International Law and Federal–State Relations

• Author: William S. Dodge
• Pages: 1389-1390

Page 1389

One of the principal purposes of the Constitution was to create a national government with power over FOREIGN AFFAIRS. As JAMES MADISON wrote in FEDERALIST No. 42, "If we are to be one nation in any respect, it clearly ought to be in respect to other nations." Thus, the Constitution gives the President the power to make TREATIES with the approval of two-thirds of the U.S. SENATE and explicitly denies that power to the states. It gives Congress the power to regulate FOREIGN COMMERCE and to define and punish offenses against the law of nations. Moreover, the SUPREMACY CLAUSE makes not just acts of Congress but treaties "the Supreme Law of the Land."

The power of the federal government to PREEMPT state law by entering a treaty is broader than its power under the COMMERCE CLAUSE. In MISSOURI V. HOLLAND (1920), the Supreme Court upheld an act of Congress implementing a treaty with Canada on the hunting of migratory birds despite the fact that similar LEGISLATION had twice been struck down for exceeding Congress's commerce power. Concerned that the federal government might use treaties on INTERNATIONAL HUMAN RIGHTS to dismantle SEGREGATION, proponents of STATES ' RIGHTS led by Senator John Bricker of Ohio tried unsuccessfully in the 1950s to reverse Holland with a constitutional amendment providing

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that "[a] treaty shall become effective in the United States only through legislation which would be valid in the absence of a treaty."

EXECUTIVE AGREEMENTS are not mentioned in the supremacy clause, but the Court ruled that the President may preempt state law by entering such agreements in UNITED STATES V. BELMONT (1937) and UNITED STATES V. PINK (1942), both of which upheld the Litvinov agreement recognizing the Soviet Union and disposing of claims between the two countries.

Until 1938, customary international law was applied by state and federal courts alike as part of the general COMMON LAW without regard to its state or federal character. The Court declared in The Paquete Habana (1900): "International law is part of our law, and must be ascertained and administered by the courts of justice ? as often as questions of right depending upon it are duly presented for their determination." The Court's pronouncement in ERIE RAILROAD V. TOMPKINS (1938) that "[t]here is no federal general common law" cast some doubt on the status of customary international law. Professor Philip Jessup soon argued, however, that Eri...