Is the Treaty Supremacy Rule Really Dead?
September 6, 2022
In Medellín v. Texas, the U.S. Supreme Court held that a non-self-executing treaty does not supersede conflicting state law, or perhaps that courts cannot enforce non-self-executing treaties to override conflicting state laws. After Medellín, one would have expected state courts in treaty supremacy cases to begin their analyses by determining whether a treaty is self-executing. However, a review of state court decisions from 2016 to 2021 shows that this is not actually how state courts behave—at least not in private law cases. Instead, they typically address treaty supremacy claims on the merits, without considering whether the treaty at issue is self-executing. This suggests that the traditional treaty supremacy rule, as it existed before the birth of modern non-self-execution doctrine, still survives in state court decisions in private law cases.
In my 2016 book, The Death of Treaty Supremacy, I demonstrated that, from the Founding until World War II, U.S. courts, commentators, and government officials conceived of treaty supremacy doctrine and self-execution doctrine as two independent, non-overlapping doctrines. Treaty supremacy doctrine governed the relationship between treaties and state law. Self-execution doctrine was a federal separation of powers doctrine that governed the division of power over treaty implementation among the three branches of the federal government. The treaty supremacy rule, rooted in the Supremacy Clause, meant that treaties supersede conflicting state laws, and that judges have a constitutional duty to apply treaties when there is a conflict between a treaty and state law. There was no exception to the treaty supremacy rule for non-self-executing (NSE) treaties because the concept of non-self-execution, as understood before World War II, was simply not relevant to cases involving alleged conflicts between treaties and state law.
However, the dominant understanding of the relationship between treaty supremacy doctrine and self-execution doctrine changed dramatically after World War II in response to the advent of modern international human rights law. In the late 1940s, litigants began invoking the human rights provisions of the UN Charter in conjunction with the traditional treaty supremacy rule in an effort to invalidate racially discriminatory state laws at a time when the Equal Protection Clause still permitted southern states to maintain Jim Crow. In Fujii v. State, a California state court applied the UN Charter together with the treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. That result was shocking. If Fujii was correct, it meant that the United States had effectively invalidated Jim Crow laws throughout the South by ratifying the UN Charter. That conclusion was politically unacceptable, even though the court’s legal reasoning in Fujii was entirely consistent with the traditional understanding of the treaty supremacy rule.
In response to Fujii, a group of clever lawyers invented a novel legal rule, which I call the NSE exception to the treaty supremacy rule. Under the NSE exception, judges are free to disregard non-self-executing treaties that conflict with state laws, despite the clear command of the Supremacy Clause that “judges in every state shall be bound by” ratified treaties. The lawyers who created the NSE exception claimed that the traditional treaty supremacy rule included an exception for non-self-executing treaties, at least since the Supreme Court’s 1829 decision in Foster v. Neilson. That claim was historically inaccurate, but it was politically convenient because it provided a plausible legal rationale for courts to refuse to apply human rights treaties to invalidate racially discriminatory state laws. Thus, the myth that the treaty supremacy rule had always included an exception for non-self-executing treaties soon became accepted as conventional wisdom. The NSE exception to the treaty supremacy rule was codified as black letter law in the Restatement (Second) of Foreign Relations Law, published in 1965.
Recent State Court Decisions
In the context of preparing a paperback edition of The Death of Treaty Supremacy, which will be published on September 13, 2022, I reviewed state court decisions in treaty supremacy cases that have been published in the last several years. The most surprising finding from the current research is that there is a discrepancy between black letter law and state court judicial practice. Black letter law, under the U.S. Supreme Court decision in Medellín v. Texas, holds that “a non-self-executing treaty does not by itself give rise to domestically enforceable federal law.” Thus, according to the self-execution doctrine articulated by the Court in Medellín, U.S. courts may not apply a non-self-executing treaty as a rule of decision to decide the merits of a case. See Restatement (Fourth) of Foreign Relations Law of the United States § 310 (Am. Law Inst. 2018). Therefore, logically, courts must first decide whether a treaty is self-executing or non-self-executing before applying the treaty as a rule of decision. But that is not how state courts actually behave. In practice, in treaty supremacy cases involving human rights treaties, state courts apply the NSE exception to the treaty supremacy rule. However, in most treaty supremacy cases that do not involve human rights treaties, courts apply the treaty to decide the merits of the treaty supremacy argument, without even considering whether the treaty at issue is self-executing or non-self-executing.
