Treaty Interpretation and the False Sirens of Delegation

Abstract

This piece follows on earlier work, Politics as Laws?: The ABM Treaty, the Separation of Powers, and Treaty Interpretation, which addressed the constitutional issues arising from the allocation of authority between the President and the federal courts concerning the interpretation of treaties. It addresses a response to Politics as Laws by Professor Michael Van Alstine, who argues that courts should have the primary role in interpreting certain types of treaties, specifically those that create domestic rights of action. He argues that treaties can delegate to the federal courts a law-making power to fill in gaps in treaties, and that the courts should interpret certain types of international agreements in harmony with the courts of other nations. Several significant problems pervade this approach to treaty interpretation. It transplants the most expansive theories of the federal judiciary's role in lawmaking into the treaty context without regard to the problems this creates for the separation of powers. Because treaties centrally involve foreign affairs, the text and structure of the Constitution are better read as vesting the authority to interpret treaties in the President. The separation of powers and federalism require a clear distinction between treaties and statutes, and there is no compelling reason, rooted in the text, structure, or history of the Constitution, for erasing that textual barrier. Giving courts the paramount role in interpreting treaties runs counter to the original understanding of the Constitution and modern jurisprudence concerning the scope and nature of the judicial power. Finally, theories about delegating interpretive authority to international or foreign courts are problematic due to the Constitution's vesting of federal power solely in the federal government.