The Charming Betsy Canon, American Legal Doctrine, and the Global Rule of Law.

• Author: Hughes, Justin

TABLE OF CONTENTS I. INTRODUCTION 1149 II. UNDERSTANDING THE CHARMING BETSY DOCTRINE 1151 A. Charming Betsy as a Limit on Extraterritorial Application of Laws 1153 B. Charming Betsy as a Tool for Substantive Interpretation 1155 C. A Comity Doctrine or a Canon of Coordination? 1159 III. THE CHARMING BETSY CANON AS EMBODYING GLOBAL RULE OF LAW 1163 A. Congressional Intent and Separation of Powers 1164 B. Support for Both Domestic and Global Rule of Law 1169 IV. CHARMING BETSY IN A GLOBALIZED, PAX AMERICANA WORLD 1177 A. Rigorous Identification of Customary International Law 1178 B. Identifying the Clear Content of a Treaty Obligation 1180 V. CHARMING BETSY AND THE CHEVRON DOCTRINE 1183 A. Chevron Doctrine 1184 B. Views that Chevron Should Trump 1187 C. A Nuanced Interaction of Chevron and Charming Betsy 1189 VI. CHARMING BETSY AND THE SPECIAL PROBLEM OF WTO DECISIONS 1195 A. Was the United States the Respondent in the Dispute? 1196 B. The Statutory Scheme to Address Adverse WTO Rulings 1200 VII. CONCLUSION 1206 I. INTRODUCTION

The 2016 election brought to the US presidency a person who publicly questioned, criticized, and attacked the post-1945 international order more than any major American political leader since, well, 1945. This relentlessly harsh rhetoric against the international status quo was combined with only a few blatant defections from the United States' international legal commitments--the best-known examples being the US withdrawal from the Paris climate accords and the Iran nuclear deal as well as the massive tariffs imposed in the trade dispute with China (in violation of our World Trade Organization [WTO] tariff bindings). But away from the headlines, any executive branch intent on disrupting the status quo, especially in defense of American sovereignty, should be expected to try to chip away at the United States' compliance with its international legal obligations.

In that context, one of the judiciary's best tools to defend American compliance with international law is the Charming Betsy canon. Arguably the most felicitously named doctrine in an American judge's toolbox, the 1804 Charming Betsy canon says that federal statutes "ought never to be construed to violate the law of nations if any other possible construction remains." (1) For over two centuries, this principle for the interplay of domestic and international law has been "a rule of statutory construction sustained by an unbroken line of authority," (2) a canon "deeply embedded in American jurisprudence," (3) and "the bedrock for a series of later decisions involving international law and judicial construction." (4) In the words of the Supreme Court, Charming Betsy "has for so long been applied by this Court that it is beyond debate." (5)

Yet the Charming Betsy canon exists in a radically changed world--a world in which the doctrine unquestionably has more coverage and arguably is under more stress. It may be an exaggeration to say that "globalization makes everything international," (6) but "well-known developments have radically increased the number of cases that directly implicate foreign relations" (7) and everyone agrees that international legal norms increasingly "address [] substantive matters of our political and economic life traditionally reserved to exclusive domestic jurisdiction." (8) In 2016, Justice Stephen Breyer published a book dedicated to exploring the issues and challenges of a world in which our Supreme Court "must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web." (9)

Simply put, in an era in which there are international legal norms on everything from children's education to chloroflourocarbons, a doctrine that says that federal statutes "ought never to be construed to violate the law of nations" is more and more likely to conflict with other interpretative canons, including the Chevron doctrine's deference to agency determinations. All this was true before the American people elected a president bent on reshaping, challenging, or sometimes ignoring our country's international obligations. Many of these actions by the Trump administration have been either within the ambit of executive power or so contrary to domestic statutory law that international legal obligations have little role to play. But Charming Betsy remains a valuable judicial tool to address some of the mischief when executive branch officials attempt to ignore international obligations in the context of ambiguous congressional direction.

