The Judicial Power and Treaty Delegation

Abstract

In this essay, Professor Van Alstine addresses the power of federal courts to develop the law within the scope of a treaty. In response to an earlier essay by Professor John Yoo in this Review, Professor Van Alstine first challenges the assertion that the President has the sole constitutional power to interpret all treaties. He argues that for those treaties that create directly enforceable domestic law, the Supremacy Clause and the judicial power of Article III of the Constitution allocate final authority over interpretation and application to the federal courts. Professor Van Alstine contends that the closest formal and functional analog for such self-executing treaties is Article I legislation. As a result, in parallel with established law with regard to statutory delegations, there is no constitutional infirmity in a deliberate and circumscribed delegation of common law powers by the constitutional treaty-lawmakers (the President with a supermajority of the Senate). Respect for the important role of the executive branch in the conduct of foreign affairs may justify calibrated deference to the reasonable interpretive views of the President. Professor Van Alstine nonetheless explains that this respect does not displace the core judicial responsibility to interpret those treaties that create domestically enforceable rights nor invalidate a properly circumscribed delegation of an authority to develop the law within their scope.