The most recent 20 comments posted to Making Light by Dylan:

To give you some hope, however, I offer you this .

It is true that, under the last-in-time rule, Congress and the President can legislate in contravention of a treaty obligation. But it is significant that, in a decision on Wednesday, Sanchez-Llamas v.Oregon, the Court relied on Article III of the Constitution and quoted Marbury v. Madison in holding that it is the province and duty of the Supreme Court to interpret treaties. The Court gave that as a reason why the interpretation of another treaty by the International Court of Justice could not be considered binding, but presumably this analysis also makes the Supreme Court the authoritative interpreter of treaties vis-�-vis the President and even Congress. If so, then the Court�s analysis in Sanchez-Llamas rules out a statute that purports to reject the Supreme Court's interpretation of the Geneva Convention and "restore" the President's interpretation, as Professor John Yoo has urged Congress to do. The law-makers could, of course, repeal the Geneva Convention's domestic effect, but, in light of Sanchez-Llamas, they would have to do so by openly rejecting the Geneva Convention. Openly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops. I assume (and hope) that such repudiation is not within the range of plausible options. If Congress is powerless to reject the Supreme Court's interpretation of the treaty, and repudiation of the treaty is not conceivable, then any legislative solution would have to comply with the Supreme Court's interpretation of Common Article 3.

I'm not sure it's right, but to the extent it may be it is for other reasons than those proposed - if a statute is an abrogation or rejection of a treaty provision, rather than an "interpretation," it unquestionably controls. And I doubt it is right. I'm much more persuaded by the second comment to this post:

As much as I admire your work on treaty law, I must say that I was puzzled by this post. Do you really think that a statute declaring that common Article 3 does not apply to the conflict against al Qeada would not be controlling? The logic of Boerne doesn't apply to this situation. Per Marbury, the Supreme Court may have the final say on the interpetation of the Constitution, but that's only because the Supremacy Clause gives primacy to the Constitution over any statute. But that's not so with treaties. Indeed, at least as a matter of domestic law, it's been settled since the Head Money Cases that Congress can override treaties by statute. So, just as Congress can "correct" a misguided interpretation of a statute by enacting a contrary statute, I fail to see why it couldn't do the same with an interpretation of a treaty. Maybe you call it restoring what Congress sees as the proper interpretation of the treaty; maybe you call it abrogating the domestic law obligation that the treaty imposes by virture of the Court's decision. Either way, the result should be the same.

Terry, you're citing in defense of your position what I myself was about to use to back up my own position!

Indeed: For nearly 150 years, courts have applied the last in time rule to resolve conflicts between treaties and federal statutes by giving effect to whichever was enacted later in time.

The courts have and still do say that's the law. Legal academics are pissed. So what?

Pat Green has offered the only intelligent response, which is that, of course, the Constitution itself still overrides whatever laws or treaties are passed. (Although perhaps that was the unsaid basis behind Teresa's "nananana I can't hear you" response at #43.)

Xopher, he's a law professor who specializes in international law. I've been trying to find the actual Supreme Court case that held that a later domestic statute overrides a prior treaty, but it's so old and settled (as a matter of law, not legal academic opinion), that it doesn't pop up easily in the google searches I've tried.

Also, I'm not saying Article VI doesn't "hold." I'm saying it doesn't mean what you think it means. It says only that the US Constitution, treaties, and US domestic law are supreme to state laws and constitutions and requires state judges to enforce federal law when it conflicts with state law. It says nothing about the ranking system of Constitution vs. treaty vs. domestic law. That particular question has been long settled by the Supreme Court in favor of the last in time rule.

For what it's worth, I am a law school graduate. I'm not offering you my opinion, but what I know. Hopefully I'll eventually find the case that actually settled this. Until then, I've offered you a link to a profesor international law who says it's open and shut. Terry has cited his article that notes that the courts have ruled this way for almost 150 years, notwithstanding the bitching of the international law community.

This is not to say the Constitution cannot possible forclose enforcement of the statute at issue. But the Geneva Conventions sure can't. They've been displaced to the extent they conflict with later US law.

The idea that we can't refuse to dishonor a treaty without permission from some or all other participants is simply bizarre, in any case. Google "Kellogg-Briand Pact." The US has signed and ratified a treaty that renounced war as an instrument of national policy...in 1928. We've not withdrawn or specially abrograted it since, as far as I know. Perhaps Germany, another bound member, should have sued us in December 1941 so that our declaration of war could have been quashed by the courts.

I suppose if the right must have its tax protestor cranks it's only fair that the left shoulder their "supremacy of international law" mirror images, but one hopes for better from the "reality based community."

Fragano, he hasn't demonstrated the potential for any unlawful orders. The law has been changed. The change is valid as a matter of law, whatever you think of the morality of it. There is certainly a case to be made that officers should not follow "evil" orders, and perhaps that case should be made here. But abrogating or modifying treaty obligations is not illegal, anymore than the repeal or modification of any domestic law would be.

Well, no, it just means they won't domestically enforce that particular part of the treaty that others think they should. It's not like when someone ignores a WTO ruling on tariffs the offending country is thrown out of the WTO; other nations simply can under WTO rules retaliate with their own punitive tariffs.

Other nations annoyed with this can take their own actions, but then they always could.

But take it from an expert.

I am not aware of other examples where Congress has reversed a Court's interpretation of a treaty, but there is zero doubt in my mind that this move is constitutional. Congress has the authority to nullify the domestic effect of treaties via the "last in time rule" and this authority almost certainly includes the power to adopt a binding interpretation of a treaty for domestic purposes as well. In other words, Congress might be adopting an incorrect interpretation of Common Article 3, but its "incorrect" interpretation is still binding as a matter of domestic U.S. law.

If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No "clarification," whether passed by Congress or signed by the president, relieves you of that duty.

This is flatly untrue. The US Supreme Court has made it clear that where treaty obligations clash with domestic law properly enacted "last in time" controls. A so-called clarification passed by Congress and signed by the president is in fact law.

As a matter of domestic law, the obligations of US service personnel are whatever Congress and the President most recently said they are. Foreign nations, could, of course, choose to prosecute them, but that would be true in any case - they can always just make having been a member of the US armed services itself a crime. Had any of them sworn an oath to uphold the laws of any other countries this might actually be relevant to something.

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