To assess the current status of the relationship between the treaty supremacy rule and self-execution doctrine, I did an electronic search to identify state court decisions published between January 1, 2016, and October 31, 2021, in which one party raised a treaty supremacy argument. (A treaty supremacy argument is an argument that a court should apply a treaty as a rule of decision to preempt state law or to reverse a judicial decision based on state law.) The search identified eighteen such state court decisions. Identifying treaty supremacy cases is not an exact science, but I am confident that those eighteen decisions constitute all, or almost all, of the published state court decisions during the specified time frame in which a party raised a treaty supremacy argument.
Those eighteen treaty supremacy cases can be divided broadly into two groups: cases involving human rights claims based on the International Covenant on Civil and Political Rights (ICCPR) and everything else. The data set includes four cases in which a party raised a treaty supremacy argument based on the ICCPR: State v. Ball (La. 2020); State v. Dressner (La. 2018); Turrubiartes v. Olvera, 2017 WL 2375787 (Tex. App. 2017); and State v. Horton (Ariz. Ct. App. 2016). In all four cases, the court said that the ICCPR is not self-executing. In all four cases, the court’s rationale for rejecting the treaty supremacy argument relied at least partly on the modern NSE exception to the treaty supremacy rule. (In Ball, Dressner, and Horton, the courts also rejected the treaty supremacy argument on the merits.)
In contrast, none of the other fourteen decisions applied the NSE exception to the treaty supremacy rule. See In re: State Question No. 807, Initiative Petition No. 423 (Ok 2020); Rockefeller Technology Investments v. Changzhou Sinotype Technology Co., Ltd. (Cal. 2020); Daskin v. Knowles (Del. 2018); State v. Montgomery (Ohio 2016); Savage v. Allstate Insurance Co. (Ky. Ct. App. 2021); Estate of Herzog v. Herzog (Cal. Ct. App. 2019); Interest of T.M.E. (Tex. App. 2018); Tadross v. Tadross (Ohio Ct. App. 2017); Gandy v. Raemisch (Colo. App. 2017); El Zoobi v. United Airlines, Inc. (Ill. App. Ct. 2016); Bevilacqua v. U.S. Bank (Fla. Dist. Ct. App. 2016); Ingeneria y Exportacion de Tecnologia S.L. v. Freytech, Inc. (Fla. Dist. Ct. App. 2016); Delex, Inc. v. Sukhoi Civil Aircraft Co. (Wash. Ct. App. 2016); and Gregor v. Otuorimuo (Conn. Super. Ct. 2016).
Indeed, only one of those fourteen cases even used the term “self-executing.” In Estate of Herzog v. Herzog, a California appellate court assumed, for the sake of argument, that the Hague Public Documents Convention is self-executing, but rejected the treaty supremacy argument on the merits. In the other thirteen cases, courts decided the merits of the treaty supremacy arguments without explicitly considering whether the treaty at issue was self-executing or non-self-executing. In five of those cases, the party raising a treaty supremacy argument won on the merits: Daskin v. Knowles; Savage v. Allstate; Interest of T.M.E.; Tadross v. Tadross; and El Zoobi v. United Airlines. In the other eight cases, the party raising a treaty supremacy argument lost on the merits: In re: State Question No. 807; Rockefeller Technology Investments; State v. Montgomery; Gandy v. Raemisch; Bevilacqua v. U.S. Bank; Ingeneria y Exportacion de Tecnologia S.L.; Delex, Inc. v. Sukhoi Civil Aircraft Co.; and Gregor v. Otuorimuo.
In sum, apart from cases involving the ICCPR, state courts today typically apply treaty supremacy doctrine in much the same way that they did before World War II; they address the merits of treaty supremacy arguments without bothering to consider whether the treaty at issue is self-executing or non-self-executing. This pattern of judicial decision-making presents a puzzle that requires some explanation.
