Concept

Presidential Implementation of Treaties

Treaty and foreign affairs powers

Presidential Implementation of Treaties

The holding that the Vienna Convention treaties are non-self-executing closed the first route to enforcing the Avena judgment in Texas courts. It left a second route open, and the executive branch pressed it just as hard: even if the treaties give the judgment no domestic force of their own, could the President supply that force alone? On February 28, 2005, President Bush determined that the United States would discharge its obligation under Avena by having state courts give effect to the decision.¹ The Court held that the President has no independent constitutional authority to enforce a non-self-executing treaty by directing states or courts to comply. It reached that result by applying Justice Jackson's framework, and the earlier discussion of that framework already placed the memorandum in the third category. What remains is the route the Court took to get there. It tested the memorandum against each possible source of presidential power in turn: the treaties themselves, an independent power to settle claims disputes, and the Take Care Clause. Each failed for its own reason, and the sections below follow that order.

The Treaty Argument

The Government's first argument was that the Optional Protocol and the U.N. Charter implicitly authorized the President to implement Avena, and that Congress had acquiesced in that authority. The Court rejected the argument as inconsistent with the constitutional allocation of lawmaking power, since the responsibility for turning an international obligation under a non-self-executing treaty into domestic law falls to Congress, not to the Executive.² The President is left with political and diplomatic means of pressing for compliance, but "unilaterally converting a non-self-executing treaty into a self-executing one is not among them."³

The reason lies in how the Constitution divides the treaty power. The President makes a treaty and the Senate consents by a two-thirds vote, so the executive has a chance while the treaty is being made to secure domestic enforceability, by negotiating language that plainly provides for it and winning the Senate's supermajority approval of that choice.⁴ A treaty ratified without such language puts the question under a different principle: the power to make the necessary laws belongs to Congress, and the power to execute them belongs to the President. The terms of a non-self-executing treaty can therefore become domestic law only the way any other law does, through passage by both Houses of Congress and either the President's signature or an override of a veto.⁵ A President who could give the treaty that effect alone would achieve what the Senate, by consenting to a treaty that does not operate of its own force, chose not to authorize, and would do so without the House of Representatives, which has no part in making treaties. Only Congress, by legislation, can execute a non-self-executing treaty into domestic law.⁶

Run through Jackson's categories, the reasoning has two stages. The first category requires an express or implied authorization from Congress, and the Court found none. A non-self-executing treaty is, by definition, one ratified with the understanding that it is not to have domestic effect of its own force, and that understanding rules out the claim that Congress implicitly authorized the President to produce the same result alone.⁷ The same understanding carries the analysis into the third category. A President who asserts power to enforce such a treaty by unilaterally creating domestic law acts in conflict with the implicit understanding of the ratifying Senate, so the treaties forbid the step as well as failing to authorize it.⁸ In that category the President can rely only on independent constitutional powers minus Congress's powers over the matter, which is why the Court next examined the independent sources the Government offered.⁹

The Government also argued that Congress had acquiesced in earlier executive action of this kind. Congressional silence can invite executive action in the twilight zone, but the Court found no history from which to read silence as consent. The earlier controversies did not involve any claim of unilateral authority to transform international obligations into domestic law that displaces state law, and the statutes on representing the United States before international bodies address international responsibilities, not domestic lawmaking.¹⁰ The executive branch remains free to pursue other means of compliance consistent with the Constitution, and Congress remains free to implement a non-self-executing treaty by statute, as it has done for many of them.¹¹

The Claims-Settlement Argument

With the treaties closed off as a source of power, the Government relied on an independent one: the President's foreign affairs authority to resolve claims disputes with other nations. The argument had real precedent behind it. In Dames & Moore v. Regan the Court upheld the President's authority, with at least the implicit approval of Congress, to settle claims of American citizens against foreign governments by executive agreement, including by suspending pending claims in American courts. The Court in Medellin accepted the principle behind those cases, that a history of congressional acquiescence, if pervasive enough, can be treated as a gloss on the executive power that Article II, Section 1 vests in the President.¹² It then found that the settlement cases did not stretch to a directive aimed at state courts, for three reasons:

