Making treaty implementation more like statutory implementation.

• Author: Galbraith, Jean

Both statutes and treaties are the "supreme law of the land," and yet quite different practices have developed with respect to their implementation. For statutes, all three branches have embraced the development of administrative law, which allows the executive branch to translate broad statutory directives into enforceable obligations. But for treaties, there is a far more cumbersome process. Unless a treaty provision contains language that courts interpret to be directly enforceable, they will deem it to require implementing legislation front Congress. This Article explores and challenges the perplexing disparity between the administration of statutes and treaties. It shows that the conventional assumption that Congress must implement treaties that are not directly enforceable by courts stems from an unduly narrow historical perspective. Instead, largely forgotten nineteenth-century practice and cases reveal that the executive branch can implement treaties so as to make them enforceable in the courts. Drawing on this past practice, this Article argues that it is time to reconfigure the administration of treaties. In at least some circumstances, the executive branch should be able to translate treaty provisions into court-enforceable obligations in a manner comparable to the statutory context, including through rulemaking by administrative agencies. This approach is particularly desirable for multilateral regulatory treaties, which have come to play an increasingly important role in global governance.

TABLE OF CONTENTS INTRODUCTION I. THE LAW OF THE LAND TODAY: A TALE OF TWO DOCTRINES A. Treaties B. Statutes C. Implications 1. Differences in Political Process 2. Differences in Legal Oversight 3. Consequences for Treaty Making II. HOW CONGRESS CAME TO IMPLEMENT NON-SELF-EXECUTING TREATIES A. The Conventional Story B. A Broader View of Treaty Administration 1. Regulatory Implementation by the Executive Branch 2. Non-Self-Execution for All Kinds of Laws of the Land C. The Past Half-Obscured III. IMPLEMENTING TREATIES THROUGH ADMINISTRATIVE ACTION A. Constitutional Permissibility B. Practical Desirability C. Structural Design D. Administrative Complexities CONCLUSION INTRODUCTION

There is a curious contrast between how statutes and treaties function within our constitutional system. Both are the "supreme Law of the Land," (1) and yet quite different practices have developed with respect to their administration and enforcement. Since at least the New Deal, all three branches have embraced a pragmatic approach to the administration of statutes, one that puts a premium on effectiveness. This approach accepts that Congress can give broad statutory directives that administrative agencies or other executive branch actors translate into enforceable obligations through rulemaking or other agency action. This in turn provides Congress with "the necessary resources of flexibility and practicality ... to perform its function." (2)

For treaties, the process of translating generalized directives into enforceable obligations is far more cumbersome. The Supreme Court has indicated that unless a treaty provision is itself directly enforceable in the courts, it will be deemed "non-self-executing" such that only Congress can act to make it enforceable. (3) In other words, unlike in the statutory context, the executive branch cannot be the administrative intermediary between a treaty provision and the courts. Instead, it takes a statute to administer the treaty, and thus one supreme law of the land is needed to implement another.

This added hurdle poses particular challenges for treaties, especially multilateral ones, that seek to regulate the conduct of private individuals. In the years since the end of the Cold War, these regulatory treaties have become an increasing part of global governance, appearing in contexts as diverse as business, security, and environmental protection. (4) Like the drafters of congressional statutes, the negotiators of these treaties can prefer broad directives because of their usefulness in accommodating changing conditions and because of the advantages that ambiguity can offer to achieving consensus. In addition, for reasons based in their own domestic law, negotiators from other countries often require that commitments in treaties use language that obligates domestic action rather than directly constitutes this action. (5) Regulatory treaties thus are often not directly enforceable by courts, and the need for congressional action makes it difficult and sometimes impossible for their provisions to be implemented. Getting an administrative agency to rulemake can be challenging, but getting Congress to pass a statute is likely to be far harder. There is no certainty that Congress will act in a timely manner or even that it will act at all. To give a particularly egregious example, in 1992, the Senate advised and consented to an important treaty on the transportation of hazardous waste and yet today--twenty-four years later--Congress has still not passed legislation to implement the treaty's commitments. (6)

The challenge of administering treaty commitments can affect the entire treaty-making process. U.S. negotiators are fully aware of the difficulties of getting Congress to pass implementing legislation. Sometimes they respond by seeking to make treaty commitments that are explicitly "self-executing," (7) but this is often not feasible, particularly for multilateral treaties. (8) A further strategy is to seek to limit the international commitments undertaken by the United States that will require domestic legal enforcement to actions that are already authorized by existing U.S. statutes. (9) This strategy curtails the possible scope of international cooperation. It also adds to the reasons for the president to move away from making treaties altogether. A signature move of the Obama Administration had been to join the United States to major multilateral international agreements without seeking approval from the Senate on the grounds that their terms can already be implemented under existing U.S. law. (10) The more hurdles the treaty-making process creates for the executive branch, the stronger its incentives are to bypass this process altogether.

The assumption that Congress needs to be the intermediary between otherwise unenforceable treaty provisions and the courts is prevalent, and yet its foundations are surprisingly unexamined. Most scholars addressing the issue of treaty non-self-execution devote their attention mainly to what makes a treaty provision non-self-executing rather than to how provisions that are not directly enforceable are to be implemented. (11) Those scholars who have considered executive branch implementation have done so largely by relying on the Take Care Clause or by emphasizing that the president's foreign-affairs powers give the president authority to execute treaties. (12) A foreign-affairs perspective also pervaded both the briefing and the Supreme Court's opinion in Medellin v. Texas, (13) the case that appears to cement Congress's exclusive authority to translate treaty directives that are not directly enforceable into law that is enforceable by the courts. (14)

This Article explores and challenges the assumption that Congress is the only appropriate intermediary between the courts and treaty provisions that are not directly enforceable. Instead, it argues that actors in the executive branch can serve this intermediary role, at least when certain conditions are met. The argument rests not on the president's foreign-affairs powers, but rather on the claim that the legal and structural arrangements that have developed with regard to the administration of statutes can constitutionally and appropriately be applied to treaty implementation. This approach offers new insight as to both how Congress came to be assumed to be the exclusive implementer of non-self-executing treaty provisions and whether this assumption is warranted today.

The broad lens used in this Article reveals that the implementation of treaties and statutes diverged over time less because of preordained constitutional differences than because of different developmental paths. The conventional account of Congress's exclusive role in implementing otherwise nonenforceable treaties depends heavily on dicta in Foster v. Neilson, an 1829 Supreme Court decision that described treaty enforcement as a matter for either Congress or the courts. (15) This account overlooks other persuasive evidence from nineteenth-century practice and case law that shows that, far from being exceptional, the administration of treaties developed in ways that closely paralleled the administration of statutes, including through reliance on executive branch intermediation.

More specifically, a close look at past practice reveals that the executive branch has in fact already exercised power delegated by treaties to create court-enforceable law out of generalized treaty directives. This practice is most evident with regard to nineteenth-century Indian treaties, which often explicitly delegated administrative authority to the president, including rulemaking authority. These treaties were blessed by courts, including at times the Supreme Court, in ways that undercut the conventional assumption that treaty enforceability is a matter for either Congress or the courts. Instead, during the nineteenth and into the early twentieth century, the implementation of treaties came to rely on executive branch administration in ways that resembled the rise of administrative law in the statutory context.

This parallel between the treaty context and the statutory context is suggested as well by broader uses of the terms "self-executing" and "not self-executing." The Supreme Court began to use this terminology in the late nineteenth century with respect not only to treaties, but also to the two other types of supreme law of the land--the...