1 See Agora, 80 AJIL 913 (1986).

2 See, e.g., U.S. Const, art. II, §1, cl. 8, and §3; art. III, §2; art. VI, cl. 2; amend. IX; Paust, , Is the President Bound by the Supreme Law of the Land?—Foreign Affairs and National Security Reexamined 9 Hastings Const. L.Q. 719, 719, 740–58 (1982)Google Scholar, and references cited [hereinafter cited as Paust, President Bound]; Human Rights and the Ninth Amendment: A New Form of Guarantee, 60 Cornell L. Rev. 231 (1975); Rediscovering the Relationship Between Congressional Power and International Law: The Exceptions to the Last in Time Rule Concerning Clashes Between Treaties, Custom and Federal Statutes (with a Restatement of the Draft Restatement) (forthcoming) [hereinafter cited as Paust, Rediscovering the Relationship].

3 See, e.g., Paust, President Bound, supra note 2, at 740, 746–49, passim; see also Nowak, J., Rotunda, R. & Young, J., Constitutional Law 193 (3d ed. 1986)Google Scholar.

4 Paust, President Bound, supra note 2, at 748–49.

5 See, e.g., id. at 724–25,727, 750–58; Paust, Rediscovering the Relationship, supra note 2; notes 6–32 infra.

6 3 U.S.(3 Dall.) 199 (l796).

7 Id. at 272 (Iredell, J.); see also id. at 260–61 (“Congress . . . alone ha[s] such authority” to “vacate” a treaty for breach). That same year President Washington, in a message to the House of Representatives, affirmed that “every Treaty (properly ratified]. . . thenceforward becomes the law of the land . . . , and . . . all the treaties made . . . , when ratified, . . . become obligatory,” the treaty with Great Britain also exhibiting “in itself all the objects requiring legislative provision.” Message of Mar. 30, 1796, in 3 The Records of the Federal Convention of 1787, at 371 (M. Farrand ed. 1937).

Importantly also, it was recognized in Secretary Jay’s 1786 report to Congress during the Confederation that a treaty of the United States immediately bound “the whole nation, and superadded to the laws of the land,” and was to be “received and observed by every member of the nation.” Report of Secretary of Foreign Affairs John Jay, Oct. 13, 1786, extract reprinted in 1 C. Butler, The Treaty-Making Power of the United States 268, 270 n.4 (1902). Jay’s report was unanimously adopted by Congress. See C. Butler, supra, at 389. Given this pattern of expectation, it would have been improper even to suggest during the drafting of the Constitution that the President should have some new immunity from international law unlike any person or entity previously involved in the ratification of treaties or the shaping of custom. Indeed, such an incredible notion would have been both anticonstitutional and subversive of the law.

8 See United States v. Robins, 27 F.Cas. 825, 836, 867 (D. S. C. 1799) (No. 16,175), note (Rep. Marshall, 10 Annals of Cong. 614 (1800)); see also 27 F.Cas. at 832–33 (Judge Bee) (treaty is supreme federal law and judges are bound thereby).

9 United States v. Cooper, 25 F.Cas. 631, 641–42 (C.C.D. Pa. 1800) (No. 14,865) (Chase, J., on circuit).

10 United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (Marshall, C.J., opinion).

11 See The Flying Fish, 6 U.S. (2 Cranch) 170, 179 (1804) (Marshall, C.J., opinion).

12 United States v. Smith, 27 F.Cas. 1192,1229–30 (C.CD.N.Y. 1806) (No. 16,342) (Paterson, J., on circuit).

13 The Joseph, 13 F.Cas. 1126, 1130–31 (C.C.D. Mass. 1813) (No. 7,533) (Story, J., on circuit), aff’d, 12 U.S. (8 Cranch) 451 (1814) (the same year as Brown; see note 14 infra).

