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12/31/2015

Harlan Cohen: The Death of Deference and the Domestication of Treaty Law
Michael Ramsey

Harlan Grant Cohen (University of Georgia School of Law) has posted The Death of Deference and the Domestication of Treaty Law (Brigham Young University Law Review, forthcoming) on SSRN.  Here is the abstract:

How much deference do courts give to Executive branch views on treaty interpretation? The Restatement (Third) of the Foreign Relations Law of the United States tells us that courts “will give great weight to an interpretation made by the executive branch,” and earlier empirical studies suggested that deference to Executive in such cases was robust. But is that still the case? The Supreme Court’s rejection of the Executive’s view in a series of high profile cases including Hamdan v. Rumsfeld, BG Group PLC v. Republic of Argentina, and Bond v. United States should raise some doubts.

This short article investigates, taking a closer look at treaty interpretation during the Roberts Court era. First, it examines the question of deference. Supplementing anecdotal evidence with complete data sets of both Supreme Court and Circuit Court treaty interpretation cases from 2005-2014, it compares rates of agreement between the courts and the Executive branch to earlier periods. What this article finds is that, at least at the Supreme Court, there has been a significant shift. Given how rarely the Court follows the Executive’s views on the meaning of treaties, it might be fair to say that the Court does not defer at all. Second, this article looks more closely at how the Supreme Court has framed the treaty questions before it and focused, where possible, on domestic rather than international sources. The trend has had similar results to the first: increasing the Court’s interpretative authority at the expense of the Executive. Together, this article argues, these trends seem strong enough to warrant at least mention in the Restatement (Fourth). But they may even be strong enough to warrant a new approach to treaty interpretation cases that might rationalize these trends and forge from them into usable doctrine. The article sketches out how a broader “normalization” of treaty interpretation might accomplish that goal.
 
This is a somewhat tough issue on originalist grounds.  On one hand, the original Constitution (in my view) gives the President substantial authority over foreign affairs through the grant of "the executive Power."  This might justify a position of judicial deference.  On the other hand, the framers plainly (in my view) understood the inclusion of treaties in Article VI as making treaties the equivalent of statutes (see my article in the same BYU symposium issue).  That seems to suggest no deference (or, no more deference than in statutory interpretation).  Add to the second point the fact that there is little evidence of deference to the executive in early post-ratification treaty interpretation; deference seems rather to be a product of the early-to-mid twentieth century, when the courts inappropriately ceded foreign affairs power to the executive on multiple fronts.  So I think the non-deferential view is the better one.