senate are killed by 2/3+1. There could be an overwhelmingly popular treaty that’s killed
by a single state or a single vote.
b. Clark v. Allen, 1947:
i. Real and personal property left by a resident of California. She bequeaths her estate to relatives
in East Germany. Treaty has relevant portions. Court concludes that real property and personalty
are different. Treaty misinterpreted by an earlier court, but Article IV of treaty does not cover
personalty.
c. In re WWII Era Japanese Forced Labor Litigation, 2000:
i. POW sues Japanese companies for compensation based on slave labor during WWII. CA
reparations statute allows individuals to sue, but the US settled all claims in the Treaty of Peace.
Court looks at the travaux of the treaty and determines that the fundamental goal of the agreement
was to settle the reparations issue with some finality.
d. Only self-executing (or executed) treaties preempt inconsistent state law. Courts must answer prior
interpretive question of whether treaties are self-executing or not. The Court has held that the treaty
power is not limited to the scope of Congress’s legislative powers. There is no decision on whether
preemption should be the presumption of treaty interpretation.
e. Special deference often given to the interpretation of the executive branch. If a treaty is ambiguous, it
should be interpreted based on any accompanying materials.
f. A federal statute can preempt state law only if the statute is constitutionally valid.
g. Zschernig v., Miller, 1968:
i. Residents of GDR are the only relatives of a decedent. Members of the State Land Board want to
escheat the proceeds of the estate based on Oregon state law. Oregon statute affects international
relations. This is dormant foreign affairs power. We don’t know if this is good law because this is
the only case and it’s heavily criticized. Harlan concurrence agrees that statute is preempted by
the treaty and the Court doesn’t need to treat whether or not the statute infringes on the
international relations powers of the federal government.
ii. Nature of the constitutional grant makes this the exclusive domain of the federal government. If
the states can undermine US foreign policy, it violates a dormant foreign affairs power in the
federal government.
iii. Zschernig is weak precedent.
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h. Article VI: No domestic law may contravene provisions of ratified treaties. A strong reading of the
Supremacy Clause. A colorable reading of the text suggests that treaties do not have to be subservient to
the Constitution. This is questionable (195 countries, 195 answers).
i. Tricky technical note: There is no “in pursuance” language in the Supremacy Clause because the first
treaty ratified by the United States was the Treaty of Paris, which predates the Constitution.
j. American Insurance Association v. Garamendi, 2003:
i. 1999 CA disclosure statute applies to all who issued insurance in Europe between 1920-1945.
Holocaust Victim Insurance Relief Act. The District Court ruled for the insurance companies, the
9th Circuit Court of Appeals reverse. The Supreme Court held that California’s HVIRA interferes
with the president’s ability to conduct the nation's foreign policy and is therefore preempted. The
Court reasoned that an exercise of state power that concerns foreign relations must yield to the
Federal Government's policy or that generally there is executive authority to decide what policy
should be implemented. Based on an account of related international negotiations, the Court
found sufficiently clear conflict between HVIRA and the President's foreign policy. "The basic
fact is that California seeks to use an iron fist where the President has consistently chosen kid
gloves," wrote Justice Souter. Justice Ruth Bader Ginsburg, joined by Justices John Paul Stevens,
Antonin Scalia, and Clarence Thomas, dissented, arguing that no executive agreement or other
formal expression of foreign policy expressly disapproved of state disclosure laws like
California's HVIRA.
ii. Sole executive agreement. U.S. v. Belmont says that these may sometimes preempt state law.
Garamendi may suggest that the executive branch, not the federal courts, is better equipped to
determine which state laws and policies unduly interfere with national policies. Seen as
concentrating power in the executive branch.
k. Prior to Zschernig, courts did not preempt state foreign relations activities in the absence of controlling,
enacted federal law, even though states frequently caused foreign affairs controversies.
i. This is primarily functional. State courts are not as well suited as the federal branches to perform
the foreign relations inquiries in support of dormant preemption. The political branches cannot
redress every state foreign relations activity, but the federal courts are in a better position to
identify and police US foreign relations interests.
ii. Post-Zschernig, the Court often applies foreign commerce clause preemption
l. Holmes v. Jennison, 1840:
i. Taney – federal power in “foreign intercourse” is exclusive. There is no concurrent state power to
extradite.
m. Immigration may be another area of dormant foreign affairs preemption – however, states exercised many
rights over immigration in the 19th c. This is defeated with a broadened use of the commerce clause.
n. Ashwander v. Valley Authority, 1936:
i. The Court will not pass upon a constitutional question although properly presented by the record,
if there is also present some other ground upon which the case may be disposed of… thus, if a
case can be decided on either of two grounds, one involving a constitutional question and one of
statutory construction or general law, the Court will apply only the latter.
o. Generally, statutes requiring constant examination and comment on foreign affairs by the states are likely
to violate the federal foreign affairs powers, but those requiring a single action (MD’s divestiture of
holdings in RSA) may pass muster
XIV. Treaties and Other International Agreements
a. Self-Execution
i. Under the Supremacy Clause, the presumption was that all treaties should be self-executing. In
the absence of legislation, only self-executing treaties are judicially enforceable in courts of the
US.
ii. Foster v. Neilson, 1829:
1. A treaty is a contract between nations. Marshall argues that those that take the form of
contract language are not immediately enforceable (i.e. “each party undertakes”). Terms
must stipulate or infer that the document applies immediately.
2. Treaty specificity is sometimes used to infer self-execution.
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iii. Asakura v. City of Seattle, 1924:

