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The Supreme Court Review


Richard Falk famously argued that domestic courts should operate as "agents of the international order."1 Recent academic debates over the role of international law in the U.S. legal system, and over the relevance of foreign and international materials in U.S. constitutional interpretation, are at least in part debates about this proposition. Modern variants of Falk's claim can be found in the works of scholars such as Harold Koh, Jennifer Martinez, and Anne-Marie Slaughter.2 These and other "internationalist" scholars consider the U.S. judiciary as part of a "global community of courts,"emphasize the values of international cross-fertilization and harmonization, and view international law as directly permeating, and often having primacy within, the U.S. legal system. "Constitutionalist" or "revisionist" scholars, by contrast, distinguish between the international and domestic legal systems, emphasize constitutional structure as a limitation on the domestic effect of international law,and generally advocate political branch rather than judicial control over the domestic implementation of international legal obligations.3 The leading judicial proponent of the internationalist perspective is currently Justice Breyer; the leading judicial proponent of the constitutionalist perspective is currently Justice Scalia.

Debates between internationalists and constitutionalists encompass a wide variety of legal issues. These issues include the status in the U.S. legal system of customary international law, the circumstances under which treaties are domestically enforceable, the extent to which the federal government can delegate regulatory functions to international actors, and the relevance of federalism to U.S. foreign relations. The practical significance of these debates continues to grow, as the United States, despite its isolationist reputation, becomes increasingly enmeshed in international regimes.As the need and opportunities for international cooperation have increased, multilateral regulatory treaties have proliferated, as have international institutions established to administer them. These institutions include a growing number of dispute resolution bodies that consider issues that overlap and intersect with the issues considered by U.S. courts.

Sanchez-Llamas v Oregon4 was an important test case for the internationalist perspective. The petitioners there, with the support of internationalist scholars, were seeking to have the Supreme Court create domestic remedies to help effectuate compliance with a multilateral treaty, and to set aside traditional state law procedures in order to implement an interpretation of the treaty that had been adopted by an international tribunal. In rejecting this effort in Sanchez-Llamas, the Court made clear that the Article m federal judicial power plays an important mediating role between the United States and the international legal system. Under the Court's approach, international law neither gives U.S. courts special powers nor limits their authority to decide cases, and U.S. courts are to consider the application of international law against the backdrop of traditional domestic remedial and procedural restrictions, even if the result is disuniformity in treaty interpretation.

While one should be cautious about reading too much into a single decision, the Court's approach to the federal judicial power in Sanchez-Llamas has potential relevance to a number of foreign relations law issues. In this regard, Sanchez-Llamas may have broader significance than the more widely discussed decision issued by the Court a day later, Hamdan v Rumsfeld,5 in which the Court held that the military commission system established by President Bush to try terrorist detainees was invalid. Hamdan may seem like a monumental decision, in that it repudiated one of the components of the Bush administration's legal strategy in the war on terrorism and seemed to give little deference to the administration's views about the scope of international law. The Court's decision there, however,ultimately rests on a particular construction of statutory provisions in the Uniform Code of Military Justice (provisions that Congress has since amended), and the Court's lack of deference may stem from facts specific to the war on terrorism, including the fact that the administration had never actually tried anyone in the military commission system that the Court was invalidating. Moreover,whereas Chief Justice Roberts wrote the majority opinion in Sanchez-Llamas, he did not even participate in Hamdan, so, to the extent that those decisions overlap, Sanchez-Llamas would seem to be abetter indicator of the likely approach of the Roberts Court.

Part I of this essay briefly describes the Sanchez-Llamas decision and explains how the federal judicial power played a central role in the Court's analysis. As explained in this part, the majority viewed the federal judicial power as imposing both a restraint on the federal courts' ability to advance the international order, and a protection against the delegation of the federal courts' adjudicative functions to that order. Part II considers potential implications of these two functions of restraint and protection for various foreign relations law issues. Part III outlines several benefits of these two functions of the judicial power in light of the current conditions of the international adjudicative system.

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