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A lost opportunity: President Trump and the treaty supremacy rule

Several commentators have noted that the election of Donald Trump poses a significant threat to the established international legal order. Similarly, the Trump election constitutes a missed opportunity to repair a broken feature of the constitutional system that governs the US relationship with the international order: the Constitution’s treaty supremacy rule.

A silent revolution in the 1950s created a novel understanding of the treaty supremacy rule. Article VI of the Constitution specifies that treaties are “the supreme Law of the Land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” The traditional supremacy rule was a mandatory rule consisting of two elements. First, all valid, ratified treaties supersede conflicting state laws. Second, when presented with a conflict between a treaty and state law, courts have a constitutional duty to apply the treaty. From the Founding until World War II, courts applied the treaty supremacy rule in scores of cases, without any exception for non-self-executing treaties.

Before 1945, lawyers distinguished between self-executing (SE) and non-self-executing (NSE) treaties. NSE doctrine arose because the Constitution empowers the President and Senate (the “treaty makers”) to make treaties that have the status of supreme federal law, without participation from the House of Representatives. Under traditional doctrine, NSE treaties required implementing legislation, but SE treaties did not. The doctrine restricted the President’s power to implement NSE treaties and preserved the House of Representatives’ ability to shape treaty-implementing legislation. The treaty supremacy rule governed the relationship between treaties and state law. NSE doctrine governed the division of power over treaty implementation between Congress and the President.

When presented with a conflict between a treaty and state law, courts have a constitutional duty to apply the treaty.

The United States ratified the UN Charter in 1945. Articles 55 and 56 obligate the United States to promote “human rights . . . for all without distinction as to race.” In 1945, racial discrimination was pervasive in the United States. Litigants filed dozens of suits challenging discriminatory state laws by invoking the Charter together with the treaty supremacy rule. In the landmark Fujii case (1950), a state court invalidated a California law that discriminated against Japanese nationals. The court held that state law conflicted with the Charter and the Charter superseded California law under the Supremacy Clause.

Fujii sparked a political firestorm. The decision implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. That conclusion was unacceptable to many Americans at the time. Conservatives lobbied for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. Liberal internationalists resisted the proposed Amendment. They argued that a constitutional amendment was unnecessary because the Constitution empowers the treaty makers to opt out of the treaty supremacy rule by stipulating that a particular treaty is NSE. In short, they argued that the treaty supremacy rule is optional.

Before World War II, a firm consensus held that the treaty supremacy rule was a mandatory rule that applied to all treaties. Nevertheless, controversy over the Bricker Amendment gave rise to a new constitutional understanding that the treaty supremacy rule is an optional rule that applies only to self-executing treaties. Thus, modern doctrine holds that the treaty makers may opt out of the treaty supremacy rule by deciding—at the time of treaty negotiation or ratification—that a particular treaty provision is NSE.

The optional supremacy rule impairs the President’s ability to conduct foreign policy. For example, in Medellín v. Texas, President Bush ordered Texas to comply with US treaty obligations. The Supreme Court held that the President’s order was not binding on Texas—hence Texas was free to violate the treaty—because the contested treaty provision was NSE. Therefore, although the President and Senate made a binding commitment on behalf of the nation at the time of treaty ratification, and although President Bush attempted to honor that commitment, Texas subverted US compliance with a treaty obligation that binds the entire nation.

The optional supremacy rule is also contrary to the purpose of the Supremacy Clause. The Framers included treaties in the Supremacy Clause to preclude state government officers from engaging in conduct that triggers an inadvertent breach of the nation’s treaty obligations. Yet, as illustrated by Medellín, the optional supremacy rule empowers state governments to subvert US compliance with its treaty obligations—the precise outcome that the Framers thought they averted by adopting the Supremacy Clause.

If Hillary Clinton was nominating the next Supreme Court Justice, a new liberal Supreme Court majority might have repudiated the optional treaty supremacy rule and revived the traditional, mandatory rule. In contrast, the election of Donald Trump means that we are probably stuck with the optional treaty supremacy rule for the foreseeable future. Those who favor positive US engagement with the global legal order must chalk this up as another cost of the recent Presidential election.

Featured image credit: “The Supreme Court” by Tim Sackton. CC BY-SA 2.0 via Flickr.

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