1. Japanese citizen wants to open a pawn shop. Local law forbids, but this would violate a
treaty between the United States and Japan allowing Japanese citizens the same rights as
all native citizens in either country.
iv. United States v. Postal, 1979:
1. Drug boat case. Treaty implicated is the Convention on the High Seas. 3mile limit on
boarding v. customary US 12 mile limit. Treaty is found not to be self-executing because
it doesn’t appear that the US would waive customary jurisdiction in a self-executing
document. The treaty also uses the phrase “take necessary legislative measures to…”
2. Self-execution is a matter of intent for the courts. Requires the court to discern the
intent of the parties, which may 1) be inferred from the language of the agreement
or 2) from the circumstances surrounding its promulgation.
3. Should consider:
a. The purpose of the treaty and the objectives of its creators
b. The existence of domestic procedures and institutions appropriate for direct
implementation
c. The availability and feasibility of alternative enforcement methods
d. The immediate and long-range consequences of self- or non-self execution.
4. Some multilateral treaties will never contain self-execution language because countries
like Britain could not ratify them. Each country is to implement the treaties in their own
way.
v. Frolova v. USSR, 1985:
1. American marries a commie who gets stuck in the USSR. She sues the Soviets over loss
of consortium, etc., under the UN Charter. FSIA is implicated, but Frolova argues that the
USSR’s actions abrogate its immunity because it violated the UN Charter. The court says
that treaties are the law of the land, but when they are not implemented by legislation,
there is no private right of action. Charter held not to be self-executing. There is no basis
for concluding it provides a private right of action.
2. The UN Charter was “revolutionary.” It ended the “black box” model of international
relations. For the first time in history, nations are concerned with how other nations treat
their people in their own territory.
3. Law alters the calculus of how nations and actors behave: 1) diplomatic representations,
2) shame in human rights reports, 3) transnational bodies with binding force, 4) finger-
pointing in the UN
b. Restatement (Second) of the Foreign Relations Law of the US on Determining Self-Execution:
i. Language and purposes of the agreement as a whole
ii. Circumstances surrounding execution
iii. Nature of the obligations imposed by the agreement
iv. The availability and feasibility of alternative enforcement mechanisms
v. The implications of permitting a private right of action
vi. The capability of the judiciary to resolve the dispute
c. Treaties may be unenforceable: 1) may be a matter of intent, 2) obligation imposed by the treaty may be
of a type that, under separation of powers, cannot be enforced by the courts, 3) treaty might be judicially
unenforceable because the treaty maker lacks constitutional authority, 4) may not establish a private right
of action.
d. The Senate and the President often attach declarations concerning the self-execution of particular treaties.
e. The Last-In-Time Rule
i. Whitney v. Robertson, 1888:
1. Hierarchical control between statutes and treaties. A dispute about import rates for
Dominican and Hawaiian sugars. The treaty with Hawaii was enacted after the one with
the Dominicans, and supersedes the older agreement. If treaties respect the same subject
and cannot be implemented at the same time, the latter treaty controls the obligations of
the US.
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ii. The democratic argument against treaties trumping statutes is that statutes should prevail as the
work of the legislature, which is the most democratic arm of the government and has to approve
every piece of legislation. However, if you allow subsequent statutes to trump treaties, there is a
chance that a nation will be in violation of treaty obligations.
iii. Cook v. US, 1933:
1. Ships bearing alcohol. Treaty concerning the boarding of British ships within one hour
of the coast postdated the statute conferring jurisdiction to board vessels within 12 miles
of land. Treaty held not to have been abrogated when the statute was reinstated. A treaty
will not be deemed to have been abrogated or modified by later statute unless such
purpose on the part of Congress has been clearly expressed.
iv. Breard v. Greene, 1998:
1. Paraguayan facing execution in VA argues Vienna Consular rights. The Court determines
that Breard waived his right based on state procedural rules. A statute passed codified the
rules after the treaty was ratified. The subsequent statute rendered that portion of the
treaty null.
XV. Separation of Powers
a. Edwards v. Carter:
i. Panama Canal case. Carter tries to give the canal zone back to Panama, Congress objects. Article
IV §3, clause 2 gives Congress the power to administer the territories of the United States. Court
holds that Congress and the President have concurrent authority under a textual and structural
reading of the Constitution. There is a relationship amongst constitutional clauses. There are
certain clauses that require the House, there are others that do not. There are enough procedural
safeguards in the treaty clause to allow the President and the Senate to give away territory as
necessary. Works either through the property clause OR the treaty clause.
XVI. Delegation of Authority to International Institutions
a. The 20th c. political problem is what to do with the fourth branch of government, which is a creation of
the Progressive Era and the New Deal. How does this fit into the separation of powers? The branches of
national government have also begun to delegate outward.
i. UN Security Council
ii. World Trade Organization
iii. North American Free Trade Association
iv. NATO
v. International Court of Justice, etc.
b. The rationale behind outward delegation is that statutes cannot be passed fast enough or in sufficient
detail to coordinate between multiple countries. We create internal rules with statutes and external rules
with treaties (which create external organizations). Flaherty calls this generativity.
c. International Court of Justice: Breard, Boumedienne, Medillin – dealing with the effect of ICJ decisions
on US domestic law. The US signs and ratifies a number of treaties that profess to have domestic effect.
Problematically, the ICJ creates a court that trumps the judgments of the United States Supreme Court if
the US submits to jurisdiction. The problems with this is that Article III provides protection for
independent judges by guaranteeing their salary and lifelong positions on the bench so that there can be
no retaliation for unpopular decisions. The ICJ judges have no such protection, but countries choose to
submit to its jurisdiction, so the argument is that it’s “good enough.”
d. Delegation doctrine is dead in the US after the New Deal. The administrative state cannot run without
delegation. There is a question of whether international delegation should be subject to different rules.
e. Appointment: President + consent of the Senate. “Unelected judges” argument is misleading because all
of the justices have a democratic pedigree. After all, they cannot be approved without the support of 2/3
of the federal government.
f. Constitutional limitations: The US cannot delegate away some powers, like that of appropriations.
g. Missouri v. Holland:
i. Missouri is trying to prevent a game warden from enforcing the Migratory Bird Act and argues
that Congress went beyond its power in enacting it. The Court assumes that had it not been a
treaty, it would be unconstitutional. This is more about a grant of power than about rights.
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Suggests that Congress can go farther than its enumerated and plenary powers would allow if it is
enforcing a treaty. Fuzzy logic, but the Court buys it.
h. United States v. Lue:
i. Chinese kidnapping case. It’s federal because there’s a treaty on point. Defendants say that
there’s a problem with the treaty because it requires the US to enact domestic law and the
convention is about international kidnapping (treaties should deal with “international” things).
The Court presumes that foreign nations aren’t going to make treaties about domestic issues and
says that there are few subject matter limitations on treaties. The treaty clause + necessary and
proper can extend constitutional power (particularly under the commerce clause).
XVII. Treaties and Other International Agreements
a. Public international law regulates how nations and other public organizations interact with one another.
For any international law, the question is where to find it. Article 30 of the UN Charter (which creates the
ICJ) lists four sources:
i. International agreements: Treaties (mostly analogous to contract law), agreements, conventions,
