Day: April 11, 2017

U.N. Charter Article 2(4) and the Supreme Law of the Land

Chapter I, Article 2 of the United Nations Charter provides that member nations “shall act in accordance with” seven principles. Most relevant today is the fourth principle, which provides “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Marty Lederman contends that because the recent strikes against Syria was not authorized by the U.N. Security Council, the action violates Article 2(4) of the Charter, and is thus illegal under international law. More pressingly, Lederman writes that because Article 2(4) is part of the “supreme law of the land” under Article VI, President Trump’s actions also violate domestic law.  The President’s unilateral attack likely violates the original understanding of the Commander in Chief power—it is a closer call under the “gloss” of modern precedent—but the action does not violate our domestic law.

As a threshold matter, the United Nations Charter is not self-executing. In Medellin v. Texas, the Court explained the long-standing distinction between a self-executing treaty (which automatically has effect as domestic law) and a non-self-executing treaty (which does not):

This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, 2Pet. 253, 315 (1829), overruled on other grounds, United States v. Percheman, 7Pet. 51 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U. S. 190, 194 (1888) . In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igarta-De La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).

Relying on the text of the Charter, in U.S. v. Khatallah, D.D.C. observed that the U.N. Charter, and in particular article 2(4), was not self-executing.

Nothing in the Charter or the Convention demonstrates a determination by the President and the Senate that those agreements should have domestic legal effect. Abu Khatallah’s citations to the Charter do not show otherwise. Discussing the text of the Charter, for example, he appears to rely on the following provision: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state….” U.N. Charter art. 2(4). The Charter, however, explicitly labels this statement a general “[p]rinciple[].” Id. art. 2. It is clearly “not a directive to domestic courts,” Medellín, 552 U.S. at 508, 128 S.Ct. 1346, but rather a commitment — in the form of a compact between independent nations — to conduct their international relations in a manner “[]consistent with the Purposes of the United Nations,” U.N. Charter art. 2(4). Moreover, the language of the “[p]rinciples” that Abu Khatallah cites is so broad that it is difficult to imagine how a court could enforce them absent some additional implementing legislation — which he does not contend exists.

The Office of Legal Counsel took the same position in a 1989 opinion by future-Attorney General William P. Barr, finding that the President could violate the Charte without violating domestic law:

Nevertheless, even if Article 2(4) were construed as prohibiting certain forcible abductions, we believe that the President has the authority to order such actions in contravention of the Charter. Treaties that are self-executing can provide rules of decision for a United States court, [FN25] see Cook v. United States, 288 U.S. 102, 112 (1933), but when a treaty is non-self-executing, it “addresses itself to the political, not the judicial department; and the legislature must execute the [treaty] before it can become a rule for the Court.” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.). Accordingly, the decision whether to act consistently with an unexecuted treaty is a political issue rather than a legal one, [FN26] and unexecuted treaties, like customary international law, are not legally binding on the political branches. The President, acting within the scope of his constitutional or statutory authority, thus retains full authority to determine whether to pursue action abridging the provisions of unexecuted treaties. [FN27] We agree with the 1980 Opinion that Article 2(4) is not self-executing. [FN28] 4B Op. O.L.C. at 548. See also Sei Fujii v. State, 242 P.2d 617, 620 (Cal. 1952) (human rights provisions of U.N. Charter not self-executing); Pauling v. McElroy, 164 F. Supp. 390, 393 (D.D.C. 1958), aff’d, 278 F.2d 252 (D.C. Cir.), cert. denied, 364 U.S. 835 (1960) (finding other sections of Charter not self-executing). Article 2(4) relates to one of the most fundamentally political questions that faces a nation — when to use force in its international relations. For these reasons, we conclude that as a matter of domestic law, the Executive has the power to authorize actions inconsistent with Article 2(4) of the U.N. Charter. [FN29] (emphasis added).

