Historical Gloss and the Extradition Power

In a recently-published book, “Historical Gloss and Foreign Affairs: Constitutional Authority in Practice,” I document how the foreign affairs powers of Congress and the executive branch have been heavily shaped by historic governmental practices, on issues ranging from the recognition of foreign governments to the use of military force.

In this post, I discuss one example of a foreign affairs power that was shaped by practice and that also happens to relate to transnational litigation: extradition of criminal suspects to other countries. As this example shows, for foreign affairs powers that are not clearly enumerated in the text of the Constitution (of which there are many), governmental actors themselves have had to sort out the distributions of authority. Courts, in turn, have often given substantial weight to these political branch resolutions.

Extradition also provides an illustration of one of the themes in my book, which is that there are important and often overlooked interactions between international law and the U.S. separation of powers. During the early history of extradition in the United States, political actors were simultaneously working out their positions on the relevant international law rules while also working out their positions on matters of domestic authority, and those two projects inevitably intersected.

Background

Extradition is a process through which one country can ask another country to send a suspected criminal to it for prosecution or punishment. The United States has long extradited individuals to other countries, and, in modern times, even to some international institutions. Currently, the United States has extradition agreements with over 100 countries. It also sometimes extradites individuals as a matter of comity without an extradition treaty.

There is, however, no clause in the Constitution giving the federal government an extradition power. This is true even though the Constitution (in Article IV) addresses extradition between U.S. states. And it is not as if the issue was unknown to the Founders; indeed, it had arisen in the pre-constitutional period. In events in 1784 known as the Marbois-Longchamps affair, Pennsylvania had refused to extradite a French citizen who had assaulted a French ambassador in Philadelphia, although it did punish the offender itself, applying the law of nations as part of Pennsylvania common law. In connection with that affair, Secretary for Foreign Affairs John Jay was uncertain about whether the national government could demand that Pennsylvania extradite, and the government did not attempt to do so.

Because the Constitution does not address international extradition, it also does not provide guidance about the process for determining whether someone should be extradited, or which institutional actors can or should be involved. These issues were instead worked out through a mix of governmental practice and judicial decisions.

The early history of U.S. extradition practice is too rich to cover in a single blog post, and I am currently writing an article on the topic. That history includes, among other things, a time in which U.S. states engaged in international extradition, sometimes with the encouragement of the federal government. There were also many issues that had to be resolved during that period concerning judicial review of extraditions and whether and to what extent extradition treaties needed implementing legislation—issues that started to surface as early as the famous Jonathan Robbins case of 1799-1800.

This post focuses on two separation of powers questions relating to extradition that emerged after adoption of the Constitution: first, whether the President had the constitutional authority to extradite as a matter of comity; and, second, whether a federal statute (as opposed to a treaty) could authorize the President to extradite.

Presidential Extraditions?

One question that arose shortly after the Founding was whether Presidents could extradite someone on their own authority. While serving as Secretary of State under George Washington, Thomas Jefferson concluded that the President did not have that authority. “The laws of the United States, like those of England,” he reasoned, “receive every fugitive, and no authority has been given to our Executive to deliver them up.”

But one of Jefferson’s successors as Secretary of State, Thomas Pickering, thought that the President did have this authority, and apparently Attorney General Charles Lee agreed. Later administrations, however, returned to the Jeffersonian view, apparently because they thought that something so connected to individual liberty interests should not rest with the executive alone. John Quincy Adams reasoned when he was Secretary of State, for example, that the authority of the President “to exercise an act of such important effect upon the rights of personal security, is more than questionable.”

Nevertheless, President Lincoln controversially extradited a suspected slave trader to Spanish-controlled Cuba as a matter of comity, invoking authority under “the law of nations and the Constitution.” Despite that incident, the generally prevailing view during the nineteenth century was that the President lacked extradition authority absent a treaty or statute.