compacts. These are deliberative. Vienna Convention on the law of treaties outlines exceptions,
how to form, etc. Treaties often have:
1. Reservations: ex: CEDAW – womens’ rights treaty – Article 16 involves full equality in
marriage – countries that ratify often do so subject to reservations, like “We will not
abide by Article 16.” The treaty is in force with the exception of reserved articles. As a
matter of law, the country that excepted to a provision of the treaty cannot be challenged
subject to the reservation.
2. Understanding: “Weasel form” of reservation. “We sign on to the treaty, but we do not
understand Article 16 to allow for equal rights in child custody in marriage dissolution.”
a. Understanding “flips” into a reservation if called out for violation for the term in
the understanding.
b. Must be done at the outset of ratification, not upon challenge.
3. Declaration: Tells the rest of the world a domestic legal position.
a. The United States usually gives a non self-execution declaration
b. We are presumptively monist, but you cannot raise a treaty in US courts until it
has been formally enacted by Congress in domestic law.
c. The Supreme Court has never had to decide whether or not the Geneva
Conventions are self-executing.
ii. Customary international law.
iii. General principles of the legal systems of civilized nations. If a court is trying to solve an
international dispute and there’s no international law on it, it can borrow from the common or
civil law system.
1. Ex: Court is attempting to determine a dispute in which there is no statute of limitations –
it may borrow a statute of limitations from a common or civil law country
iv. Judgments of transnational and domestic courts on questions of international law. Supplementary
evidence to come up with the proper standard of interpretation.
b. The Ackerman and Tribe debate: was the NAFTA agreement constitutional?
c. Made in the USA Foundation v. United States (2001):
i. Congressional executive agreement on trade. Doesn’t go through the treaty clause. Argument is
whether Article II method is the only way to make an international agreement. One would have to
put a lot on the compacts clause in order to make the argument that there are other acceptable
international agreements. The best argument is under the commerce clause. The “natural reading”
argument – why specify one method if another is “just as good”?
ii. The strongest evidence is that between 1789-1989, there were:
1. 1,501 treaties
2. 12, 880 executive agreements
iii. This is CUSTOM. The branches have created something functional that supplements the
Constitution.
iv. Most trade agreements are tracked through Congress. The President decides what will be a treaty,
a congressional-executive agreement, or a sole-executive agreement. Originally, the Senate was
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seen as a small body that would be participating in the negotiation of agreements. This failed with
the first treaty and original understanding drops out.
d. Memorandum from Walter Dellinger
i. Tribe’s “Second-Best Move” – really big and important things should be tracked as treaties –
something that alters the relationship between federal and state government
1. How do you define “significant redistribution of federal-state power”?
2. As long as Congress has the power to regulate in that area, the president has the power to
track it
e. Biden-Helms Letter
i. Criticizes Bush’s proposed “handshake agreement” with Russia on arms – the Senate is getting
dissed.
XVIII. Sole Executive Agreements
a. US v. Belmont, 1937:
i. Russian corporation owes money to an individual in New York. The USSR dissolved the
corporation and nationalized its assets, but allows petitioners to have their money once the US
recognizes the USSR. There’s an executive agreement – can the President bind the US on his
own? The Communists win, which implies that the President can make binding international
agreements that trump state law.
b. Sole executive agreements: Tend to be fairly circumscribed and closely tethered to an express grant of
foreign relations power. Receive ambassadors clause, power to recognize, etc.
i. Garamendi is a problem. Implies that statements of low-level executive officials could trump
state law under inherent executive authority. Unclear how it will be applied prospectively.
XIX. Customary International Law
a. How do you argue customary international law? Demonstrate that a number of nations have a similar
policy for x number of years. Establish:
i. Generality. Have a whole lot of countries behaved a certain way to respect a certain right or
establish a certain rule for a long time? There is no precise number. 50 appears not to be enough,
195 is.
1. Ex. Death penalty (137-195) or 194-1* on the execution of mentally handicapped
persons.
2. No consensus on the amount of time necessary.
3. What about statement v. practice? What happens when countries claim to be against
torture, but do it privately? The majority opinion is that there is a civilizing force to
hypocrisy. If the countries have to do it privately, it suggests that they know it’s wrong.
Minority: if countries are still doing it, their formal commitment doesn’t matter.
ii. Opinio juris: Things done out of sense of legal obligation. Circularity problems: trying to
establish that people are obligated to an international rule when you’re trying to show the rule in
the first place. Inferred because of generality. Countries may opt out, but they are likely to be
outnumbered.
1. Treaties are an affirmative acceptance of obligations. This is “undemocratic” because it
can become the law without people ever consenting to it. However, it’s passive consent.
Countries could object at any time, but if they don’t, they’ve consented to having
particular international obligations.
a. This is analogous to custom and substantive due process rights.
b. When people in the population recognize a right for a long time, it becomes
constitutionally protected.
b. Status of customary international law: just because a treaty is non self-executing doesn’t mean it can’t be
violated. Not implementing a non self-executing treaty can be a violation.
c. Customary international law is incorporated judicially through legislation, particularly the Alien Tort
Statute.
i. The basis on which courts incorporate international law is legislative. The court cannot create a
cause of action whenever it wants. If Congress doesn’t bring in CIL, it can be asserted: 1)
Directly (as though Supremacy Clause read Treaties, Constitution, and CIL), or 2) as a treaty.
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ii. The Alien Tort Statute seems to suggest is that the open-ended incorporation of CIL is possible in
the US system.
d. The Paquete Habana, 1900:
i. Cuban fishing boats captured at a blockade by the American Navy during the Spanish American
War. Delivered to a US port. There is an international law principle that respects the immunity of
fishing boats in conflict waters. Court uses history, both international and US. The US exempted
Mexican fishing boats during the Mexican-American War. Secretary of the Navy orders the
blockade after a presidential proclamation, changes the order.
ii. “International law is part of our law, and must be ascertained and administered by the courts
of justice of appropriate jurisdiction, as often as the questions of right depending on it are duly
presented for their determination.”
iii. Suggests federal common law.The law somehow applies on its own.Sabbatino suggests that not
all federal common law was killed by Erie. The federalism concerns that motivated Erie (national
law of torts, contracts, etc. will detract from local law) are not present because states cannot
contribute to international law. There are still democratic concerns, but federal common law
incorporating customary international law has trumped state law.
e. Alien Tort Statute: The ATS confers jurisdiction onto suits by aliens for torts committed in violations of
the law of nations. “The district court shall have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a treaty of the United States.”
i. “Arising under” jurisdiction and Diversity Jurisdiction: there are potential jurisdictional issues
because it is not clear that common law is sufficient for “arising under” and because there are
aliens on both sides of the suit, diversity is problematic.
f. Filartiga v. Pena Irala, 1980:
i. Aliens suing aliens in US courts. Torture and murder case. The Alien Tort Statute has more value
for “naming and shaming” than anything. There may be no cause of action in the home country.
g. Sosa v. Alvarez-Machain, 2004:
i. Whether the ATS creates a cause of action, seems to be purely jurisdictional. The Attorney
General argues that there’s no cause of action because Congress would have to supply it. This
doesn’t make any sense: why would the court hear a question jurisdictionally if there was no right
