Making IL in the U.S.

Question 1

IL offers two basic theories about the role and status of its incorporation of IL on the domestic plane. What are they?

Answer 1

Monism & Dualism

Question 2

What is monism?

Answer 2

• Single, universal legal order
• IL is automatically part of a state’s law, as is contract law or tax law
• IL is superior to domestic law in the case of a conflict.

Question 3

What is dualism?

Answer 3

• Conceives of IL as a distinct system of law, separate and apart from domestic law
• Status of IL is determined by a state’s domestic law: Whether, how and when it is to be incorporated

Question 4

Is the US monist or dualist? What about France, South Africa and the Netherlands?

Answer 4

The U.S. would fall more under this theory.

• See Paquette Habana “IL is part of our Law”
• Supremacy Clause

Question 5

How did the European Community come to be? What were the steps of European integration? And what, ultimately, does the Eu provide an example of?

Answer 5

• community created by 2 1957 Roman treaties that merged the countries’ economies and established peaceful use of nuclear weapons
• post WWII to rebuild europe and prevent future wars
• treaty based framework for economic and political cooperation

Question 6

What did the Van Gen den Loos v Netherlands Case at the European Court of Justice stand for?

Answer 6

can citizens of a state use provision in Rome Treaty to bring claims
court said yes - has direct effect in domestic law that individuals can use

Question 7

What did the ECJ case of Costa v. Ente Nazionale per l’Energia Ellettrica stand for?

Answer 7

P challenged italian law nationalizing electric industry as against italian constitution and rome treaty. Italian court rules that domestic law nationalizing was more recently passed so it controls.

Court says no. treaties from the community law is binding and trumps domestic law bc it is its own independent body of law

Question 8

Would you describe the EU as a monist or dualist system?

Answer 8

Monist (?)

Question 9

What are the three principal modes of entering int’l agreements in US practice?

Answer 9

1) Article II Treaties- President with advice and 2/3 consent from senate
2) Congressional Executive Agreements- Either the prior authorization OR the subsequent approval of a simple majority of both Houses of Congress
3) Sole Executive Agreements- Agreements without congressional participation

Question 10

What does the constitution say about the Treaty-Making Power?

Answer 10

Article II treaties - president makes treaties with 2/3 approval of congress 
Expressly enumerated (Missouri)

Question 11

What does it mean to ratify a treaty?

How are treaties ratified in the US?

Answer 11

Ratification is approval by the Senate. It requires 2/3 majority

Question 12

Does anyone know how treaties are incorporated into US law?

Answer 12

Ratification or Self executing treaty (?)

Question 13

Once the Senate gives its advice and consent, does the president have to sign?

Question 14

How are treaties like Statutes passed by congress?

Answer 14

Both have to follow the constitution and cant be upheld if unconstitutional (Reid v. Covert)

Question 15

How are treaties different from statutes passed by congress?

Question 16

What’s the difference between Self-executing and non-self-executing treaties?
When will a court determine that a treaty is self-executing? What if there is no express statement by the executive or congressional branches?

Answer 16

• Self-executing treaty- a treaty which has language that states it will have domestic effect of its own force (those equivalent to an act of the legislature)
• Non-Self-executing treaty- One that was ratified with the understanding that it is not to have domestic effect of its own force (Those that the legislature must execute)

A self executing treaty will have explicit language that says it is self executing

Question 17

Is the modality of Congressional executive agreements provided for in the US Constitution?

Answer 17

No

Question 18

Can someone explain where the executive authority comes from to make these types of agreements?

Answer 18

Inherent constitutional authority the president has with full power of foreign relations

Question 19

How does the European Union approach to incorporation of international law differ from the US approach?

Question 20

What are the facts, issues, the holding and rationale of Missouri v. Holland?
Does the opinion (per Holmes) impose any limits on the treaty-making power?

Answer 20

The Migratory Bird Treaty act was made pursuant to a treaty between the U.S. and Great Britain. Missouri brought suit saying the treaty was unconstitutional because it violated the state’s rights regarding regulation of a species of endangered birds through its reserved 10th amendment powers.
Holding: Treaties are the supreme law of the land when made under the authority of the U.S. Since the Migratory Bird Treaty Act was made pursuant to a treaty between the U.S. and Canada its provisions are the Supreme law of the land and binding on the state of Missouri

Question 21

What were the Bricker Amendments?

Answer 21

Amendments promoted by conservative sentators after the Missouri decision to prevent the US from adopting civil rights treaties that would go beyond Congress’ constitutional power.

President basically said that he wouldn’t do that so the senators dont have to worry.
p. 219

Question 22

What about Reid v. Covert? Facts, issue, holding and rationale?

Answer 22

A woman killed her military husband on the army base, she was subject to a military code of justice. She was tried without her 5th and 6th amendment rights because of a treaty that the U.S. signed subjected her to this tribunal (she was a person serving with or accompanying the armed forces overseas).
treaty with Britain that allows US military courts to have jurisdiction over american military abroad and their dependents
Holding: Treaty is unconstitutional. No agreement with a foreign nation can confer power on the congress, or any other branch of government, that is free from the restraints of the constitution. doesn’t make sense if a a fed statute can overrule a treaty and that statute has to follow constitution
p. 219

Question 23

What does Bond v. US stand for? What was the dissenting view?

Answer 23

(revisits Missouri v Holland) (state rights)
D poisoned P within the state. D was charged under the Chemical Weapons Convention Implementation Act of 1998, which was passed to implement the Intl convention on chemical weapons.
Issue: Does Congress have the authority to enact legislation that enforces a treaty but goes beyond the scope of the treaty and intrudes on traditional state powers?
Holding: No, While Congress has the authority to create legislation to enforce treaties, congress must give clear indication as to what the new statute means before a statute can be interpreted to intrude on the police power of the states. it is incumbent upon the courts to be certain of congress’ intent before finding that federal law overrides state powers.

Question 24

How does the conclusion of a congressional-executive agreement differ from the process for concluding an Article II treaty?

Answer 24

They don’t need ratification of Congress after the treaty is signed. Congressional approval happens prior to signing. p. 215

Question 25

What does the chart on p. 226 of the casebook tell you?

Answer 25

Because executive agreements are substantially easier to pass than Article II treaties with the same weight, Presidents have increasingly chosen to purpose executive agreement

Question 26

What’s the holding in Made in USA Foundation?

Answer 26

NGOs (coalition of labor orgs) attempted to get SCOTUS to render NAFTA, a Congressional-Executive agreement, as unconstitutional because of the procedural fashion in which it was created.
Holding: The Constitutionality of procedures used by congress to approve international commercial agreements is a nonjusticiable question.
p. 228

Question 27

What happened in the Youngstown Case, cited in Dames & Moore?

Answer 27

President’s seizure of a steel company to make the workers work during a strike was unconstitutional because it went beyond his executive power.

Jackson concurrence establish the 3 zones of presidential powers: President acts pursuant to an express or implied authorization; President acts in the absence of congressional authorization; President acts in contravention of the will of congress

Question 28

What does the Dames & Moore case stand for?

What was the reasoning supporting the SCOTUS upholding of the president’s actions?

Answer 28

Plaintiff had won a judgment from Iran, shortly after the president signed a sole-executive agreement with Iran which included an agreement to nullify all judgements that had been won against Iran so plaintiff brings claim to challenge the validity of the agreement.

Holding: There is no specific authority from congress giving the president the power to nullify a judgment. However, it has been a historical prerogative of the executive to use his authority to settle disputes between U.S. nationals and foreign states. Congress has made it a long continued practice to allow the president to do this, so its allowed. Sole-executive agreements are constitutional.