AuthorRosenbloom, H. David
  1. INTRODUCTION 376 II. THE CONSTITUTIONAL AND INTERPRETIVE FRAMEWORKS 381 III. INCONSISTENCIES, REPUGNANCIES, CONFLICTS 384 IV. WHITNEY AND COOK 385 A. Whitney 385 B. Cook 389 C. Reconciling Whitney and Cook 390 V. LOWER COURTS 402 A. South African Airways 403 B. Fund for Animals 404 C. The Roeder Cases 409 D. Owner-Operator 414 VI. COOK AS A SPECIAL APPLICATION OF THE SPECIFIC-OVER-GENERAL CANON OF CONSTRUCTION 416 VII. THE MYTH OF TAX EXCEPTIONALISM 421 VIII. CONCLUSION 422 For well over a century, confusion regarding the relationship between U.S. statutes and U.S. treaties has reigned as a result of an apparent inconsistency between two immigration cases decided by the Supreme Court on the same day, December 8, 1884--Chew Heong v. United States (1) and Edye v. Robertson (Head-Money Cases) (2) There is no question that it is possible for a later-in-time treaty to override an earlier statute or for a later-i n-t ime statute to override an earlier treaty. (3) The confusion pertains to the conditions under which a statute is deemed to override a treaty. This question is often framed with reference to an apparent contradiction between the 1888 Supreme Court decision in Whitney v. Robertson (4) and the Court's 1933 decision in Cook v. United States, (5) with later decisions sometimes following one decision while ignoring the other. Whitney stated that in the event of a conflict between statute and treaty the later-in-time provision controls. (6) Cook held that a later-in-time statute does not override an earlier treaty without a clear expression of congressional intent to override. (7) Cook relied on Chew Heong; Whitney relied on the Head-Money Cases.

    The confusion has taken various forms over the years. The House of Representatives and the Department of the Treasury took opposing positions while in the process of finalizing ostensibly relevant but ultimately meaningless tax legislation "dealing" with the question. (8) A Senate Report on that legislation went to heroic lengths in defending a preference for an invariable later-in-time rule while attempting to distinguish Cook. (9) Supreme Court and circuit court decisions standing for one proposition were considered, even by the same circuit court (though with different judges), as standing for the other. (10) The Restatement of the Foreign Relations Law described the issue as an open question and refrained from resolving it. (11) Tax scholars have disagreed on the issue. (12) And the Department of the Treasury is currently negotiating new U.S. tax treaties, and amendments to old treaties, apparently in reliance upon a facile and unnuanced reading of Whitney's later-in-time rule. (13)

    11. The reporters' note to the Restatement stated: Courts presume that Congress does not ordinarily intend to violate U.S. treaty commitments. Their articulation of this presumption has varied, turning in part on evolving and sometimes contested approaches to statutory interpretation in general--a topic beyond the scope of this Restatement. Sometimes, the Supreme Court has suggested the need for clear evidence that Congress intended to override a treaty, in addition to an apparent conflict between the statute and treaty, before a later-in-time statute will be given this effect....At other times, the Court has indicated that if there is a conflict between a clear statute and an earlier treaty, the statute will be applied as a matter of U.S. law, regardless of whether there is evidence that Congress specifically intended to override the treaty....This Section does not seek to resolve this issue. RESTATEMENT (FOURTH) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 309 reps.' note 1 (AM. L. INST. 2018).

    Now would be an opportune time to take a fresh look at the statute-treaty relationship in light of the Constitution's Supremacy Clause. (14) To do so, it is necessary and worthwhile to revisit some hoary Supremacy Clause jurisprudence and to suggest a means of reconciling some old, but still very relevant, Supreme Court decisions. This could have been undertaken at many junctures in the past, but there was never the sort of pressing need that now exists. The relationship between U.S. statutes and treaties has emerged at various times in various substantive areas of the law and has produced a string of important Supreme Court decisions. It is, however, in the area of tax law, and specifically in recent tax legislation, that collisions between statutes and treaties are of immediate practical significance. The Internal Revenue Code has never been fully meshed with the thick network of bilateral and self-executing tax treaties that the United States has negotiated from the 1930s through the present. As the level of sophistication of both statutory and treaty law has increased, and as the business world and, therefore, the tax world have dramatically globalized, collisions have become more frequent and ever more demanding of attention.