attached? Teasing out a cause of action requires a federal common law analysis. The legislature
POSITS law – law is not plucked out of the air.
ii. 18th Century courts fashion causes of action: Under the law of nations, causes of action are only
those that meet the same requirements or characteristics as those envisioned by the 18th century
Congress Not limited to a “snapshot,” but new violations should have shared characteristics with
the original causes of action
iii. Essential ruling is that, unlike today, a statute that reads as if it’s purely jurisdictional when
enacted in the 18th century is best understood to show that common law powers of the court
should be used to bring international law into the system in causes of action.
iv. Doe I v. Unocal Corp. (p 547, note 6): U.S. Corporation was building a pipeline through
Myanmar – in contrast to the Coca-Cola Litigation, Unocal worked very closely with the
Burmese government – went through minority areas, disrupted communities – allegations that
Burmese security forces engaged in systematic rape, extrajudicial executions, and murder –
allegations that Unocal knew about it and provided the Burmese government with information
and support that helped them in the campaign
h. Sources for the ATS? Law of nations  customary international law. Why would the 18th c. government
enact this law? 1) Reciprocity with other nations, 2) Remedies to aliens in its jurisdiction, 3) Looks less
wimpy.
i. To find a rule of international law, the Sosa court looks at generality (collapsing opinio juris – a sense of
obligation) and a new quality, specificity.
i. All of these causes of action have been recognized (except rape, which is a crime against
humanity)
ii. Specificity looks new and threatening  what if the categories were unspecific? what if there are
multiple 18th century definitions of piracy? If the cause of action has to be like ____ in terms of x
qualities, then newer suits may be applicable and create different causes of action. The Court
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assumes that piracy, etc. were specific… but what if they aren’t? A modern tort cause of action
has to be general and not specific. The history could flip what the court thought it was doing
iii. Is this truly meant to be an 18th century snapshot?
1. The law of nations was meant to be evolving
2. Even in the 18th century, lawmakers understood that this law would change and so
recognizing only those rights contemplated in 1791 is unrealistic and improper
j. If none of these “worked,” this would have killed off ATS litigation  new causes of action require
GENERALITY and SPECIFICITY that reflects the generality and specificity of the three torts mentioned
in the opinion
k. Why should courts be careful and prudent about fashioning new causes of action?
i. Judges ought not to legislate (separation of powers concerns)
ii. Worries about courts usurping democratic (legislative) power
iii. Erie – no federal common law
iv. No natural law – law cannot be discovered, it is made  democratic positivism
v. Potential implications for the foreign relations of the United States – not good for courts to make
law for other nations
vi. Causes of action are specifically expressed in statutes
vii. Courts should not make foreign policy
l. Causes of action are dynamic, but there are limitations (see above and Bradley and Goldsmith’s article –
but B&G see this as a reason to read only a jurisdictional message
m. The Sosa Court is sending mixed signals. What does this mean for ATS suits? The Court recognizes
torture, extrajudicial murder, genocide, etc. as appropriate crimes under the law of nations to be pursued
under the ATS.
n. Corporations don’t count. The CORPORATION is being sued under Unocal, but it didn’t carry any of
these crimes out directly. Many of the ATS crimes will have a state actor requirement. There will be
exceptions, but they are narrow
i. Has the definition of state actor expanded in a way that’s going to include corporations? If it’s not
a state actor, you could nail a corporation in legal or colloquial terms by aiding and abetting the
crimes. As international law, has private entities aiding and abetting the actions of states against
the law of nations made it into the categories of generality and specificity?
o. Sosa validates the suits that are in place at the time of Sosa, but it sort of complicates suits going forward
after the ruling (like those involving corporations)
p. Modern international law comes from the Peace of Westphalia. Sovereignty doctrine protects nations in
the law, but non-state actors are arguably as powerful or more powerful than some states (i.e.
corporations, terrorist organizations, non-governmental organizations, separatist governments). As a
general matter, a form of law based on how nation-states behave is not very good at capturing the
behavior of non-state actors who are not included.
i. ATS suits against non-state actors do not tend to succeed. There’s a lot of bad behavior that isn’t
covered.
q. Kadic v. Karadzic, 1995:
i. Bosnian war crimes case. Croat citizens bring suits against separatist leader from the former
Yugoslavia. Yugoslav republic (Milosevic) and the Bosnian group Republika Srpska, led by
Karadzic. Accused of war crimes, genocide, death/torture/degrading treatment. Genocide – the
international community has “worked out” genocide sufficient to bring it as a cause of action
under international law. Convention on Genocide, Genocide Convention Implementation Act.
Defines genocide.
ii. War crimes fall under the laws of armed conflict. International law imposed an affirmative duty
on military commanders to take appropriate measures within their power to control troops under
their command. Thus, under the law of war as codified in the Geneva Conventions, all "parties"
to a conflict--which includes insurgent military groups--are obliged to adhere to these most
fundamental requirements of the law of war.
iii. The offenses alleged by the appellants, if proved, would violate the most fundamental norms of
the law of war embodied in common article 3, which binds parties to internal conflicts regardless
of whether they are recognized nations or roving hordes of insurgents. The liability of private
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individuals for committing war crimes has been recognized since World War I and was confirmed
at Nuremberg after World War II, see Telford Taylor, Nuremberg Trials: War Crimes and
International Law, 450 Int'l Conciliation 304 (April 1949) (collecting cases), and remains today
an important aspect of international law, see Jordan Paust, After My Lai: The Case for War
Crimes Jurisdiction Over Civilians in Federal District Courts, in 4 The Vietnam War and
International Law 447 (R.Falk ed., 1976). The District Court has jurisdiction pursuant to the
Alien Tort Act over appellants' claims of war crimes and other violations of international
humanitarian law.
iv. There is going to be a problem holding this individual responsible because his actions are the
province of state actors. This is aiding and abetting.
r. In re South African Apartheid Litigation, 2004:
i. State actor problem. One theory is to expand the notion of a state actor to include corporations,
but the other is aiding and abetting (this hasn’t worked). Plaintiffs argue that doing business with
a noxious regime should be a violation of customary international law. PR nightmare, not a
violation of CIL. Should courts impose the exhaustion of state remedies?
XX. The Charming Betsy Canon
a. Influence of international law in the U.S. system: prudential norms and canons of interpretation.
American courts interpreting American law differently because of international law.
i. Statutory interpretation
ii. Constitutional interpretation
b. United States v. The Palestine Liberation Organization, 1988:
i. Congress tries to oust the permanent mission of the PLO to the UN with a statute. UN
“Headquarters Agreement.” The PLO was invited to be a permanent observer – they do not have
diplomatic immunity, but allowed to remain in NY as participants. Congress passes a statute – the
intent is to get rid of the Palestinians. However, the Court refuses to read the statute in order to do
that. Theoretically, the later statute contravenes the spirit if not the letter of the Headquarters
Agreement.
ii. Charming Betsy: Whenever possible, a statute will be read so as not to violate the law of nations.
This is a principle of construction:
1. Fiction of congressional intent
2. Where things are ambiguous, Congress surely didn’t mean to violate international law
3. Makes the last-in-time rule asymmetric – there is nothing that says that treaty has to be
specific in abrogating a statute
iii. Constitutional grounds: Paquete Habana: original understanding of federal common law ability
to bring in CIL. Not clearly outlined in the Constitution, but perhaps a matter of original