14 12 U.S. (8 Cranch) 110 (1814). By the time Brown was decided, the phrase “law of nations” had also been used interchangeably with the phrase “international law” to cover both customary and treaty-based law and to relate to private rights, duties, remedies and sanctions, as well as those concerning nation-states and official elites. See, e.g., Paust, On Human Rights: The Use of Human Right Precepts in U.S. History and the Right to an Effective Remedy in Domestic Courts (forthcoming); see also Litigating Human Rights: A Commentary on the Comments, 4 Hous. J. Int’l L. 81, 84–88, 90–91, 94, 99 & n.l23 (1981).

15 See 175 U.S. 677, 711 (1900).

16 See Charney, , The Power of the Executive Branch of the United States Government to Violate Customary International Law 80 AJIL 913, 921–22 n.27 (1986)Google Scholar. This error one might term the “usage” error.

17 See, e.g., Paust, President Bound, supra note 2, at 735–36 8c n.57; Paust, Rediscovering the Relationship, supra note 2 (also citing several other cases).

18 See 12 U.S. (8 Cranch) at 128. The question of “policy” becomes whether one should follow long-term practice in a given case. The claim addressed was actually one that the President should be able to seize property that, by international law, was subject to seizure, not that a President could violate such law. See id.

19 See, e.g., Paust, President Bound, supra note 2, at 727 & n.24, 736, 754 & n.142, 757; Paust, Rediscovering the Relationship, supra note 2; see also Glennon, , Raising The Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional? 80 Nw. U.L. Rev. 321, 336–38 (1985)Google Scholar. Glennon wrongly suggests, however, that Brown supports a claim that Congress could authorize a violation of customary law because the Chief Justice declared that the legislature can consider and modify “questions of policy” or decide not to follow mere “usage.” See id. at 329 & n.50, 337 & n.118.

20 See 12 U.S. (8 Cranch) at 127–29; see also Paust, President Bound, supra note 2, at 736, 746–48, and references cited.

21 See 175 U.S. at 711 (citing Brown).

22 See also Paust, President Bound, supra note 2, at 727 & n.24, 728 n.24, 731. Professor Glennon has written that I have “mistakenly . . . cited The Paquete Habana in support of the . . . proposition, that the President is bound by international law.” See Glennon, supra note 19, at 337.I still think it evident, however, that the majority opinion has the effect of voiding an executive seizure of an enemy vessel in violation of customary international law, that the express recognition that the Executive cannot order a violation even of “usage” necessarily affirms that the President is bound by international law, and, therefore, that the case certainly does “support” such a “proposition.” See also Charney, supra note 16, at 917.

Professor Glennon does not refer to the quoted language from The Paquete Habana, which cites Brown, and seems to have mistakenly assumed that Justice Gray’s opinion elsewhere demonstrated an “apparent willingness to except personal orders of the President.” See Glennon, supra, at 339 (emphasis added). Justice Gray’s express language quoted at note 21 supra obviously obviates any such interpretation. Moreover, just because Justice Gray said that the Court was “bound” to take judicial notice of a particular rule of international law “in the absence” of a “public act” of the “government” (see 175 U.S. at 708; Glennon, supra, at 339 n. 133), it cannot rightly be assumed that acts in violation of international law, which is supreme federal law, are authoritative public acts and not acts ultra vires. Additionally, it is not safe to assume that relevant acts of a “government” are executive acts and not those of the legislature; and it does not follow that because a court must take judicial notice in such a circumstance that it may not also take judicial notice in others. Here, Justice Gray’s opinion in Hilton v. Guyot, 159 U.S. 113, 163 (1895) (Gray, J., opinion) also seems to be instructive. See note 58 infra.

Professor Glennon’s main point seems to be that the executive acts in The Paquete Habana were those merely of an admiral and not those of the President. See Glennon, supra, at 338–39. In a sense, the Court voided the actions involved by separating them from more general orders of the President, while recognizing nonetheless that a President could not lawfully order a violation even of mere usage. The President’s orders were broad. As Glennon rightly notes, when the admiral requested specific guidance, he received an “equivocal” response. See id. at 339 & n.130. Moreover, even after seizure of the vessels involved and their transit to port, there was no intervention by the President to order their release or later to stop the sale of the vessels. The matter may have been so uncertain that it had to be litigated before the Supreme Court; the Court noted, in fact, that specific guidance for the admiral rested upon “implication and evident intent.” See 175 U.S. at 713. Thus, the separation of the admiral’s acts from those of the President may not have been apparent until after the Court’s decision.