This Article offers a new explanation for Charming Betsy separate from what has been emphasized in the legal scholarship: that the Charming Betsy canon manifests concerns for a variation of the "rule of law," what we might call "global rule of law." Part I of this Article walks through the Charming Betsy jurisprudence, from the original 1803 dispute through the canon's current use to interpret the substantive content of federal laws. Part I also proposes that Charming Betsy is best understood as a "coordinating" canon for different levels or sources of law rather than as part of "comity" analysis, as suggested by some commentators and court opinions. Part II then discusses the traditional congressional intent and separation of powers explanations of the canon and proposes that an equally significant foundation for the canon is the defense and advancement of the rule of law globally. Of course, "rule of law is a notoriously plastic concept," (10) so Part II will explain what is meant here by global rule of law.

Building from this alternative understanding of the Charming Betsy canon, Part III proposes that the canon should have more robust application with treaty-based legal norms than with customary international law; Part IV explores the relationship between Charming Betsy and the Chevron doctrine; and Part V takes up the specific problem of the proper use of Charming Betsy in relation to WTO decisions. It is easy to imagine either of these last two topics becoming a flashpoint in litigation anytime an administration claims what is in the best interests of the country is to ignore existing international obligations.

2. UNDERSTANDING THE CHARMING BETSY DOCTRINE

   The dispute in Murray v. The Schooner Charming Betsy concerned application of the 1800 Non-Intercourse Act, a law promulgated in a period of undeclared hostilities at sea with France. (11) The Act prohibited commercial transactions "between any person or persons resident within the United States or under their protection, and any person or persons resident within the territories of the French Republic, or any of the dependencies thereof." (12) A vessel used to violate the prohibition was subject to forfeiture, seizure, and condemnation if that vessel was "owned, hired, or employed wholly or in part" by a US citizen or resident. (13)

   In July 1801, the schooner Charming Betsy was seized by the crew of the U.S.S. Constellation under the command of Captain Alexander Murray. The seized ship had been built in the United States; it had initially been owned by American citizens, but had just been sold in St. Thomas--then a Danish possession (14)--to one Jared Shattuck. With a new cargo purchased by Shattuck and flying under a Danish flag, the ship had set sail in late June for the French island of Guadeloupe.

   Upon boarding the Charming Betsy, Captain Murray learned that Shattuck had been born in Connecticut (15) and reasonably concluded that the ship was actually American. Murray seized the Charming Betsy, disposed of its perishable cargo, and sent the ship to Philadelphia for adjudication under the Non-Intercourse Act. But in Philadelphia, the Danish consul sought recovery of the ship as the property of a Danish subject. (16) Although Jared Shattuck had been born in the United States, he had moved "while an infant" (17) to St. Thomas. There he had grown up, apprenticed, married, carried on trade as a Danish subject, "became a Danish burgher," (18) and had "taken the oath of allegiance to the crown of Denmark in 1797." (19) Both the district court and the court of appeals concluded that the facts as a whole constituted "proof of expatriation" and that Shattuck was "bona fide a Danish adopted subject." (20)

   Writing for the Court, Chief Justice Marshall avoided the citizenship issue, (21) focusing instead on the Non-Intercourse Act's broader prohibition of commerce "between any person or persons resident within the United States or under their protection" and France. (22) For Justice Marshall, the "whole combination" of facts "certainly place [d Shattuck] out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance, and consequently t[ook] him out of the description of the act." (23) To galvanize this interpretation, Marshall relied on the principle that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." (24) The Court believed that any other interpretation of the Non-Intercourse Act might "violate neutral rights, or affect neutral commerce" contrary to customary international law. (25)

   In the two centuries since, the Supreme Court has never wavered in its adherence to Charming Betsy and the canon has become enshrined in a significant, if patchy, body of case law. Indeed, it might be said that Charming Betsy has had multiple personalities or been used as a moniker for two, perhaps three, different canons. First, Charming Betsy has been considered the source of a canon limiting the extraterritorial application of domestic US laws, a canon which has effectively spun off from it. Nowadays, Charming Betsy is more properly identified as an interpretative canon to align the substantive content of American law with the United States' commitments in international law. The 1803 decision effectively did both these things, using the law of nations to bolster...