Treaties have evolved significantly since the ratification of the United States Constitution, leading to uncertainty as to the constitutional limits on their domestic execution. This Note adapts existing constitutional doctrine on treaty execution to two distinct complications arising in the contemporary treaty regime. First, voluntary treaties imposing aspirational obligations on signatories raise the issue of the extent of obligations that Congress may domestically enforce by federal statute. Second, originating treaties which create international organizations and authorize them to adopt rule- and adjudication-type post-treaty pronouncements bring up a question of when, if ever, to incorporate those pronouncements into U.S. law, and at what level of legal precedence. Drawing on historical foundations, constitutional case law, and policy considerations in light of the evolving treaty regime, this Note proposes constitutional tests to address both developments. This Note introduces a two-step reasonableness inquiry for statutes executing voluntary treaties, based on the reasonableness of the statute in light of (1) the language and goals of the treaty, as well as (2) U.S. involvement in the treaty. For post-treaty pronouncements, this Note suggests that such pronouncements should be incorporated into U.S. law if they (1) do not violate a provision of the U.S. Constitution and (2) are valid under the originating treaty’s procedural and substantive law. Post-treaty pronouncements that pass this test should be incorporated at the same level of precedence as federal statutes in order to best address concerns regarding the balance between the federal government and states’ constitutionally protected powers. The complex methodology proposed in this Note provides a necessary mechanism for navigating an increasingly complex international legal order.
The Modern Treaty-Executing Power: Constitutional Complexities in Contemporary Global Governance,
Nw. U. L. Rev.