Michael D. Ramsey (University of San Diego School of Law) has posted A Textual Approach to Treaty Non-Self-Execution (BYU Law Review, Forthcoming) on SSRN. Here is the abstract:
Conventional wisdom holds that the doctrine of non-self-executing treaties in the United States is conceptually confused and textually unjustified. This article disagrees. It argues that a coherent, text-based approach to non-self-execution is available and consistent with the Constitution’s text and with the Supreme Court’s leading non-self-execution decision, Medellin v. Texas.
To reach a satisfactory textual grounding for non-self-execution, it is necessary to reject two central ideas in leading non-self-execution dicta and commentary. The first is that non-self-execution means that some treaties are not supreme law of the land (or, as it is sometimes said, not part of federal law). As discussed below, that is not a possible reading of the Constitution’s text, which says that “all” treaties are the supreme law of the land (apart from treaty provisions that conflict with superior forms of law). The second is that the unilateral intentions or preferences of U.S. treatymakers can, without more, make a treaty unenforceable by courts. As discussed below, unilateral intentions and preferences cannot change the constitutional direction that judges “shall be bound” by treaties.
Rejecting these two propositions does not, however, reject the idea of non-self-executing treaties. This article understands “non-self-executing” to describe a treaty provision that does not of its own force provide a rule of decision for a U.S. court. This result may arise in various ways, but they share a common characteristic: the treaty provision calls for an action that, in the U.S. constitutional system, is not appropriate for courts to take. In this situation, the court is directly or implicitly instructed by the treaty’s text not to implement the treaty unless another branch provides guidance. Because the treaty is binding on the courts, this direction – contained within the treaty – is also binding on the courts. As a result, non-self-execution arises from the treaty’s text in combination with the U.S. understanding of the court’s judicial power.
This article attempts to outline the textual approach to non-self-execution in a relatively brief and summary form, relying on extensive scholarship on the Constitution’s text and history relating to non-self-execution. As such, it is designed as a “restatement” of textual approaches developed in part by others but presented here in a more simplified manner. Part I of the Article sets forth the basic constitutional rules. Part II explains how non-self-execution arising from a treaty’s text is consistent with the Constitution’s categorical rules on treaties’ status as law. Part III argues that the Court’s opinion in Medellin is consistent with a textual approach to non-self-execution.