The Constitution makes treaties ratified by the Senate the law of the land, no?
If yes, then can the Administration (or Congress) be brought to court in order to force it to follow a ratified treaty? If yes, who would the plaintiff have to be (any citizen, the other country party to the treaty)? In what court (any Federal, the Supreme Court)?
E.g., when GW Bush pulled out of the ABM treaty with Russia in order to pursue a ‘missile shield,’ could he have been sued to follow it? Would the suit have been successful? Any precedents?
And here’s the trickiest part: What about our U.N. treaty? Would the constitutional treaty-is-law clause make U.N. resolutions binding on the U.S. if the issue was ever pursued in courts?
So e.g., if Congress decided to withhold U.N. funding (again) because of a tiff in the U.N., could Congress be ordered by a federal judge to pay up?
I asked a similar question a while back and the answer was no. In my question, I asked if a person could sue the federal gov’t. to pay its UN dues and the answer was that nobody would have the legal standing to force a suit. I don’t think that a judge can just jump in, I think the question of whether to honor the treaty is a political one that we must use the political process, rather than the legal process, that we must influence through politics rather than through the courts.
If one can establish standing, one can conceivably challenge the unilateral abrogation of a treaty without the Administration having gone through the proper procedures to do so.
E.g., if we have a (full-fledged, Senate-ratified) treaty with Costa Rica under which bananas can be imported at a low tariff, and the New York and San José Banana Importers, Ltd., have been making money importing bananas, and a President decides that thanks to campaign contributions from Chiquita, their Venezuelan bananas are going to get preference and unilaterally places equal tariffs on all imported bananas (which gives the larger Chiquita operation an edge that had been offset by the lower tariff for Costa Rican bananas), then NY&SJBI would have standing to sue for the enforcement of the treaty with Costa Rica, low tariff and all, since they’ve obviously suffered an economic injury from the President’s act.
Well, federal courts are given jurisdiction in the Constitution to adjudicate disputes between the US and other countries. But I can’t imagine the circumstances under which an individual has standing to dispute an agreement between countries.
As far as the ABM treaty goes, the US did not violate the treaty, the US withdrew from it in exactly the process contained in the treaty. Nearly all treaties contain a provision to allow a country to withdraw based upon its supreme national interests.
I don’t really understand your question about the UN. Treaties are law in the US, but UNSC resolutions are not treaties. Even if there were a conflict between a treaty and a law, courts tend to hold that whichever was enacted later in time would be applied, lacking that, that the specific trumps the general.
The Federal courts all the time have forced the Feds to live up to the treaties it has signed. The people with standing to do this have been Native Americans. (Some of which style themselves as independent nations. Whether they really are is not for this thread.)
Also, relative to the bilateral ABM treaty, Russia agreed with the US to void that treaty and move on to future, assumedly more relevant agreements. There was some “spin” on some of the news strories that the Russian agreement was rather forced, but I didn’t get the impression they were really put out over this.
I believe the US formally abrogated the weapons testing treaty in accordance with the treaty.
This is not quite the same thing, but some time ago (I heard about this in HS and that was 50+ years ago) Congress passed a law to protect certain migratory birds. This was ruled an unconstitutional abrogation of state’s rights (after someone with proper standing, I assume challenged it in court). The president then negotiated and the Senate ratified a treaty with Canada to similar effect. The subsequent challenge was refused since the government had exclusive powers over treaties.
Does this mean that the government could agree to a treaty on terrorism that violated some clear provision of the consititution? Interesting question.
One issue is whether the treaty is “self-executing”, or requires Congress to pass a law implementing the treaty. Treaties that are not self-executing cannot be enforced by the courts.
You have a good memory. The case was Missourri v. Holland, and some people were afraid that it would mean exactly what you describe; that a treaty could abrogate any provision of the Constituton, and give Congress a “loophole” to the Bill of Rights and other constitutional limitations on power. In fact, folks tried to pass an amendment to stop this from happening, the “Bricker amendment.” They needn’t have worried, though; all the case stands for is that the 10th Amendment doesn’t stand as a bar to the Treaty Power. Prior to the treaty, there was no federal power to validly act under, but after it, there was–the treaty power. Since the provisions of the agreement didn’t contravene any other limitation on constitutional power, the Court reasoned that any limitation on the treaty would have to come from the 10th Amendment. However, the treaty power is specifically delegated to the federal government, and the 10th Amendment only purports to apply to non-delegated powers.
More to the point of the OP, SCOTUS upheld the President’s authority to terminate treaties without congressional approval in Goldwater v. Carter. Carter recognized the People’s Republic of China instead of the Taiwanese government as the official govenrment of China, and announced that he planned to terminate the Taiwan mutual defense treaty. Several Senators and others who claimed injury sued for declaratory and injunctive relief, but the Supremes refused to get involved, and ordered the district court to dismiss the complaint in a plurality decision. They cited to both the President’s exclusive power to regulate foreign policy, and the lack of judicially discoverable standards by which to judge the case, making this a “political question” not to be resolved by the courts. I agree. You really want some snot-nosed federal law clerk fresh out of law school deciding your nation’s foriegn policy for you?
