Chevron deference and treaty interpretation.

• Author: Criddle, Evan
• Position: Response to Curtis A. Bradley, Virginia Law Review, vol. 86, p. 649, 2000

Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649 (2000).

One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" (1) to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign affairs law has important implications for treaties, which play dual roles in the American constitutional system: Internationally, treaties represent sensitive political agreements with foreign nations having important implications for U.S. foreign policy. Domestically, treaties enacted pursuant to Article II become "Supreme law" on par with federal legislation. (2) Thus, when interpreting treaties, domestic courts have sought to reconcile these two functions by defending the judicial prerogative to "say what the law is" (3) while simultaneously affording executive treaty interpretations "'great weight.'" (4)

A recent article by Professor Curtis Bradley (5) defends judicial deference to executive treaty interpretation by analogizing this practice to the Supreme Court's two-part test for deference to administrative agency interpretations established in Chevron U.S.A., Inc. v. Natural Resources Defense Council. (6) Accepting that some judicial deference in this realm may be both appropriate and desirable, this Comment nevertheless challenges Chevron's adaptability to judicial treaty interpretation in light of prevailing constitutional and customary international law. In place of Bradley's Chevron paradigm, this Comment offers an alternative analogy from administrative law--Skidmore deference--as a superior paradigm for conceptualizing judicial deference to executive treaty interpretation.

I

The Chevron doctrine has been described as a judicial effort to accommodate the two major values of the modern administrative state: agency expertise and the rule of law. Chevron declares that when Congress delegates administrative authority over a particular statute to an executive agency, courts will defer to the agency's reasonable statutory interpretations if not contrary to Congress's unambiguous intent. (7) In Chevron Deference and Foreign Affairs, Professor Bradley asserts that this paradigm also provides a valuable template for accommodating the conflicting values in U.S. treaty jurisprudence. As with agency statutory interpretations, courts only defer to executive treaty interpretations if the treaty's plain language does not resolve the question at issue, if the executive's interpretation is not unreasonable, and if the executive agency is the same charged with administering the treaty. (8) Congress may override executive treaty interpretations by statute just as it may override agency statutory interpretations. (9) Finally, the Chevron framework helps to explain why courts have deferred to executive interpretations even when the executive has changed its position. (10)

Normatively, Bradley's Chevron paradigm provides an attractive middle ground between the polar extremes of judicial tyranny and judicial abdication in treaty construction. Deference to executive interpretations preserves judicial oversight while simultaneously harnessing the executive's special expertise in international affairs and shifting delicate policy decisions to politically accountable agencies. (11) Chevron's flexible design also improves upon previous judicially constructed paradigms, in that it offers a more nuanced account of the interaction between the executive and judiciary in U.S. treaty practice, and gives form to the nebulous and often contradictory standards articulated in past Supreme Court decisions. (12) Perhaps the most appealing feature of Bradley's Chevron analogy, however, is its simplicity; rather than erect a complex new theory to account for deference to executive treaty interpretation, Bradley simply invites courts to translate a familiar test to a less familiar field of law.

In July 2002, Bradley's article passed its first significant test in a judicial forum when the Eastern District of Virginia expressly relied upon Bradley's article to decide a critical pretrial matter in the prosecution of John Walker Lindh, an American citizen accused of fighting alongside the Taliban in Afghanistan. (13) Prior to trial, Lindh's attorneys filed several motions to quash the indictment, asserting inter alia that Lindh's status as a Taliban soldier provided a basis for "lawful combatant" immunity under the Geneva Convention Relative to the Treatment of Prisoners of War (GPW). (14) Considering this motion on its merits, the district court invoked Chevron and cited Bradley's article for the proposition that "American treaty-makers may be seen as having delegated [treaty interpretation] to the President in light of his constitutional responsibility for the conduct of foreign affairs and overseas military operations." (15) The court accepted the U.S. government's interpretation of the GPW and denied Lindh's request for lawful combatant immunity. (16)

II

Chevron deference provides a useful framework for disciplining U.S. courts' relatively vague standards for deference to executive treaty interpretations. But courts should not apply such deference...