understanding. Courts making rules to bind the rest of the judiciary. Imposes a drafting rule on
Congress.
c. Ma v. Reno, 2001:
i. Cambodian permanent resident convicted of a capital offense in the US. INS tries to deport him
after his release, but we have no extradition treaty with Cambodia. The immigration statute has a
maximum period of detention. Court says that it is unreasonable for the government to detain Ma
indefinitely. Result allows the Court to avoid deciding based on constitutional issues (implicated
5th Amendment). Comports with the language of the statute and avoids assuming that Congress
intended indefinite detention in the absence of any statement to that effect. Reading “reasonable
time” limitation is consistent with precedent
ii. “Clear international prohibition” against prolonged and arbitrary detention
iii. The status of international law is irrelevant for Charming Betsy.
iv. Fictions of congressional intent (Chevron and Charming Betsy). The Court decides that Chevron
is not applicable where significant constitutional issues are at stake. The idea that Congress is
going to comport with the Constitution is more important than delegation.
1. Bradley thinks that Charming Betsy should knock out Chevron
a. Older
b. Links up to constitutional considerations
c. International consequences
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d. Never decided
d. Reliance on Foreign and International Materials in Constitutional Interpretation
i. Atkins v. VA – 8th Amendment – execution of the mentally handicapped
ii. Roper v. Simmons – execution of those who commit crimes as minors
iii. Lawrence v. Texas – overturning Bowers v. Hardwick
iv. All of these cases interpret domestic law using international law. What should be the basis for this
method of interpretation? What are the objections? This is not clearly established.
v. Defending or opposing the use of international materials:
1. Exceptionalism
2. Selectivity
3. Democratic problems
vi. Roper v. Simmons (2005): Minor convicted of capital murder. The Court relies on foreign
materials to answer the question of whether the United States should execute those who commit
capital crimes as minors. There is no text, history is a tough argument (cruel and punishment,
capital crime looked different in 1791), custom prevails as an argument. The Supreme Court has
self-consciously chosen custom as the prevailing argument for the 8th Amendment. Majority
opinion uses international/external materials as persuasive, demonstrative authority. The U.S. is
the only country sanctioning the practice – world custom is against the execution of murderers.
1. Scalia says that this is nonsense. The world opinion is driving the Court’s conclusion all
along.
2. Judicial globalization: in their off-time, justices get to know other justices. It’s no fun to
be a parochial outlier.
3. Materials used: International law (treaties (some US, some proxies for international
opinion), statistics, comparative law). All about interpreting – not about introducing
international law into US jurisprudence
e. Pros and cons of the practice:
i. Cons:
1. Selectivity – particularly when there is less of a world consensus
2. Democratic objection: Scalia and the “so-called international community.” If the
Constitution is about justice, this doesn’t work. If it’s about “We the People,” Scalia has a
point.
ii. Pros/counterarguments:
1. All of the legal process is selective. Which facts and cases make it into opinions – the
selected, supportive ones.
2. What is the basis for economic, socioeconomic, or psychological analysis? This shows
up in legal opinions all the time.
3. Is this information more problematic than others? How?
4. The Faber College Defense:”Knowledge is good.” If this is persuasive, it shouldn’t get
Scalia’s knickers in a twist.
5. Article V is a tough standard to meet. Maybe there are other ways of helping the
Constitution evolve.
6. The Founding Generation found international legal materials compelling.
International law was important in the early jurisdprudence of the U.S.
XXI. Extraterritoriality
a. Reid v. Covert, 1957:
i. Wives of American military accused of killing their husbands tried by courts martial rather than
by Article III courts. These wives were civilians and therefore inappropriately tried by the
military. 5th Amendment requires trial by jury in criminal cases. Military exception DOES NOT
extend to spouses. Executive agreement with Britain irrelevant because the President cannot
amend the Constitution by changing the way American citizens are treated under the 5th
Amendment. Repugnant to the Constitution to suggest that the federal government can exercise
powers outside of the US that are beyond the powers of the Constitution. Does the Constitution
provide for American citizens abroad?
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ii. Yes. There is no original understanding argument for this because the Founding Generation never
expected the US to have this kind of power overseas. In the absence of original understanding,
etc., the question is open to interpretation. The government is a creature of the Constitution.
Wherever the US exerts power, it can exert no more than is allotted by the Constitution.
b. Considerations of extraterritoriality
i. Power < > right: You cannot speak of governmental actions without constraints. The government
exists because of the Constitution, so whenever it acts, it is subject to the limitations and
authorizations of the Constitution.
ii. Territory
iii. Membership
iv. Balance: Ad hoc balancing. It is different to think about this document abroad.
1. Ross and the Insular Case.
2. Practicality (as well as racism) dominate the 19th century view
c. Ross and the Insular Cases: Government argues that the precedent is not to apply the Constitution abroad.
i. Ross: Criminal trial in Japan. Tried by consul under statute. Impossible to try this person in an
Article III court in the 19th century. Practical reasons – also better not to try in a “non-Christian”
country.
ii. Insular Cases: Unincorporated U.S. territories. The Bill of Rights does not follow the flag.
“These” people are too different to get the protections of the Bill of Rights.
d. Projecting power abroad makes this a serious question: Reid v. Covert links asserting power to the
extension of rights and rejects the 19th century logic supporting earlier cases.
e. Harlan: This result should apply only in felonies and capital cases. Weighing the value of the right against
the wisdom of Congress in enacting the statute. Practicality question.
i. There is no infrastructure to implement the rights of Americans abroad.
ii. Extraterritoriality of rights is going to vary.
f. The Constitution gives no indication of when and where it should apply outside of the U.S.
g. United States v. Verdugo-Urquidez, 1990:
i. VU is captured by Mexican officials and extradited. The officials go back and gather evidence,
but none of it should have been admitted under state exclusionary rules. Rehnquist distinguishes
4th from 5th and 6th Amendments. Cannot avoid the rights analysis. In effect, the Cour adopts the
ad hoc balancing approach. 5th and 6th apply abroad, 4th does not. “People” as a term of art that
does not apply to aliens
ii. Historically, the Bill of Rights is problematic – Madison didn’t want to add it, but his hands were
tied. It was supposed to be inserted seamlessly but ends up as a bill. Maybe the construction isn’t
so specific.
iii. Early courts more concerned with McCulloch-type authority issues, not rights.
iv. Original understanding confirms a membership theory of the Constitution.
h. Guantanamo:
i. Boumedienne: Congress trying to strip habeas from detainees, but fails constitutionally. There
must be either a statutory or judicial means for habeas. Right may only be suspended in times of
internal rebellion.
ii. Rasul: As a statutory matter, Congress meant for habeas to extend to Guantanamo.
i. The Court is going to approach the application of any right extraterritorially using one of the theories
listed above. It will use text, history, etc. to justify that reasoning. There is no single theory.
j. U.S. v. Alvarez-Machain, 2004:
i. Defendant participated in the torture and murder of a DEA agent in Mexico. DEA puts out a
bounty. AM kidnapped and brought to the US for prosecution. The case is about other limitations
on US extraterritorial action outside of the Constitution. The problem is that the US has an
extradition treaty with Mexico. It shouldn’t have had him kidnapped. Treaties are meant to be
reciprocal. Treaties are meant to be enforced by governments, not individuals. AM would have to
ask the Mexican government to pursue the claim for him in the ICJ.
ii. AM doesn’t have trouble asserting the treaty.
1. It’s self-executing (bilateral) and very specific.
2. He’s raising is as A DEFENSE.
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3. No concern about a valid cause of action

