Tuesday, June 2, 2020
H. David Rosenbloom (Caplin & Drysdale, Washington, D.C.) & Fadi Shaheen (Rutgers), Treaty Override: The False Conflict between Whitney and Cook:
This paper explores the conditions under which a U.S. statute overrides an earlier self-executing treaty. Focusing on the often blurred distinction between three types of statute-treaty relationships — reconcilable inconsistencies, textual repugnancies, and conflicts — the paper concludes that, contrary to a common view, there is no contradiction between the 1888 Supreme Court decision in Whitney v. Robertson, stating that in the event of a conflict between a statute and a treaty the later-in-time provision always controls, and the Court’s 1933 decision in Cook v. United States, holding that a later-in-time statute does not override an earlier treaty without a clear expression of congressional intent to override. The paper explains that Cook merely finds no conflict to which Whitney’s later-in-time rule might apply: Together, the two decisions harmoniously stand for the proposition that while typically a later-in-time treaty overrides an earlier repugnant statute, a later-in-time statute overrides an earlier repugnant treaty only if Congress has clearly expressed its intent to override or if yielding to the treaty would render the statute a nullity.
Though the Court did not say as much, Cook’s approach is an application of the canon of construction favoring a specific provision over a general one. Reconceptualized this way, Cook cannot be said to give general primacy to treaties over statutes.