Profs discuss role of states vs. feds on international law

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Paust and Moore

Do treaties and other types of international agreements always trump state laws? Or do some infringe on powers belonging to the states?  Answers to these and other questions were served up in a lunchtime discussion titled “Is International Law U.S. Law?” sponsored by The Federalist Society.

Law Center Prof. Jordan J. Paust said the so-called “Supremacy Clause” and other elements of the U.S. Constitution point to a clear conclusion: the federal government has the power to execute “all treaties, not just those you like.”   These same elements bind the U.S. president to enforce these treaties and other international agreements.

Prof. David Moore of Brigham Young University law school countered by noting that some scholars digest these provisions of the Constitution in a different way.  Moore said the cornerstone document of the United States does not specifically mention the second type of international law – Customary International Law.  Neither codified nor ratified, Customary International Law has been so consistently practiced that it is generally considered to be binding.

“I am a true conservative,” Paust said smiling. “I am trying to conserve the law, not rewrite the law. I really believe the founders would turn over in their graves” in the face of attempts to revise and reinterpret their intentions.

Moore parried, citing how the founding fathers should have been more specific in outlining the types of issues left to the states because treaties and agreements have expanded into areas not envisioned in the 1780s.

Paust responded that historic trends, court decisions, text and the intention of the Founding Fathers would all require revisions to dilute the role of the federal government in favor of expanded authority for the states.

He said there are more than 14,000 treaties and international agreements to which the U.S. is a party, adding, “the president executes international law every day.” He said 80 percent of these contracts are congressional and executive agreements requiring a simple majority in the House and Senate while only 12 percent are treaties requiring a two-thirds vote of the Senate.  What should be of real concern, he said, is the remaining 8 percent which are “sole executive agreements” reached by the president with no concurrence from either house – the infamous “checks and balances” that ensure a smooth-running ship of state.

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