iii. To assert international law offensively, you need a mechanism (usually habeas corpus) – getting
to court is different from being dragged into court and finding a defense
iv. The Court allows the suit to go forward:
1. Rauscher: Defendant extradited, put on trial for a cause of action that wasn’t listed in the
treaty. Cannot be violated.
2. Ker: Forcible abduction. Government doesn’t offer a bounty, he just ends up in their
custody.
3. Frisbee: Illinois to Michigan
v. Rehnquist reads the precedent in order to point out that there is nothing in the treaty
PREVENTING kidnapping. The treaty needs to be clear about its limits.
vi. Stevens says, if you allow kidnapping, the government participates in bounty hunting. If
Rauscher is so particular, this case should be too. This goes against the spirit of the treaty.
k. Reading treaties
i. Text: is it comprehensive?
ii. Structure: comprehensiveness can infer preemption
iii. Context/purpose
l. Status of CIL in US domestic courts
i. Paquete Habana
ii. Sabbatino
iii. level of executive action
iv. Asserting CIL as a defense:
1. No cause of action necessary.
2. Not in the Supremacy Clause
3. Paquete in your favor
4. Federal common law
5. Trumped by statute
6. High level executives can trump CIL domestically
XXII. Federal Statutes Abroad
a. Turns on the intent of Congress.
b. Equal Employment Opportunity Commission v. Arabian American Oil Co,, 1991:
i. The Civil Rights Act of 1964 held not to apply abroad. There is a presumption against
extraterritoriality for statutes. Petitioner (who was discriminated against for his race while
working in Saudi Arabia) relies on plain meaning of “any person” and “no state shall.” Language
is boilerplate and meant to solve jurisdictional issues in drafting. No foreign dimension to the
statute. Marshall dissents, saying that the court is too quick to use the presumption. Congress does
not have to make an express statement. The rule is meant to protect values against insufficient
Congressional intent in abrogating them. The “alien exception” clause should decide.
c. Hartford Fire Insurance Co, v. CA, 1993:
i. London reinsurers case. Court holds that the Sherman Act applies. There is precedent and the
Court takes it as a given. Concerned with whether international comity should prevent the suit
from going forward. Scalia thinks this should be limited by reasonableness; just because the act
CAN apply, doesn’t mean it SHOULD. Primary acts and actors in question are in the UK.
d. Canons and CIL:
i. Paquete: Customary international law is binding as a rule of decision. Either the courts are using
it directly or they are using federal common law to bring it in.
ii. Sosa: Congress brings in CIL. Give the courts a large role in determining how it should be
applied – Congress giving the courts an ability to make causes of action based in customary
international law.
iii. Charming Betsy: Indirect influence. Interpretation of the statute based on what Congress did or
didn’t want.
iv. Sabbatino: Post-Erie, but the Supreme Court uses the common law making power to incorporate
a rule of CIL (act of state)
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1. Federal common lawmaking concerning international law and the law of nations is
DIFFERENT.
2. The US vis-à-vis other nations. The antidemocratic issues do not apply.
3. The ATS: The piece that’s difficult is jurisdictional because of alien and diversity issues.
e. Hoffman-LaRoche, Ltd. v. Empagran SA, 2004:
i. Where the price-fixing conduct significantly and adversely affects both customers outside and
within the United States, but the adverse foreign effect is independent of any adverse domestic
effect, the FTAIA exception does not apply, and thus, neither does the Sherman Act, to a claim
based solely on the foreign effect. Pp. 4-19. Are there limits to criminal law jurisdiction?
ii. Territorial jurisdiction: Separate sovereigns are sovereign within their own geographical territory.
iii. Prescriptive: When a national commits a crime abroad – it is acceptable to assert jurisdiction to
hold one’s one nationals accountable
iv. Defense: Interests of the country significantly affected by external conduct.
v. Universal: War crime and crimes against humanity.
XXIII. Foreign Sovereign Immunity
a. Justiciability: 1) Act of state, 2) political question, 3) legislative standing
b. Difference between foreign sovereign immunity and the act of state doctrine
i. Act of state is not jurisdictional
ii. Both are derived and developed through customary international law as doctrines designed to
keep the courts of one country from getting involved in what other countries are doing
1. Most of international law pre-human rights is a reciprocal gentlemens’ agreement
2. leadership agreeing to be accountable
iii. Doctrines brought into US courts by Article III courts using federal lawmaking power to bring
down CIL in order to decide cases in absence of constitutional provisions, statutes, treaties.
iv. Foreign Sovereign Immunity Act (1976) codified in order to end the Tate Letter Era of
immunity. Restricting the role of the executive branch in deciding when foreign actors get
immunity.
v. Act of state is JUDGE-MADE. Foreign sovereign immunity is a STATUTE. There is less
discretion for the courts and the political branches.
vi. The substantive difference:
1. Act of state is about acts of foreign governments within their own territory.
2. Foreign sovereign immunity is about the actions of foreign states within the United States
(sufficient contacts, substantial effects)
vii. This is about a party and the party is the sovereign. In Sabbatino, the bank was not sovereign. If
you’re suing a country, likely to implicate FSIA. Instrumentalities are relevant for the purposes of
sovereign immunity
1. Sabbatino was different because the statute hadn’t been passed
c. Verlinden B.V. v. Central Bank of Nigeria, 1983:
i. Verlinden suing the Bank of Nigeria over breach of contract. Nigeria secured the wrong letter of
credit. Brought in the SDNY.Jurisdiction issue because of the diversity problem – this is a
foreigner suing a foreigner. Nigeria wants to claim foreign sovereign immunity, the Netherlands
says this is unconstitutional because Congress exceeded the scope of Article III by granting US
courts subject matter jurisdiction over suits between foreigners. Jurisdiction must be either arising
under or diversity. Diversity requires at least one US party (problem in ATS)
ii. Arising under is tricky: any suit against a foreign state requires the FSIA as a principle of
decision – jurisdictionally, you’re not supposed to use federal statutes as defenses
1. There must be something substantive on which to decide the suit between the parties
(Constitutional, statutory, et.c0
2. The ATS is problematic because it is primarily jurisdictional (See 11.12)
iii. Well-pleaded complaint rule. Not required for constitutionality (Osborn). Suggests that Congress
can go beyond 1331 to confer jurisdiction
1. The history of 1331 suggests that Congress was trying to enable rather than restrict suits
as it came not to trust state courts with the administration of justice.
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iv. There is a chance that the Court is always going to have to treat exceptions in order to decide
whether to take the case. This would be a substantive angle of the FSIA because it must be
partially on the merits.
d. Republic of Austria v. Altmann, 2004:
i. The Nazis stole artwork. People want it back. Question of whether the FSIA is jurisdictional or
not.This is a retroactivity problem – suing Austria for something that happened pre-FSIA.
Rebuttable presumption against retroactivity. Post Tate Letter enactment of FSIA in order to clear
up separation of powers issues in foreign sovereign immunity. Original foreign sovereign
immunity doctrine was comprehensive: whenever a sovereign or any instrumentality thereof did
anything, the courts gave immunity
ii. Changes in the 20th century  restrictive theory of sovereign immunity allows governments and
instrumentalities to be sued for commercial acts, etc.
iii. There is a parallel to the market participant exception to the dormant commerce clause. Where the
