Public Private
National 1 2
International 3 4
Monism-Dualism
U.S. Monist as to customary international law
(custom = actual practice + belief such practice is legally binding)
U.S. Dualist as to treaties:
Unratified treaties do not have direct domestic effect.
Ratified treaties have direct domestic effect.
Treaties with direct domestic effect may also create rights among private persons (third parties)
*against the state (vertical direct effect)
*against other private persons (horizontal direct effect)
Direct Effect / Self Executing / Transposition
Many foreign policy issues are unreviewable
1) extra-territorial — no jurisidction
2) non-justiciable “political questions“. (<=Rechtsinstitut – a legal doctrine)
a) Foreign relations are federal not state powers and thus are supreme.
b) Foreign relations are exclusively presidential powers. At most the Senate can refuse to ratify a treaty, the congress can refuse to fund and notice that those are political, not legal actions.
* Rationale: need for a united foreign policy
* Vision of a hostile world: international society as “the state of nature” — war of all against all
– No longer appropriate to the era of globalization
— Rise of directly enforcable international human rights and the U.N. and the WTO as responses to the failure of the international system to prevent global wars.
because the foreign policy powers are committed to the president, and nearly exclusively so, and are also exclusively federal and are applying to extra-territorial situations. Thus, no jurisdiction, or if jurisdiction a “political question.
U.K. Subject in U.S. Merchant Marine on U.S. boat kills Sailor (presumably a U.S. sailor) in Japanese Waters
1) Subject to U.S. jurisdiction due to treaty
2) Has constitutional rights even though not a citizen
3) But his constitutional rights are conditioned on the necessities of international relations
a) Thus: No Right To Trial By Jury
b) The alternative would have been, trial by Japan
*Principles:
1) Fundamental constitutional rights apply outside of U.S. territory
2) Fundamental constitutional rights apply to non-citizens
3) The extra-territorial application of fundamental constitutional rights is conditioned on the practical realities of foreign relations.
Field v. Clark.
Facts: President giving power to suspend application of a tax law on imports.
Issue: “whether the Tariff Act of October 1, 1890, had itself the force of law. One of the grounds upon which the validity of the act was attacked was
that it delegates to the President the power of levying taxes and duties”
Rule: “Congress cannot delegate legislative power to the President”: Separation of powers
Application: “Congress itself determined that the provisions of the act of October 1, 1890, permitting the free introduction of such articles, should be suspended as to any country producing and exporting them, that imposed exactions and duties on the agricultural and other products of the United States, which the President deemed, that is, which he found to be, reciprocally unequal and unreasonable.
Congress itself prescribed, in advance, the duties to be levied, collected, and paid, on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country, while the suspension lasted.
*President had no discretion except as to the duration of countermeasures
Conclusion: Not a delegation of legislative power to the president
Rationales: (not in the case)
1) Foreign policy is the President’s power
2) Flexible rapid ability to react to foreign problems
Vocabulary (not in the case)
Countermeasures (Gegenmaßnahmen)
-Retorsions (legal but unfriendly)
-Reprisals (would be illegal but for justifying wrongful act which they seek to punish) (Reprisaillien)
Downes v. Bidwell
Facts: Tariffs (Zolle) on imports to Puerto Rico were different than Tariffs to the rest of the United States.
Issues:
Is the differential tarriff unconstitutional?
Are citizens of Puerto Rico citizens of the U.S. (unanswered in this case: Parsimony)
Rule: U.S. Constitution requires that tariffs be uniform throughout the United States
Application:
Puerto Rico is not a state.
Therefore Puerto Rico is not part of the United *States*
“Thirteenth Amendment thus recognize a distinction between the United States and ‘any place subject to their jurisdiction,’ but Congress itself, in the Act of March 27, 1804, providing for the proof of public records, applied the provisions of the act not only to ‘every court and office within the United States,’ but to the ‘courts and offices of the respective territories of the United States and countries subject to the jurisdiction of the United States,'”
Conclusion: Differential tariff constitutional
Rationale:
President’s foreign policy power.
Flexible reaction to foreign problems.
Dissent:
Congress created by the constitution and thus can only act constitutionally; constituion is of enumerated limited powers.
TAKE AWAY MESSAGES:
I expect you to read the U.S. constitution on your own. We don’t have time to waste in class parsing the text.
1) Lack of clear constitutional texts on these issues. There is simply little text to interpret.
Art. IV Sec. 3
Section. 3.
New States may be admitted by the Congress into this Union; … [HOW? DOES NOT SAY]
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States [OKAY I GUESS CONGRESS DECIDES, BUT HOW?]
Art. II Sec. 2
The President shall be Commander in Chief of the Army and Navy of the United States …
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [NOTHING ABOUT SELF EXECUTION EXPLICITLY IN THE TEXT]
Art. III Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority [BUT TREATIES SIGNED WITH CONSENT OF SENATE, I.E. RATIFIED ARE CLEARLY TO HVAE LEGAL AUTHORITY BEFORE U.S. COURTS]
*Constitution must be comprehensible to ordinary people
-has to be in plain terms
-has to avoid technical legal terms like “ratified”
*Cannot possibly explain or predict every possible event
*Thus, broad room for interpretation
*This is why I don’t bother in class to parse the text
*Savigny’s Method: Text, Context, History, Teleology
———–
For tomorrow:
——-
For Monday: These are both very important cases and long so be sure to read them.
Expansion of Federal Power via Treaty: Missouri v. Holland
Crosby, Secretary of Administration and Finance of Massachusetts, et al. v. National Foreign Trade Council