Professor Glennon also states that the “dissenters believed that the President could abandon international law.” Glennon, supra, at 339 n. 135. Justice Fuller’s dissent, however, made no such assumption. Instead, Fuller argued that there was no such rule of immunity from seizure, only mere “usage” to that effect or notions of “morality” or “comity,” adding: “I am unable to conclude that there is any such established international rule . . . . It is not an immutable rule of law . . . not a matter of right. . . . It is . . . ‘a rule of comity only, and not of legal decision.’. . . [T]hese vessels were not exempt as matter of law . . . .” See 175 U.S. at 715– 21 (Fuller, C.J., dissenting).

23 1 Op. Att’y Gen. 566, 570–71 (1822). See also 2 Wharton, F., A Digest of the International Law of the United States 67 (1886)Google Scholar (“obligation upon each and every department of the Government”).

24 Stockton v. Williams, Walk. Ch. 120, 129 (Mich. 1843), quoted in Francis v. Francis, 203 U.S. 233, 240(1906).

25 Taylor v. Morton, 23 F.Cas. 784, 786 (C.C.D. Mass. 1855) (No. 13,799) (Curtis, J., on circuit), aff’d, 67 U.S. (2 Black) 481 (1862).

26 See 9 Op. Att’y Gen. 356, 362–63 (1859) (emphasis added).

27 See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862) (the same Court that affirmed Taylor v. Morton, supra note 25).

28 11 Op. Att’y Gen. 297, 299–300 (1865); see also 2 F. Wharton, supra note 23.

29 Chew Heong v. United States, 112 U.S. 536,563 (1884) (quoting Taylor v. Morton, supra note 25).

30 See In re Neagle, 135 U.S. 1, 64 (1890).

31 United States v. Mullin, 71 F. 682, 684, 686 (D. Neb. 1895).

32 See, e.g., note 22 supra.

33 See Valentine v. Neidecker, 299 U.S. 5, 14 & n.12, 18 (1936); Francis v. Francis, 203 U.S. 233, 240, 242 (1906).

34 See Henkin, , The President and International Law 80 AJIL 930, 936 (1986)Google Scholar.

35 Id. at 934.

36 See Glennon, , Can the President Do No Wrong? 80 AJIL 923, 924 (1986)Google Scholar; see also Glennon, supra note 19, at 325, 330–39, 352 & n.231.

37 Glennon, supra note 36, at 927; see also id. at 930.

38 See Charney, supra note 16, at 919; see also id. at 917.

39 See Paust, President Bound, supra note 2, at 766.

40 See Henkin, supra note 34, at 934–36. Here, it is not worth inquiring further whether or when a particular law might “die” or somehow be “superseded,” whether or when nonlaw changes to a valid norm, or whether vague and “soft” rules change to “hard” law. The present inquiry assumes that at the relevant social moment (e.g., when a President acts or fails to act) an international law is at stake. Nonetheless, it may be worth noting that my reading of Sabbatino (376 U.S. 398 (1964)) and The Paquete Habana allows recognition of the need for the judiciary to seek to identify, clarify, supplement and apply relevant international law, but only when such law actually exists. See Paust, , letter, 18 Va. J. Int’l L. 601 (1978)Google Scholar; see also The Concept of Norm: Toward a Better Understanding of Content, Authority, and Choice, 53 Temple L.Q. 226, 240– 50 (1980). In this sense, I assume that what some might term “soft” law is still, if not by definition, law. The main point is that the President is bound by law when authoritative law actually exists. See also note 73 infra.

