Sloss on Enforcing Treaties Against the States

Treaties and the Constitution: Enforcing Treaties Against the States is a new article by David L. Sloss, Santa Clara University School of Law.  It is forthcoming in the Harvard International Law Journal.  Here's the abstract:

Since the end of the Cold War, the nation’s leading foreign affairs scholars have debated issues involving the domestic application of treaties. The debate implicates fundamental constitutional questions concerning federalism, separation of powers, and individual rights. Central to the debate is the distinction between self-executing and non-self-executing treaties. Despite deep ideological divisions between nationalists and transnationalists, partisans on both sides agree on two points: first, that the “intent of the treaty makers” is the touchstone for self-execution analysis; and second, that Chief Justice Marshall applied the intent-based doctrine in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the nation’s treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. The intent-based doctrine is analytically incoherent because it conflates these distinct international and domestic law inquiries. Courts applying the intent-based doctrine give controlling effect to a fictitious “intent of the treaty makers” – that fictitious intent is a judicial fabrication. Hence, the intent-based doctrine encourages the arbitrary exercise of judicial power. In contrast, the two-step approach applies rational legal principles to decide treaty cases. This article elucidates the two-step approach to self-execution, which shifts the foundations of the debate between nationalists and transnationalists, and sheds new light on broader constitutional treaty issues.

The historical section begins on p. 8.