Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution

John C. Yoo, University of California, Berkeley

Abstract

This Rejoinder responds to Professors Flaherty and Vazquez by advancing textual and structural constitutional arguments in defense of the doctrine of non-self-executing treaties. It first responds by raising several historical and contextual problems with Professor Flaherty’s Response. It then argues that requiring congressional implementation of treaties that regulate matters within Congress’s Article I, Section 8 powers respects the Constitution’s basic separation of the legislative and executive powers. This approach also ensures that treaties, which are asserted to be free from the Constitution’s federalism and the separation of powers limitations, will not assume an unbounded legislative power, and it promotes the Constitution’s principle that domestic legislation be made by democratic processes. Professor Yoo criticizes the position that the Supremacy Clause’s text requires automatic judicial enforcement of treaties as too simple and inconsistent with practice both in the treaty area and in the enforcement of federal statutory and constitutional provisions.