41 See Henkin, supra note 34, at 935–36.

42 See id. at 935.

43 See id. at 936.

44 See id. at 936–37.

45 See id.

46 See text at notes 25, 29 supra.

47 See text at note 25 supra.

48 See text at note 26 supra.

49 See note 33 supra and accompanying text.

50 See text at note 21 supra.

51 See text at notes 10–12 and 28 supra.

52 See text at note 28 supra; see also text at notes 7–9, 13, 23–31 and 33 supra.

53 Precedential use of the word “controlling” also would obviate any such assumption. See text at note 26 supra (what President does must be “controlled” by the law of nations).

54 See Henkin, supra note 34, at 931.

55 175 U.S. at 700 (emphasis added).

56 Compare Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1390 n.1 (10th Cir. 1981) (McWilliams, J., dissenting) (“may be used . . . when”) with Goldklang, , Back on Board the Paquete Habana: Resolving the Conflict Between Statutes and Customary International Law 25 Va. J. Int’l L. 143, 150 (1984)Google Scholar.

57 See 622 F.Supp. 887, 902 (N.D. Ga. 1985).

58 See Charney, supra note 16, at 913; Glennon, supra note 19, at 329 (“only ‘where’ ”); Restatement of Foreign Relations Law of the United States (Revised) § 135 Reporters’ Note 3 (Tent. Draft No. 6, vol. 1, 1985) [hereinafter cited as Restatement (Revised)] (as if it stated “only where . . . or only in”). This one might term the “only where” error.

Again, The Paquete Habana made no such statement and such a statement would be erroneous in view of the long history of judicial incorporation of custom. Further, the language in Paquete seems to have been borrowed from Hilton v. Guyot, 159 U.S. at 163 (Gray, J., opinion), cited in The Paquete Habana, 175 U.S. at 700 (Gray, J., opinion). If so, Hilton is instructive for its lack of qualifications concerning the use of custom:

Id. (emphasis added). The clear implication is that Justice Gray knew full well that custom could be applied when there was a treaty or statute, but that when there was no treaty or statute, resort must still be had to customary international law. No other interpretation of Hilton and The Paquete Habana makes sense. Indeed, no other interpretation is consistent with historic patterns of use. Further, the statement in The Paquete Habana that courts are “bound” to give effect to customary rules “in the absence of any treaty or other public act of their own government” addresses a circumstance, as noted elsewhere in Paquete and in Hilton, when courts “must” (Paquete) apply customary law or must “still” (Hilton) apply customary law, not when courts may only apply customary law. It certainly does not declare that customary rules cannot be applied when there is a treaty or other public act; and it does not declare what priority must or can be given either to customary law or to a statute in the case of an unavoidable clash between the two.

59 See Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986) (Johnson, J., opinion) (emphasis added), cert, denied sub nam. Ferrer-Mazorra v. Meese, 107 S.Ct. 289 (1986).

60 Id. at 1455.

61 See Henkin, supra note 34, at 936.

62 See id.

63 See also Paust, President Bound, supra note 2, at 724, 727, 740–58, and numerous references cited; Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1510–15, 1520, 1530–31, 1534, 1539–45 (D.C. Cir. 1984) (en banc), vacated and remanded on other grounds, 53 U.S.L.W. 3824 (U.S. May 20,1985). Since Professor Henkin referred to “law” generally, not merely to international law, it may be worth quoting just one more of several such cases. United States v. Lee, 106 U.S. 196, 220 (1882): “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest,. . . are bound to obey it.”

64 See note 58 supra; Paust, ‘Rediscovering the Relationship, supra note 2. Theoretical speculation aside, one cannot restate law by ignoring predominant patterns of generally shared legal expectation and emphasizing a questionable reading of a few cases. Judges have already been misled. See text at notes 57 and 59–61 supra.

65 See text at notes 17–22 and 32 supra; note 58 supra.

66 See text at note 16 supra; Charney, supra note 16, at 913, 918, 921–22. But see id. at 917. These include the “usage” error and the “only when” error. See notes 16 and 58 supra.

