At Opinio Juris, a long and sophisticated post by John Dehn on the early understanding of the power of Congress and the President to violate international law.
From an originalist/textualist perspective, I think he’s right about almost everything, including his big-picture conclusions that as a constitutional matter (a) Congress can violate international but (b) the President cannot. I would add that there’s textual support for his view. Article VI lists “Laws of the United States … made in Pursuance” of the Constitution as "supreme Law of the Land,” but it doesn’t list international law. Thus for purposes of the domestic constitutional system, congressional laws outrank international law. That’s consistent with the 18th century view that enacted law trumped unwritten law, and it's consistent with 18th century English practice that acts of parliament trumped international law, which was viewed as part of the common law. (See Part I of this article by Anthony J. Bellia and Bradford Clark.) Of course, in the English system ambiguous acts of parliament were construed not to derogate from common law where another reading was possible – a view that carried over into the U.S. treatment of international law as the Charming Betsy canon.
To be sure, this constitutional relationship between statutes and international law is largely implicit, and could be overcome by specific text to the contrary, but there doesn’t appear to be anything to the contrary elsewhere in the Constitution.
With regard to the President, the key text is the take care clause of Article II, Section 3, which obligates the President to take care that “the Laws” be faithfully executed. The question is: which “Laws”? Arguably it could mean only laws listed in Article VI, which would exclude international law. But Article II’s phrasing is different and broader than Article VI: laws “made in Pursuance of” the Constitution versus just “the Laws.” As Akhil Amar has urged, we should generally try to give effect to the text’s differences in phrasing. The non-parallel language of Article II and Article VI suggests that the President has a broader duty than merely Article VI law, and the most obvious category of non-Article VI law to which the President might be bound is international law.
As Professor Dehn explains, post-ratification practice generally confirms this view of the duties of Congress and the President. Further, although the textual support is not airtight, it’s better than the textual support for the other side, in both cases. No text seems to give Congress a constitutional duty to obey international law, and arguments on the other side (as reflected, for example, in the comments to Dehn’s post) rely almost entirely on generalized appeals to framers’ intent. Similarly, I’m not sure there is any plausible explanation for the difference in language between Article II, Section 3 and Article VI, other than the one I’ve suggested. The opposing side would say, I think, that despite the difference in wording the two Articles refer to the same thing – a somewhat doubtful claim if we are trying to give full effect to the text.
In sum, both text and post-ratification practice support Dehn’s claim that the President has a constitutional duty to follow international law but Congress does not. The evidence isn’t airtight on either count, but it’s stronger than the evidence on the other side. Sometimes, that’s the best one can do.
Posted at 7:00 AM