state is acting like a private company, it will be treated like a private company.
iv. The Court says that jurisdictional statutes like the FSIA may be retroactive. Retroactivity of
substantive law is dangerous because it is akin to taking; there would be potential denial of rights
and a violation of settled expectations. Jurisdictional law, however, is about forums.
e. The Foreign Sovereign Immunities Act and Jurisdiction
i. What is the precise jurisdictional provision for the FSIA? Jurisdiction has to be granted by
Congress tracking with Article III. There are different kinds of jurisdiction that Congress may
provide to the courts: 1) federal question, 2) party based jurisdiction (diversity plus ambassadors,
etc.), 3) diversity. What is the statutory basis of the jurisdiction in the FSIA cases? is the FSIA the
only jurisdiction that applies?
1. 1330 – actions against foreign states. This doesn’t work under Article III because a
foreign entity is suing a foreign entity in US Courts (presupposes a US entity suing a
foreign state). On what basis is applying 1330 to Verlinden (or cases like it)
constitutional?
a. Cannot be diversity. Without diversity, you have to use federal question
jurisdiction – this is where the exceptions analysis comes in and provides a
substantive basis for the application to meet constitutional standards where there
are non-US parties involved. 1330 enhanced by FSIA exceptions analysis 
calls for substantive analysis – jurisdictional exceptions analysis is not simply
jurisdictional, requires some recitation of facts and merits in order to determine
whether an exception applies
2. 1332 won’t work, so the jurisdictional basis of the FSIA is extremely limited.
XXIV. Exceptions to Sovereign Immunity
a. Saudi Arabia v. Nelson, 1993:
i. Hospital worker hired away to Saudi and then beaten for reporting health code violations. Draws
a distinction between what the hospital did as a private actor and what the police did as members
of the state. Implies that if there were private actors beating Nelson, the case would turn on
whether the action was commercial. Souter trots out the dictionary in order to show that the harm
has to be directly related to commercial activity. This is a linguistic move (a narrow construction
of “based upon”). “Police are the police” and not a commercial entity. A classic sovereign actor.
ii. Problematically, the hospital directed the police to beat Nelson. Nelson is ruining the profit-
making enterprise. Unhelpful to allow foreign nations to lead people away and beat them.
iii. Nature v. purpose of action: this is a categorical analysis of the state’s behavior.
iv. Act of state is more flexible with respect to human rights suits. ATS suits are not generally
against states and avoid the FSIA problem. Courts are more likely to say that act of state does not
apply when there are gross human rights violations.
XXV. Sovereign Immunity Defenses
a. Chuidian v. Phillippine National Bank, 1990:
i. Malicious denial of letters of credit. Whether the individual sued is entitled to foreign sovereign
immunity for acts committed in his official capacity as part of the Philippine government. The
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Court says that FSIA doesn’t explicitly include or exclude individuals. Congress intended the
statute to codify customary international law. CIL generally regards individuals acting in an
official capacity as organs of the foreign state. Cannot infer that Congress intended to allow
unrestricted suits against foreign sovereign officials.
ii. Not discussed in the opinion, but the purpose of the FSIA was to remove the influence of the
State Department from treatment of foreign sovereign immunity.
iii. Arguments related to Charming Betsy conspicuously absent. That standard would be to hold
individuals liable for crimes recognized under international law. Government in this case is
arguing that the FSIA did not disturb the law with respect to individuals and that the executive
controls. Blatant argument for increasing its own power.
iv. Deference to Executive: Reno, Chevron, Skidmore: the fiction is delegation. The agencies have to
act like mini-Congress in order to get deference. If it’s just trying to cover its ass in litigation, the
agency is SOL.
v. Daza may have been acting ultra vires. This might have been a suitable argument (or may tie into
ATS later). But, too bad – the action was official, he’s immune.
b. Ye v. Zemin, 2004:
i. Falun Gong case. You can’t sue the Chinese president because heads of state get immunity.
ii. Jus cogens: A fundamental principle of international law accepted by the international
community of states as a norm from which no derogation is ever permitted. Ex. genocide or the
salve trade. The 1986 Vienna Convention on the Law of Treaties affirmed jus cogens as a
doctrine of international law. May also refer to the legal duties that arise in connection with high
profit crimes, including the duty to prosecute or extradite, the non-applicability of statutes of
limitations, the non-applicability of any immunities up to and including heads of state, the non-
applicability of the defense of “obedience to superior orders,” and universal jurisdiction over
perpetrators of such crimes.
iii. Statutory ambiguity. The court has more power on common law grounds where there is room for
discretion.
iv. Considerations:
1. judicial v. executive role: the executive role is within its scope in foreign policy but the
judiciary is theoretically supposed to take cases as they’re presented – if the interest of
the judiciary is justice, then it should make common law until the executive or the
legislature acts
2. At some point, the idea of international rule of law is going to hit a plateau until more
nations embrace separation of powers – we understand that when a court hears a case, it’s
independent of what the executive branch is doing – presumably, we understand that in
most developed nations, it’s the same point (judicial independence) – why should we
lower ourselves to the concept (held by less sophisticated systems) that the courts only do
what the executive tells them? i.e., sure China will be upset because they’ll think it’s the
executive talking – why not insist to the Chinese that when courts do something under the
US system, it’s not something that the executive or political branches can control?
c. Enohoro v. Abubakar, 2005:
i. FSIA case – 7 Nigerians v. the 8th Nigerian, who is a general on the ruling council. Suit filed in
Chicago. The defendant claims immunity as a general – his individual actions should be covered
by sovereign immunity because he is a state actor. He was only the “head of state” for one year
out of the eight for which he is being sued. Under Ye, he should be covered as an instrumentality.
This is a circuit split. The 9th says he’s covered, this one doesn’t. The Court says that Abubakar is
only immune for the one year he’s active head of state. As an individual, Abubakar argues
immunity for the other seven years.The 9thCircuit used a dictionary definition of “separate legal
person,” the 7th looks at the legal definition. There is nothing in the statute that explicitly names
natural persons. Looking for alternative formulations in other statutes.
1. There is no discussion of legislative history or purpose. Sufficient to focus on the term of
art. Perhaps “legal entity” is a catch-all – there’s the phrase itself, but the context may be
important. Other provisions deal with corporations.
2. You could get around the statute by naming an individual rather than the country.
37
3. The Nigerians can proceed because he’s not immune, but they fail on jurisdiction. They
would have jurisdiction if the FSIA applied.
d. How is there jurisdiction in Verlinden?
i. 1330 allows suits against a foreign sovereign. Contemplates the suits, but these are limited by
diversity considerations. Federal question arises only in the exceptions to the FSIA. It doesn’t
apply to individuals, so there’s no jurisdictional basis for suit.
ii. ATS: 1) aliens, 2) suing for tort only, 3) in violation of the law of nations (which is the cause of
action)
