Moore: Do U.S. Courts Discriminate Against Treaties? Equivalence, Duality, and Treaty Non-Self-Execution

David H. Moore (Brigham Young Univ. - Law) has posted Do U.S. Courts Discriminate Against Treaties? Equivalence, Duality, and Treaty Non-Self-Execution (Columbia Law Review, forthcoming). Here's the abstract:

Despite the inclusion of treaties in the Supremacy Clause, only self-executing treaties are immediately enforceable in U.S. courts. The Supreme Court confirmed as much in its recent decision in Medellín v. Texas, which adopted a broad notion of non-self-execution. Most foreign relations law scholars seek to limit the incidence of non-self-execution. They argue, among other things, that non-self-execution violates the Supremacy Clause, which mandates equivalent treatment of the Constitution, statutes, and treaties. A minority of scholars has responded by arguing variously that the doctrine of non-self-execution does not discriminate against treaties, that the Constitution does not require equivalence, and that differential treatment is justified by treaties’ dual nature – they are, first, instruments of foreign affairs and, second, domestic law.

This Essay introduces a new argument in favor of a broad notion of non-self-execution. Rather than emphasize the unique duality of treaties, this Essay highlights the previously unacknowledged reality that the Constitution and statutes also possess a dual nature. While their primary role is as domestic law, they also play a role in foreign relations, particularly when they apply extraterritorially. Recent guidance from the Supreme Court on the extraterritorial application of the Constitution and statutes permits a timely comparison of the judicial treatment of all three sources of supreme law in their area of secondary application. Comparison along this new axis reveals that treaties fare better than statutes under even a broad notion of non-self-execution. The new analysis thus advances the argument for non-self-execution. The comparison also has important implications for other issues bearing on the domestic status of treaties.