67 See note 16 supra; see also text at notes 16–20 supra.

68 See Glennon, supra note 36, at 926, 929.

69 See Charney, supra note 16, at 917–18.

70 See Glennon, supra note 36, at 929.

71 See, e.g., The Scotia, 81 U.S. (14 Wall.) 170, 187–88 (1871) (“common consent of mankind”); The Prize Cases, 67 U.S. (2 Black) at 670 (“founded on the common consent as well as the common sense of the world”); The Antelope, 23 U.S. (10 Wheat.) 66, 115, 119, 121 (1825); Ware v. Hylton, 3 U.S. (3 Dall.) at 227 (“established by the general consent of mankind”); 4 Blackstone, W., Commentaries on the Laws of England 66 (1765)Google Scholar (“law of nations is. . . established by universal consent among the civilized inhabitants of the world” and “all the people”); Grotius, H., De Jure Belli ac Pacis, preface, sec. 40; bk. I, ch. I, pt. XIV (1625, Carnegie Endowment trans. 1925)Google Scholar.

72 See also Justice Jackson’s warning at Nuremberg: “We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to law,” quoted in Paust, , Aggression Against Authority: The Crime of Oppression, Politkide and Other Crimes Against Human Rights 18 Case W. Res. J. Int’l L. 283, 303 (1986)Google Scholar. If one is seriously interested in Justice Jackson’s scheme (see Charney, supra note 16, at 918 nn. 13–14; Glennon, supra note 19, at 324), one must also pay attention to such recognitions by Justice Jackson and to his other statements in Youngstown, such as: “the Executive [must] be under the law.” See Paust, President Bound, supra note 2, at 750–51 & nn. 127–28, 755 n.144.

Professors Charney and Glennon would surely resist any effort to misread Jackson and ignore predominant trends in decision to support an antidemocratic, unconstitutional, and unreviewable executive power in the area of “foreign affairs.” At Nuremberg, Justice Jackson related such claims to “evil”; and District Judge Herbert Stern made a similar recognition after heroically opposing such claims in the Tiede case. See, e.g., Stern, H., Judgment in Berlin 95, 98–99, 109–24 (1984)Google Scholar; Justice Jackson, , opening statement at Nuremberg, in 1 The Trial of German Major War Criminals 49–50 (1946)Google Scholar; Gordon, , American Courts, International Law and “Political Questions” Which Touch Foreign Relations 14 Int’l Law. 297, 316–17, 328, passim (1980)Google Scholar; Paust, President Bound, supra note 2, at 723–25, 729–30; see also Ex parte Milligan, 71 U.S. (4 Wall.) 2,119 (1866) (“By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers . . .”).

73 Certainly a President, as anyone else, might choose to violate a law as part of a strategy to change that law. It does not follow, however, that because one might violate a law in an effort to change it, one can do so free of relevant civil or criminal sanctions or that such an effort is “legitimate.” In addition, merely because some law violator had not suffered some sanction and had even caused others later to change a law, it does not follow that a violation of that law did not occur or that the violator, at the time, had a right to violate that law. Moreover, to pretend that law is disembodied from social reality—indeed, that it must tolerate violations of itself—can lead to the same set of errors. One should focus on the relevant social moment (see note 40 supra) and actual patterns of expectation and behavior then extant.

74 See Charney, supra note 16, at 919.

75 See text at note 28 supra; see also notes 13, 26 supra.

76 See Paust, Rediscovering the Relationship, supra note 2.

77 See note 21 supra.

78 See Paust, Rediscovering the Relationship, supra note 2; see also Lobel, , The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law 71 Va. L. Rev. 1071, 1134–47 (1985)Google Scholar; Paust, viewpoint, Int’l Practitioner’s Notebook, NO. 21, January 1983, at 18; id., No. 23, July 1983, at 10, 12. But see Goldklang, id., No. 22, April 1983, at 16.

79 See Paust, Rediscovering the Relationship, supra note 2. These are termed: (1) the indirect incorporation exception, (2) the “executed or vested” rights exception, (3) the “rights under treaties” exception, and (4) the war powers exception.

80 See Henkin, supra note 34, at 932.

81 Compare Restatement (Revised), supra note 58, §§131(3) and 135(1), and §135 comments a, d and e, with Paust, Rediscovering the Relationship, supra note 2.