Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations

• Author: Robert M. Chesney
• Position: Associate Professor of Law, Wake Forest University School of Law
• Pages: 1725-1782

Associate Professor of Law, Wake Forest University School of Law. J.D., Harvard University. I wish to thank Jack Goldsmith, Martin Flaherty, and David Sloss for their comments, as well as the participants in a faculty workshop at the University of North Carolina and in the annual workshop of the American Society of International Law's Interest Group on International Law in Domestic Courts, held at Vanderbilt in 2005. Dustin Greene provided outstanding research assistance.

Page 1725

I Introduction

A treaty,¹ like any other written instrument, may contain ambiguities that must be resolved in the course of its application to real-world events. Of necessity, it is the executive branch, operating through its various departments and officials, that performs this interpretive task on a day-to-day basis. But not all executive treaty interpretations are equal. While many, if not most, are mundane, some are controversial-perhaps deeply so. In such cases, executive power to interpret could-if entirely unchecked-shade into the power to amend, without resort to the restraining formalities of the treatymaking or lawmaking processes.²

The interpretive authority of the executive branch with respect to the execution of any form of law (treaty, statute, or otherwise) generally is thought to be checked by, among other things, the judiciary's claim of final authority "to say what the law is."³ And yet, despite this maxim, there are contexts in which executive interpretations of law are not so easily trumped. The most famous of these involves the Chevron doctrine, pursuant to which a court must defer entirely to the appropriate administrative agency's reasonable interpretation of ambiguous statutory language in at least some circumstances.⁴ The fact that something similar may have been taking place for over a century with respect to executive treaty interpretations is not nearly so widely recognized.

It does not appear that courts deferred to executive-branch treaty interpretations in the early years of the United States.⁵ Signs of changePage 1726 appeared in the late nineteenth century, however, and by the twentieth century the Supreme Court was repeatedly articulating a deference doctrine.⁶ By the 1990s, some scholars had concluded that, for better or worse, executive treaty interpretations, as a practical matter, were dispositive in most cases.⁷ Moreover, during this same period, the potential impact of the doctrine in terms of the separation of powers has grown in both quantitative and qualitative terms. Quantitatively, the ongoing proliferation of treaties during the twentieth century has meant a coinciding increase in opportunities for the deference doctrine to come into play. Qualitatively, the emergence of international agreements focused on the relationship of states to individuals has produced treaty disputes in a range of politically sensitive contexts, including a number of post-September-11 antiterrorism policies.

A decision by the D.C. Circuit Court in the summer of 2005 bore out the potential significance of the deference doctrine in light of these trends. In Hamdan v. Rumsfeld, the court faced an array of issues arising out of a habeas corpus petition brought on behalf of Salim Hamdan, an alleged Al Qaeda member held at Guantánamo Bay who had been designated for trial before a military commission.⁸ Among other things, the court had to determine whether Hamdan had been detained in connection with an armed conflict falling within the scope of Common Article 3 of the Geneva Conventions-a question that the President previously had answered in the negative with respect to Al Qaeda detainees by adopting a narrow construction of the treaty language.⁹ Ultimately, the D.C. Circuit concluded by a two-to-one margin (with future Chief Justice John Roberts in the majority) that "the President's reasonable view of the provision must . . . prevail."¹⁰ To be sure, the panel made clear that it agreed with the President's interpretation on the merits, but the court's endorsement of a robust deference obligation in this sensitive context nevertheless suggested the potential impact of the doctrine.

Page 1727

The story of Hamdan did not end there, however. The Supreme Court reversed the D.C. Circuit in June 2006,¹¹ rejecting the President's interpretation of Common Article 3 without even a mention of the deference doctrine by the majority. This omission sparked a vigorous objection from Justice Thomas in dissent and was all the more notable for having occurred just one day after the Court in Sanchez-Llamas v. Oregon had repeated the maxim that the judiciary must give "great weight" to at least some executive treaty interpretations.¹² In the aftermath, the deference doctrine appears more unsettled and indeterminate than ever before.

As noted above, my aim in this Article is to address this confusion by providing a thorough descriptive account of the origins and evolution of the doctrine and also by suggesting reforms designed to link the practice of deference to a defensible theoretical foundation. Part II begins by framing the issues with a detailed discussion of the deference dispute in Hamdan. Against that backdrop, Part III addresses a pair of descriptive questions. First, what is the precise nature of the deference doctrine? To answer that question, I provide a historical survey of the origins and evolution of the Supreme Court's treaty-deference cases. I do not do so in a vacuum, however, but instead contextualize this discussion with reference to two factors. The first factor involves the general methodology of treaty interpretation that is characteristic in U.S. courts, with an emphasis on the use of post-ratification practice under a treaty as evidence of the parties' intentions in entering into the treaty. Though not itself a form of deference, strictly speaking, the use of post-ratification practice as evidence of intent has played a significant role in the evolution of the deference doctrine. The second factor involves the contemporaneous emergence in the early twentieth century of a number of other, more widely recognized foreign-relations-law doctrines embodying a general trend toward executive discretion in foreign affairs.¹³ Edward White has described the trend as the transformation of the constitutional regime of foreign relations,¹⁴ and I argue below that the emergence of the treaty-deference doctrine is an important aspect of that transformation.¹⁵

The second descriptive question that Part III addresses asks whether the deference doctrine has any practical impact. Conventional wisdom holdsPage 1728 that it does, on the ground that the government's view largely, if not always, prevails in treaty-interpretation cases as a result of deference.¹⁶ On the other hand, at least one scholar has argued that the doctrine has not actually played a significant role in any of the Supreme Court cases in which it has appeared, even if it so happens that the government typically prevails in them.¹⁷ The former proposition (that the doctrine has a practical impact) suggests that the doctrine matters a great deal in that it largely negates the judicial checking function in treaty-interpretation cases, while the latter suggests that it matters only in rhetorical terms. To test these claims, I survey the results in the set of published opinions explicitly addressing the doctrine at all levels of the federal judiciary during the Rehnquist Era (1984-2005). One must always be cautious in drawing conclusions from surveys limited to the published record, of course, in light of the biases introduced by such an approach to data collection.¹⁸ Even so, the survey's results do provide evidence against the claim that the executive branch's views are dispositive; whether the results also undermine the claim that the doctrine is mere window dressing is much less certain.

In Part IV, I turn to normative issues. Perhaps in reaction to the Supreme Court's failure to explain in any detail the grounds for its recognition of a deference obligation, scholars in recent years have developed a variety of theoretical models in order to justify, enhance, or undermine the practice. At bottom, this variety reflects underlying disagreement regarding the primacy of conflicting functionalist and separation-of-powers considerations, as well as the significance and content of originalist arguments. These seemingly inconsistent positions can be reconciled to some extent, however, by disaggregating the deference doctrine.

Some applications of the doctrine, for example, could be understood as examples of the use of clear and consistent post-ratification practice as evidence of the treaty parties' original intentions, rather than as simple obedience to current executive preferences. The practical result in...