A Possible Explanation
The apparent discrepancy between black letter law and state court judicial practice might be explained as follows. The data set of eighteen state court decisions includes thirteen cases where courts decided the merits of treaty supremacy arguments without any reference to self-execution doctrine. Nine of those thirteen cases involve The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, commonly known as the Hague Service Convention. Rockefeller Technology Investments v. Changzhou Sinotype Technology Co., Ltd. (Cal. 2020); Daskin v. Knowles (Del. 2018); Savage v. Allstate (Ky. Ct. App. 2021); Interest of T.M.E. (Tex. App. 2018); Tadross v. Tadross(Ohio Ct. App. 2017); Bevilacqua v. U.S. Bank (Fla. Dist. Ct. App. 2016); Ingeneria y Exportacion de Tecnologia S.L. v. Freytech, Inc. (Fla. Dist. Ct. App. 2016); Delex, Inc. v. Sukhoi Civil Aircraft Co. (Wash. Ct. App. 2016); Gregor v. Otuorimuo (Conn. Super. Ct. 2016). The Supreme Court has never explicitly decided whether the Hague Service Convention is self-executing. However, some lower federal courts have stated that the Convention is self-executing. See, e.g., Petmas Investors, Ltd. v. Sameiet Holbergs Gate 19 (D. N.J. 2014); Randolph v. Hendry (S.D.W. Va. 1999); Fox v. Regie Nationale des Usines Renault (W.D. Tenn. 1984). More importantly, in Volkswagenwerk Aktiengesellschaft v. Schlunk, the Supreme Court held: “By virtue of the Supremacy Clause . . . the [Hague Service] Convention pre-emptsinconsistent methods of service prescribed by state law in all cases to which it applies.” In light of these authorities, one could argue that state courts presented with treaty supremacy arguments based on the Hague Service Convention routinely assume, sub silentio, that the treaty is self-executing, and decide cases on the basis of that unstated assumption. However, that explanation applies to only nine of the thirteen cases where courts addressed the merits of treaty supremacy arguments without considering whether the treaty at issue was self-executing.
A more comprehensive explanation is based on the idea that judicial doctrine related to self-execution and treaty supremacy is schizophrenic. I have argued elsewhere that the distinction between public law and private law litigation helps explain judicial behavior in cases where litigants invoke treaty-based arguments before U.S. courts. In private law cases, the parties are all private parties. In contrast, public law cases involve litigation where a private party is adverse to a government actor. Bearing in mind the public-private distinction, the following explanation seems plausible.
In public law cases, including cases implicating human rights treaties, courts apply modern treaty supremacy doctrine, which includes an exception to the treaty supremacy rule for non-self-executing treaties. However, in private law cases, state courts apply traditional treaty supremacy doctrine, as it existed before World War II. Under that doctrine, the distinction between self-executing and non-self-executing treaties is simply not relevant to treaty supremacy cases. Hence, when presented with treaty supremacy arguments in private law cases, state courts apply the treaty supremacy rule to decide the merits of treaty supremacy arguments, without regard to whether the treaty at issue is self-executing or non-self-executing. There are a few outlier cases where courts apply modern treaty supremacy doctrine in private law cases. Estate of Herzog v. Herzog is one such outlier, insofar as the court apparently thought that self-execution doctrine was at least relevant to analysis of a treaty supremacy argument in a private law case. However, the vast majority of judicial decisions in the past few decades are consistent with a bifurcated approach in which state courts apply modern treaty supremacy doctrine in public law cases and traditional treaty supremacy doctrine in private law cases.
In an important law review article published in 2012, Professor Oona Hathaway and her co-authors agreed that judicial practice from World War II until the Supreme Court’s 2008 decision in Medellín generally followed a bifurcated approach between public law and private law. However, they maintained, the Supreme Court decision in Medellín induced lower courts to restrict judicial enforcement even of private law treaties after 2008. Without disputing that claim, it bears emphasis that neither of the two leading examples they cite—McKesson Corp. v. Islamic Republic of Iran and Gross v. German Foundation Industrial Initiative—is a treaty supremacy case. In neither case did a party urge the court to apply a treaty to preempt state law or to reverse a judicial decision based on state law. Thus, with respect to treaty supremacy cases, the pattern identified above seems to persist even after Medellín: state courts apply modern treaty supremacy doctrine, including the NSE exception, in public law cases, but they apply traditional treaty supremacy doctrine without any exception for NSE treaties in private law cases.
Perhaps this conclusion should not be too surprising, because the Supremacy Clause is addressed specifically to “the judges in every state.” The evidence suggests that state court judges in private law cases choose to follow the clear text of the Supremacy Clause, rather than the doctrine expressed in Medellín v. Texas and the ALI’s Restatement of Foreign Relations Law. Thus, notwithstanding the title of The Death of Treaty Supremacy, the traditional treaty supremacy rule may not be entirely dead. The traditional rule still survives in state court decisions in private law cases.