1. The Constitutional problem is Article III, which forces the suits to be federal question to
remain. 9th Circuit says that FSIA isn’t federal question, 7th Circuit says it doesn’t apply.
iii. Arising under MUST include customary international law to keep ATS suits going. ATS would
give the courts federal question jurisdiction. ATS suits can survive if Article III contemplates the
law of nations.
1. If this were an ATS suit, the lawyers should have argued that they don’t need the FSIA
for federal question jurisdiction. Arguing for a broad read on “laws” for the purposes of
Article III. Law cannot mean statutes only.
iv. Verlinden creates a substantive issue. The question is whether determination of exceptions under
the FSIA is really substantive. Answer? Substantive enough.
1. The rejoinder is that the Continental Congress knew how to say “law of nations.” They
could have used it here. The absence is significant.
2. Aesthetic fallacy of the Constitution. Not everything was immediately apparent on that
“hot day in Philadelphia.”
3. Say this is the 9th Circuit. FSIA applies to individuals. Hypothetical ATS suit would have
two sources of jurisdiction
a. 1330 + FSIA = federal question (Verlinden)
b. 1331 (federal question) + ATS = federal question
v. Why doesn’t FSIA knock out suits like Filartiga? Ultra vires argument seems to be the only
argument left. Torture and extrajudicial killing shouldn’t be in anyone’s official job description.
Analogous to scope of employment.
1. Qualifying actions: If it’s not an official act because it’s ultra vires, it never qualified for
FSIA in the first place.
a. Who is the person? Do they qualify?
b. What is the nature of the person’s act?
c. This is like jus cogens, but through the back door. This is about the nature of the
act rather than the motive, which is consistent with Chuidian.
vi. There is no explicit jus cogens exception to the FSIA. Altmann.
XXVI. Medillin Revisited
a. Requires intense critical reading
b. Grapples with the two major issues
c. Once a treaty is signed and ratified, countries have affirmative obligations to refrain from acts that
undermine the purpose and object of the treaty. Binds to a low-level obligation. Ratification binds
entirely.
d. Article 36 of the Vienna Convention on Consular Relations: Individual rights of arrested foreigners.
i. Usually, the US has RUDs.
ii. This slipped through because it’s buried. It’s not really on the table whether this case is about a
substantive right.
iii. Enforcing international law outside of the courts:
1. International tribunal
2. Name and shame function
e. Self-executing nature of the ICJ decision: does it look enforceable? There’s specific and imperative
language, no “undertake.”
f. Corollary right: the United States entered treaty obligations to apply ICJ agreements concerning the
Vienna Conventions. The ICJ decided the case  Mexico took the case and won. ICJ wants the US to
review the convictions under Avena.
38
g. Sanchez-Llanas: Supreme Court is not required to follow the ICJ under Marbury. Supreme Court is to be
the final arbiter of US law. Constitutional considerations are preclusive. Sanchez-Llanas was using as
precedent, but Avena and Medillin are the same plaintiffs.
h. Why or why not is the US bound? The Supremacy Clause carries a presumption of self-execution. There
are no exceptions. The original intent was a rejection of the dualist system.
i. Texas is violating the treaty obligations. The Supremacy Clause was written to keep states from
breaking treaties. Hmmm.
ii. Two inquiries:
1.Is the court changing the presumption or analysis of self-executing treaties?
a. The presumption after Foster is that all treaties are self-executing. Rebutting the
presumption turns on the intent of the parties.
b. Change? Morrison and the commerce clause. Court says in Morrison that it’s not
changing the doctrine, but the result is only the 2nd since 1927 that comes out the
way it does. Inference from result. In framing the doctrine, the Court is
introducing something new – a new threshold question.
c. The Court quotes Hamilton in a curious way that obscures the domestic effect of
treaties.
d. Doctrine stays: These treaties do not make clear an intent to have the decisions of
the ICJ be self-executing. Could be that the analysis is the same, it’s just that
these treaties don’t fit.
2.Are judgments of the ICJ self-executing?
a. The Court says no. Constitutional problems.
b. This is a delegation outward problem. Separation of powers AND federalism
invoked.
i. Separation of powers: President Bush writes a memorandum to AG Gonzales to the effect that the ICJ
judgment should be binding. The US will comply with the rulings of the ICJ. Domestic actor trying to
enforce.
i. Argument under the TC Clause is that the President is executing the laws and this is one of them.
ii. How is the President attempting to keep the US in compliance with Avena? This is a memoranda
to the Department of Justice – curious – not to the state courts. The states would have to revisit
the habeas question in order to comply. This is not clearly an executive order.
1.Bush also TERMINATES the US’s adherence to the protocol. International law will
apply with respect to these 46 Mexicans, but no one else.
iii. Government argues that the President is implementing the treaty – Youngstown zenith or related
argument – the argument is that Congress hasn’t done anything to implement this and so the
President has to act.
1.The Court says that the President is trying to render an international obligation into a
domestic one
2.This is a job for Congress. If Congress does nothing about a non self-executing treaty, it
is an implicit rejection. Silence in a regime that requires affirmative action is
disapproval.
3.There is a dangerous element to the argument being made here  where Congress waits,
it cedes the initiative. Gloss works in favor of the executive.
iv. There is a presumption AGAINST the executive in separation of powers questions. The
government tries to flip the Court by implication and suggests that Congress has acquiesced to
other things. The Court says that this is low-ebb because Congress has acquiesced to things, but
they are not similar enough to this thing to make the argument the government wants.
v. Inherent executive power argument: If not the treaty power, the president relies on other
constitutional grants
1.General foreign affairs authority (vesting argument)
2.International dispute resolution
a. Garamendi: Was there an executive order? No. Statement by midlevel officials.
Criticized for going that far on the issue of preclusion.
39
b. Belmont: US recognizes the USSR. Presidential order nullifies disputes.

Agreement  recognition  receive ambassadors clause.
c. Trying to fit this into a line of cases where there is a more specific justification.
Appropriate executive orders and agreements are closely tethered to the
President’s powers.
i. Receive ambassadors
ii. International agreement
iii. Dispute resolution
3.Not sufficiently tethered. Argument rejected.
j. Conclusion: Up to Congress to implement treaty obligations. May or may not be more difficult to find
treaties self-executing after this opinion.
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U.S. Foreign Relations Law Outline

l. The Guantanamo Cases ..............................................................................................................................................19

a. Turns on the intent of Congress. ................................................................................................................................33

I. Introduction: Medillin v. Texas

b. Theories on “Why a Constitution?”

ii. United States v. Arjona, 1887:

activities, it is unconstitutional and impermissible. Frankfurter says that Congress has

iii. Superior sources of information

i. Perhaps this is an acceptance of Jackson’s invitation to act  notwithstanding Orlando v. Laird,

b. Hines v. Davidowitz, 1941:

iii. Asakura v. City of Seattle, 1924:

3. No concern about a valid cause of action

b. Belmont: US recognizes the USSR. Presidential order nullifies disputes.

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