Read with this part: the notes on Missouri v. Holland, Medellín v. Texas and Dames & Moore v. Regan on the Module 6 page.
Three questions, one case each. How far can a treaty reach? When is a treaty law in an American court? And what can the President do by agreement when there is no treaty at all?
1. How far a treaty reaches: Missouri v. Holland (1920)
Congress tried to protect migratory birds by statute, and lower courts held it had no power to do it. So the United States made a treaty with Great Britain, and Congress passed a statute to carry the treaty out. Missouri argued that what Congress cannot do alone, it cannot do by treaty either. Justice Holmes said the premise was wrong:
“To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, § 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States … are declared the supreme law of the land.” 252 U.S. at 432.
So the treaty power is not measured by Article I. A treaty, and a statute carrying it out, can reach a subject Congress could not regulate on its own. But Holmes did not say the treaty power has no limits: “We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way.” Id. at 433. He never said what they are.
2. When a treaty is law in court: Medellín v. Texas (2008)
The International Court of Justice held that the United States had violated a treaty by not telling fifty-one Mexican nationals on death row that they could contact their consulate, and that their cases must be reviewed. President Bush issued a memorandum telling state courts to comply. Texas refused, and the Supreme Court sided with Texas.
The rule is old. A treaty is enforceable in American courts only if it is “self-executing” — if it works by itself — or if Congress passes a statute to carry it out. In the Court’s words, while treaties “may comprise international commitments … they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” 552 U.S. at 505 (quoting Igartúa-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc)). The United States was still bound internationally. What it lacked was a rule a Texas court had to apply.
And the President cannot supply one by himself:
“The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.” Id. at 525–526.
The Court put the President in Jackson’s third category: he acted “in conflict with the implicit understanding of the ratifying Senate.” Id. at 527.
3. Without a treaty: Dames & Moore v. Regan (1981)
To end the Iran hostage crisis, the Executive made an agreement with Iran — not a treaty, so the Senate never voted on it. Among other things, it suspended claims against Iran pending in American courts and sent them to an international claims tribunal. A company with a claim against Iran challenged the suspension.
The Court upheld it, and it did not find a statute that authorized it. It found authority in congressional acquiescence:
“Past practice does not, by itself, create power, but ‘long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent.’” 453 U.S. at 686.
Presidents had settled claims with foreign governments by agreement for a long time, and Congress had known and let it happen. So Congress’s silence counted as consent. The Court also relaxed Jackson’s framework: executive action falls “at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Id. at 669.
Put the two side by side
Medellín made the comparison itself. The Government argued that, apart from the treaties, the memorandum rested on the same kind of independent presidential authority, grounded in congressional acquiescence, that saved the Iran settlement. The Court said the claims-settlement cases “involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals.” 552 U.S. at 531. And: “The Executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum.” Id. at 532.
| Question | Dames & Moore | Medellín |
|---|---|---|
| What the President did | Suspended claims by an agreement with Iran | Ordered state courts to follow an international court’s ruling |
| What Congress had said | Nothing about this settlement, but it had long accepted settlements like it | Nothing; the Senate had ratified treaties that were not self-executing |
| History behind the President | Claims settlement by agreement, a long and known practice | None; the Government itself had called the step “unprecedented” |
| Result | President wins | President loses, in Jackson’s third category |
In both cases Congress had not spoken. The difference is what the Court decided its silence meant, and the history is what decided it.
Check yourself
Congress has passed nothing. The President signs an agreement with a foreign country and then issues a memorandum ordering state courts to reopen final criminal judgments to carry it out. He cites Dames & Moore. Does it help him?
Answer
Almost certainly not. Dames & Moore rests on a long practice, known to Congress and accepted by it, of settling civil claims with foreign governments by agreement. Medellín reads it that narrowly: that authority "cannot stretch so far" as to order state courts to reopen criminal judgments, which the Court called reaching "deep into the heart of the State's police powers." Without a long history of Congress accepting this kind of action, silence does not count as consent. And if the agreement is really an attempt to give a non-self-executing treaty domestic effect, Medellín puts the President in Jackson's third category.