The penultimate sentence is worth re-emphasizing: “Article 2(4) relates to one of the most fundamentally political questions that faces a nation — when to use force in its international relations.” The notion that the United States would outsource this “fundamentally political question” to an international body—in the absence of any implementing legislation—is one courts should avoid. Under current caselaw, this principal is the beginning and end of the question of whether President Trump violated domestic law by ordering the use of force without authorization from the international community.

However, Lederman’s argument is far broader: Even if the provision is viewed by the courts as non-self-executing,  the treaty as ratified remains part of the “supreme law of the land” under Article VI. Thus, the President is duty-bound to take care that this provision is faithfully executed. He writes:

The obligation in Article 2(4) is not only international law, but also a treaty provision to which the U.S. is bound, and thus is the “supreme Law” of the land under Article VI of the U.S. Constitution.  It is, that is to say, a “domestic law” constraint, too . . . . It is simply a non sequitur to reason, as OLC did, that because Article 2(4) is “non-self-executing” in the sense that it does not provide a basis for judicial intervention, the President is therefore free as a matter of domestic law to ignore that provision and deliberately put the U.S. in breach of its treaty obligations.  That deeply counterintuitive position does not reflect the views either of the parties to the Charter (every nation in the world), or of the President and the Senate that approved it for the United States in 1945).

Lederman’s argument, which sounds in purposivism, asks how the ratifiers would have understood the U.N. Charter in 1945. I offer no opinion on the original intent of those who approved the U.N. Charter. Rather, regardless of their purpose, the regime Lederman describes would violate the separation of powers because of its impact on Congress.

Article I, Section 8 gives Congress the power “To declare War.” This is not a power that can be delegated to other branches, but must be exercised by Congress, and Congress alone. However, under such a broader understanding of Article 2(4), it would be illegal for Congress to declare an offensive war on a country in a “manner inconsistent with the Purposes of the United Nations,” namely without a resolution from the U.N. Security Council.

In effect, members of Congress that vote to declare an offensive war—that is, not as an act of self-defense—where the United Nations did not approve of such a war, would be breaking the “supreme law of the land.” Under this theory, they would be violating their oaths for doing precisely what Article I authorizes them to do. Such a construction of the treaty should be avoided at all costs, because it would be unconstitutional.

More pressingly, this theory has the effect of delegating the war power to a foreign body. In Clinton v. City of New York, the Supreme Court invalidated the Line Item Veto Act, which, according to the majority opinion, allowed the President to exercise a legislative power reserved for Congress. This broader theory of 2(4) would allow a foreign body to effectively veto a Declaration of War, if it was done in a “manner inconsistent with the Purposes of the United Nations.” Imagine if Congress declares a war, and then the United Nations refuses to pass a resolution authorizing it. The declaration would now be contrary to our domestic law. To say it aloud is to realize how astonishing this theory is.

A treaty cannot override the Constitution itself. Article 2(4) violates the separation of powers of our Constitution. Congress is free to ratify the Charter—perhaps relying on the fact that it states a “principle” and not a “duty”—but it cannot have any legal effect under our domestic law. Rather, violating the Charter will warrant whatever disapprobation the international community feels is appropriate.  Even if Congress attempted to enact implementing legislation—prohibiting a declaration of war when it was not authorized by the United Nations—such a statute would be unconstitutional under the principle of Clinton v. City of New York. In any event, under the avoidance canon, we should avoid construing the Charter such that a declaration of war, absent a U.N. Security Council resolution, would be illegal.

As a practical matter, the impact of Article 2(4) is largely irrelevant. Once Congress declares war, it alters the Supreme Law of the Land. That is, our domestic law is altered, and under the later-in-time rule, the authorized military action would be lawful, regardless of whatever the treaty says.

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ConLaw Class 24 – Same-Sex Marriage

Class 24 – 4/11/17

Same-Sex Marriage

The lecture notes are here.