The issue of presidential power over extradition was intertwined with issues of international law—in particular, whether the United States had an international legal duty to extradite fugitives even in the absence of a treaty. If it did, it might be problematic for U.S. foreign relations if the President refused to extradite. It could also be argued that the President’s Article II duty to take care that the “laws” are faithfully executed would have been triggered by such an international law obligation.

Prominent international law commentators like Grotius and Vattel had maintained that nations did have a duty to extradite even absent a treaty, but national practices at the time of the Constitution did not appear to support that claim. In any event, the U.S. executive branch generally took the position that nations did not have such a duty. In 1821, for example, Attorney General William Wirt acknowledged that there was commentary supporting a duty to extradite, but he pointedly observed that “we know that there is a wide difference between [international law] as laid down by the received authors, . . . and the same law as it is to be read in the practice of nations.” Most U.S. courts had the same view as Wirt, although Chancellor Kent disagreed, both in an 1819 judicial decision and in his treatise (as described here).

In 1936, the Supreme Court in Valentine v. United States unanimously stated that extradition, “albeit a national power, it is not confided to the Executive in the absence of treaty or legislative provision.” The Court cited, among other things, Thomas Jefferson’s early views on the matter, as well as “general opinion” and “practice . . . in accordance with it.” The Court also reasoned that the need for a treaty or statute “rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual.” This was, interestingly, the same year that the Court otherwise endorsed broad presidential power over foreign affairs in United States v. Curtiss-Wright Export Corporation.

Statute-Based Extraditions?

Although most U.S. extraditions have been carried out through treaty arrangements, the executive branch has generally assumed that statutory authorization would be sufficient in the absence of a treaty.

For example, Jefferson assumed in his early letter on the subject that “the legislature of the United States” could “establish a convention for the mutual delivery of fugitives.” In 1821, Attorney General Wirt specifically suggested that Congress should delegate extradition authority to the President. In 1833, Roger Taney, when he was Attorney General, reasoned that the President could not extradite a suspect to another nation absent either statutory or treaty authority.

The Supreme Court by the early twentieth century itself endorsed this idea, stating in dicta that, “Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient.”

It is not clear, however, what support there is in the constitutional text for statute-based extraditions.

Congress in 1900 authorized extradition of individuals who had committed crimes within a country or territory occupied by the United States. (A version of this statute exists today.) In a 1901 decision, Neely v. Henkel, the Supreme Court upheld an extradition under that statute to U.S.-occupied Cuba, reasoning that the statute was a necessary and proper implementation of the treaty ending the Spanish-American War. The Court said that it “express[ed] no opinion” on whether Congress would have had the power to provide for this in the absence of the treaty.

The issue of statute-based extradition has not been tested much in court, but there is one modern lower court decision addressing it. Congress in 1996 authorized extraditions to the international criminal tribunals for both Rwanda and the former Yugoslavia. In upholding an extradition under this legislation, the Fifth Circuit in Ntakirutimana v. Reno reasoned (in a 2-1 decision) that “[e]ven if Congress has rarely exercised the power to extradite by statute, a historical understanding exists nonetheless that it may do so.”

Consistent with that understanding, the current extradition statute also allows for extradition without a treaty of non-citizens “who have committed crimes of violence against nationals of the United States in foreign countries.” The constitutionality of this provision does not appear to have been litigated.

Conclusion

Like many issues of foreign affairs authority, the scope and allocation of extradition authority was worked out over time, in part through the practices of government. There has been more judicial involvement in this area than for many of the examples in my book because of the liberty interests involved. But courts have given significant weight to longstanding practices and understandings.

Extradition also illustrates how U.S. views about the content of international law can affect its understandings of governmental authority. If the United States had accepted that international law required extradition even in the absence of a treaty (as Chancellor Kent had contended), it likely would have provided for statute-based extraditions much earlier in its history, and it might have even accepted executive-based extraditions. As it happens, a mix of state law and the treaty power provided the basis for U.S. extraditions during much of its history. But the executive branch and the courts long assumed that Congress could provide for extradition, and eventually it did.