    The relationship between the Internal Revenue Code and U.S. treaties has come into particularly sharp focus with enactment of the Tax Cuts and Jobs Act in December 2017 (TCJA). (15) Congress has long exhibited a tendency to enact complex cross-border rules with little attention to their harmonization with treaty commitments, but in the TCJA this tendency was especially pronounced. The statute and its legislative history are virtually silent with respect to treaties, yet the new statutory rules adopted for international taxation raise obvious treaty issues with significant revenue and monetary implications for both the government and affected taxpayers. As a result, Supremacy Clause issues that have lain fairly dormant for years now cry out for attention and resolution. (16) Although we approach our topic as tax scholars, our proffered analysis is as valid outside the tax area as we believe it is within it.

    After introducing the constitutional and interpretive frameworks in Part II, our path into the Supremacy Clause thicket starts in Part III with a description of three statute-treaty relationships--reconcilable inconsistencies, textual repugnancies, and conflicts. An inconsistency between statute and treaty is reconcilable when full effect can be given to both instruments without violating the language of either. (17) A textual repugnancy between two provisions means that one provision cannot be given full effect without violating the language of the other. A repugnancy results in a conflict except when there is an interpretive presumption to the contrary, which transforms the textual repugnancy into a reconcilable inconsistency.

    Employing these concepts, Part IV develops the point that, contrary to a common view, (18) the apparent contradiction between Whitney and Cook is false. Our argument is simple. The Whitney line of cases never found a repugnancy between a later statute and an earlier treaty. Only after reconciling the statute and the treaty did the Supreme Court say--apparently in dicta--that if there had been a conflict between the two instruments, the one that was later in time would control. Cook accepted that proposition--in a holding--but found no conflict between an existing treaty and a repugnant later-in-time statute in the absence of a clear expression of congressional intent to override the treaty. Cook, therefore, harmonized the two instruments "in favor" of the earlier treaty. (19)

    After establishing this proposition both textually and logically, we address three arguments that are often made to undermine Cook. We show that the argument that the Cook doctrine applies only to textually ambiguous statutes is an oxymoron. We then demonstrate the lack of textual and logical bases for the argument that because the statute in Cook represented a continuation of a pre-treaty statutory provision, it is the treaty, not the statute, that was later in time in Cook. Finally, we identify as a necessary corollary of Cook the proposition that a later-in-time statute overrides an earlier treaty--even without a clear expression of an intent to override--if not overriding the treaty would render the statute a nullity. This explains why there is no inconsistency between Cook and statements in Whitney and its progeny that Congress can unintentionally override a treaty. A repugnancy cannot be unintentional when there is an expressed intention to override, but it might well be unintentional if Congress is silent on the question of override when not overriding the treaty would render the later-in-time statute a nullity.

    Part V analyzes several D.C. Circuit cases and demonstrates that, contrary to the common view, they all are consistent with our reading of Whitney and Cook.

    Part VI shows that although the Supreme Court did not say as much, Cook's approach is a special application of the canon of construction favoring specific provisions over more general ones in the absence of a clear contrary intention. (20) Typically (though not invariably), a treaty is more specific than a statute because the treaty applies only with respect to the treaty partner whereas the statute applies generally. Reconceptualizing the Cook canon this way resolves much of the confusion about it.

    Part VII explains why tax is not exceptional, and Part VIII concludes.


    The Supremacy Clause provides that federal statutes and treaties are both the supreme law of the land and have the same constitutional sta-tus. (21) With no guidance in the Constitution on how to resolve inconsistencies between a statute and a treaty, the Supreme Court has developed rules of construction to deal with the question. At least on the surface, these rules appear to be in conflict, leaving the question not fully resolved. (22)

    It is clear that an inconsistency between a self-executing treaty and a statute requires an effort to reconcile the two instruments to the extent possible without violating the language of either. (23) There is also no...

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