On Tuesday, 10/27/15 Jim Obergefell and Eric Alva appeared at an event in Houston to discuss LGBT rights. Alva, whose name is probably less familiar, was the first Marine who was seriously injured in Iraq–he stepped on a land mine within three hours of arriving–and later championed the cause of repealing Don’t Ask, Don’t Tell. Obergefell, whose name you ought to know, was the lead plaintiff in the Supreme Court’s same-sex marriage decision last June. (He was the named party because his cert petition was filed first, and had the lowest docket number). It was a very interesting and engaging event, as the two offered their personal insights about their history and accomplishments.

Before the event, I asked Obergefell if he would sign my pocket constitution. I have a growing collection of Pocket Constitutions signed by various judges, scholars, and others who have some impact on the Constitution. I usually hand over the Constitution, and ask them to sign the inside cover. But, as I approached Obergefell, I opened it up to the 14th Amendment page. Back in 2008–shortly after Heller–I had asked Justice Scalia to sign my Constitution on the page with the 2nd Amendment. (He refused, twice, but I got him to sign it on the third try). Why not, I thought quickly, ask Obergefell to sign the 14th Amendment. It seemed fitting.

I handed him the Constitution, told him I was a law professor, and said I would be teaching his case in a few weeks. He was really friendly, and as he graciously signed it, as we chit-chatted for a few moments. There were a lot of people waiting to see him, so I didn’t keep him much longer. He wrote his name, and below that “Love Won!” It was poetic, both in terms of what, and where he wrote it.

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His message was indeed one of love. During the event, he told the heart-wrenching story of how his husband-to-be, John Arthur, was dying from ALS. (Remember the ice bucket challenge?). The couple flew on a medical plane to Maryland, where they were married on the tarmac, and immediately flew back to Ohio. Soon, suit was filed in federal district court in Ohio to modify Arthur’s death certificate, so that Obergefell would be listed as the spouse. The rest is, well, history.

But his inscription took on an even higher salience because of where he wrote it. In the Federalist Society Pocket Constitution I gave him (he didn’t note the irony), there is a blank space below Section 5 of the 14th Amendment. Obergefell, figuratively and literally, added a new section to the Constitution. Justice Kennedy’s majority opinion recognized love itself–not just “equal protection” or “due process of law”–as an interest protected by the Constitution. States that refused to recognize this “dignity” violated the Fourteenth Amendment. At the heart of this constitutional case was love.

With a few small scribbles, perhaps unwittingly, Obergefell aptly summarized everything his case was about from the moral and legal perspectives.

Here are a few other pictures from the event.

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In 2012, 538 forecasted support of same-sex marriage over the next eight years. This did not turn out to be accurate.

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Santa Clara Law Review Symposium on Sanctuary Jurisdictions

On April 21, 2017, I will be speaking on a panel on sanctuary jurisdictions at the Santa Clara Law Review’s symposium. I will discuss the constitutional issues attending sanctuary cities with Professors Seth Davis (U.C. Irvine), Kevin R. Johnson (U.C. Davis), Elizabeth M. McCormick (Tulsa), and Margaret M. Russell (Santa Clara). I discuss this topic in my forthcoming article in the NYU Journal of Law & Liberty, SCOTUS after Scalia. This should be a fun discussion. If you are in the area, I hope to see you there.

I am especially partial to the Santa Clara Law Review, as they published my very first article, while I was a student!

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Prop2 Class 24 – Landlord-Tenant Relationship II

Class 24 – 4/11/17

Landlord-Tenant Relationship II

  • Security Devices, 502-504 (Skip Anticipatory breach)
  • Duties, Rights, and Remedies, 504-505
  • Village Commons, LLC v. Marion County Prosecutor’s Office, 505-511
  • Notes, 511-514
  • Problems, 514-515
  • Illegal lease, 515
  • Texas Landlord-Tenant Law

The lecture notes are here.

Here is a photograph of the historical Victoria Centre in Indianapolis.

The Victoria Center, one of Indianapolis’ preservation success stories, has been around in its current incarnation for nearly 30 years. What is actually a melding of two historic buildings (the Marrott’s Shoes Building c.1900 and the Lombard Building c.1892); the preservation of the facades and rehabilitation of the interiors were finished in 1984 by the Realty Investments Company out of Silver Springs, Maryland.

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