The subject differs, because the settlement cases involve a narrow set of circumstances, executive agreements that settle civil claims between American citizens and foreign governments or foreign nationals, while the memorandum settled no claim against a foreign government and instead addressed state courts.¹³
The history differs, because the settlement cases rest on "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned," which raises a presumption that Congress consented, while the Government itself described the memorandum as "unprecedented action" and could point to no earlier directive to state courts.¹⁴
The reach differs, because the memorandum would enter the heart of the states' police powers by compelling state courts to reopen final criminal judgments and set aside neutrally applicable state laws.¹⁵

The history requirement is the part to understand, because it explains why acquiescence can stand in for statutory text at all. Congress's silence can be read as consent only when Congress has had repeated, known occasions to object and has let them pass. Dames & Moore rested on exactly that kind of record, a history of congressional acquiescence in claims settlement by executive agreement. A directive to state courts has no such record behind it, so nothing exists from which to infer Congress's consent. The Court added that past practice does not by itself create power, and that the memorandum lacked the particularly longstanding practice recognized in Dames & Moore and in Garamendi.¹⁶ The two decisions fit together on that footing: the settlement authority is real but narrow, confined to settling civil claims by agreement and resting on a long record of acceptance.

The Take Care Argument

Medellín's last argument was that the memorandum validly exercised the President's power to take care that the laws be faithfully executed. The United States did not rely on that clause, which the Court called a wise concession, because the authority "allows the President to execute the laws, not make them."¹⁷ Avena is not domestic law of its own force and Congress has passed no implementing legislation, so there is nothing for the President to execute.¹⁸ The structural point matches the one made under the treaty argument. If the clause could turn an international obligation into binding domestic law, any President could convert any treaty into enforceable law by declaring that the obligation must be faithfully executed, and the division between making and executing laws would give way. The memorandum would transform something that is not law, a non-self-executing treaty with no domestic enforcement mechanism, into a rule enforceable against the states as supreme law, which is lawmaking even more clearly than the steel seizure in Youngstown.¹⁹ The Court therefore affirmed the judgment of the Texas Court of Criminal Appeals.²⁰

Applying the Holding

Taken together, the three rejections show where the line sits. The President cannot convert a non-self-executing treaty into binding domestic law by directive, and what changes the result is action by Congress, not stronger insistence from the executive.

Hypothetical Illustration

The United States ratifies a treaty on mutual enforcement of arbitral awards, and the Senate's consent rests on the understanding that the treaty will not operate as domestic law without implementing legislation. The President then issues a memorandum directing state courts to enforce a foreign tribunal's award against a state agency. The memorandum is an attempt at lawmaking that contradicts the ratifying Senate's understanding, so it falls in the third category and binds no state court. Change one fact: Congress enacts a statute implementing the treaty and authorizing the President to carry it out through state-court proceedings. The President now acts with congressional authorization, and the analysis moves from the third category to the first, where presidential authority is at its maximum. Change a different fact instead: the treaty text plainly provides for domestic enforcement and the Senate consents by two-thirds. The treaty is then self-executing, no memorandum is needed to give it force, and the question becomes one of treaty interpretation rather than presidential power.

Exam Analysis Steps

Because the Court tested the memorandum against each possible source of power in a fixed order, a problem about presidential implementation of a treaty is best run in that order. The steps are these:

Decide whether the treaty provision is self-executing by reading its text and related materials, because a self-executing treaty operates as domestic law without any presidential directive and the question of presidential power never arises.
If the treaty is non-self-executing, look for implementing legislation, and if Congress has enacted it and authorized the President to act, place the presidential action in the first category.
If no legislation exists, ask whether the treaty or any other statute authorizes the President to give the treaty domestic force, and treat the treaty's non-self-executing character as an answer of no that places the action in the third category.
Test any independent source the President invokes, and for claims settlement ask whether the action settles civil claims by executive agreement and rests on a long, known, and unquestioned practice of congressional acquiescence.
Test the Take Care Clause by asking whether existing domestic law is there for the President to execute, since the clause creates none.
Conclude that a directive surviving none of these tests has no binding effect on states or courts, which leaves diplomacy and congressional legislation as the remaining routes.

The usual error in this problem is to argue from the President's prominent role in foreign affairs. The Court recognized that role and still required that executive authority stem from an act of Congress or from the Constitution.²¹ Step 3 carries the weight of the analysis, because the Senate's understanding at ratification decides both whether the treaty authorizes presidential action and whether it forbids it.