Written by Sarah Weiner
The American Law Institute is in the middle of an effort to update its Restatement (Third) of the Foreign Relations Law of the United States, published in 1987. The Restatement has plenty of new issues to address, but perhaps none as knotty as those posed by the Roberts Court’s federalism jurisprudence. Over the past decade, the Court has increasingly restricted the federal treaty-making power: first, in Medellín, by making it harder for treaties to have binding domestic effect without an implementing statute from Congress, and second, in Bond, by narrowly (and creatively) construing such an implementing statute to avoid reaching areas of traditional state regulation. Both of these cases deal in some way with statutes—whether they need to exist and, if so, how to interpret them. In interpreting statutes, the Court applies a “presumption against pre-emption in areas of traditional state regulation.” But does that presumption against preemption extend to treaties as well?
The answer to that question matters more than one might think. Treaties often make commitments in areas traditionally subject to a state’s police powers, especially obligations to criminalize certain conduct, and may come into conflict with state laws in various (and sometimes unexpected) ways. For example: Do “friendship, commerce, and navigation” treaties, which address the treatment of foreign companies within the United States, preempt state whistleblower protection laws? Which state tort claims are preempted by the Warsaw Convention, which limits the liability of international airlines? Is the means of service described in the Inter-American Convention on Letters Rogatory exclusive of alternative service options otherwise available in a state long-arm statute? To know the answer to these questions, courts have to know how to interpret the underlying treaty. And to do that, they must know whether the presumption against preemption applies.
The most recent, publicly available draft of the Restatement (Fourth) does not address this crucial question in the text or the comments. Rather, it offers only a lukewarm Reporters’ Note, which states hedgingly that “[t]he case law does not clearly support any presumption regarding preemption of State law by a treaty.”
This statement is too timid. The Reporters’ measured stance on the preemption presumption comes from what they perceive to be conflicting case law. But the case law is only confused because the Reporters’ Note attempts to group together unlike cases: non-self-executing treaties, implementing statutes, and self-executing treaties. Properly understood, the presumption against preemption simply does not (and should not) apply to self-executing Article II treaties.
The Reporters’ Note first observes uncertainty over the applicability of the preemption presumption to foreign affairs statutes. The Note initially states that “[t]he Court has indicated that [the] presumption might not apply to statutes that concern foreign affairs,” citing cases such as United States v. Locke. However, the Note also cites Bond for the evidence that, in the case of a statute implementing a treaty, the Court applied the “principle that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers.”
Although the Reporters’ Note sets out these precedents as contrasting cases, they can be reconciled without much difficulty. In Bond, the Court considered whether the statute implementing the Convention on Chemical Weapons—a non-self-executing treating—“reache[d] a purely local crime” involving a woman’s assault against her husband’s mistress. Applying a cousin-canon to the presumption against preemption, the Court held that the Implementation Act did not criminalize the defendant’s conduct because to “radically readjust the balance of state and national authority,” Congress “must be reasonably explicit.” In other words, the Court expressed skepticism that the statute, as applied to the defendant, touched on foreign affairs. Reading Bond together with cases such as Locke, one could conclude that the Court does not extend the presumption against preemption to foreign affairs statutes (Locke), but it will not automatically assume that implementing statutes are foreign affairs statutes (Bond).
The Court engaged in considerable interpretive gymnastics in Bond to avoid answering a knottier constitutional question—whether the Implementation Act, if it did extend to Bond’s conduct, exceeded the scope of the Treaty Power and thus violated the Tenth Amendment. While Bond has raised serious constitutional questions about the scope of the Treaty Power, it does not imply that the presumption against preemption should extend to treaties. To the contrary, the Bond Court explicitly engaged in statutory interpretation to avoid interpreting the Convention itself. In fact, the Court implied—albeit in dicta—that that the presumption against preemption does not extend to treaties. Chief Justice Roberts’ majority opinion states, “Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under [the Implementation Act], and the statute—unlike the Convention—must be read consistent with principles of federalism inherent in our constitutional structure.”
Moving away from statutory interpretation to treaty interpretation, the Reporters’ Note next states that “[i]n many cases in which the Supreme Court has found State law to be preempted as the result of a treaty, it has not referred to any presumption. On a few occasions, however, the Court has suggested that the general presumption against preemption should apply to treaties.” The Note cites two cases for this claim, Guaranty Trust Co. v. United States and United States v. Pink. Both cases interpreted the scope of the “Litvinov Assignment,” which assigned certain claims by the Soviet Union to the United States as part of the United States’ new diplomatic recognition of the government of the Soviet Union. The trouble with the Reporters’ citation of Guaranty Trust and Pink is that the Litvinov Assignment was executed through the exchange of letters between executives; it was not an Article II treaty. To the extent that these cases address the presumption against preemption in the context of “treaties,” that discussion is appropriately understood as dicta.
More recent Supreme Court cases, also cited by the Reporters, more clearly state the rule: the presumption against preemption does not extend to treaties. For example, in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, the Court explained that “the nation-state, not subdivisions within one nation, is the focus of the [treaty] and the perspective of our treaty partners. Our home-centered preemption analysis, therefore, should not be applied, mechanically, in construing our international obligations.” In so holding, the majority rejected Justice Steven’s argument in dissent that a “treaty, like an Act of Congress, should not be construed to preempt state law unless its intent to do so is clear.” In rejecting a blunt presumption against preemption, the Court instead relied on a more nuanced variety of factors—including “text, purpose, and overall structure”—to discern the best interpretation of the treaty.
More broadly, as a normative matter, it makes sense that the Court would apply a stronger federalism presumption against executive agreements that do not involve ex post Congressional approval than against Article II treaties. After all, treaty ratification requires the approval of two-thirds of the Senate, and Senators are better-positioned and better-incentivized to protect the interests of their home states than the Executive Branch.
The Reporters’ job is a difficult one. They must state the law as it is when the law is clear, but they must also state the law as it probably is—or probably should be—when the Court has not yet clearly spoken. When the United States negotiates, signs, and ratifies a treaty, it makes a set of commitments to international partners that should not be lightly misconstrued. Without an explicit directive from the U.S. Supreme Court to the contrary, the Reporters should state clearly that the presumption against preemption does not apply to self-executing treaties.
 Medellín v. Texas, 552 U.S. 491 (2008).
 Bond v. United States, 134 S. Ct. 2077 (2014).
 Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001).
 See, e.g., Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100-20.
 See, e.g., Ventress v. Japan Airlines, 486 F.3d 1111 (9th Cir. 2007).
 See, e.g., Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 522 F.3d 776 (7th Cir. 2008).
 See, e.g., Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634 (5th Cir. 1994).
 Restatement (Fourth) of the Foreign Relations Law of the United States § 108 reporters’ note 2 (Am. Law Inst., Tentative Draft No. 1, 2016) [hereinafter Draft Restatement (Fourth) of Foreign Relations Law].
 Section 108 addresses only self-executing treaties, and the Restatement (Fourth) covers only Article II treaties. The Drafters indicate that “[o]ther forms of international agreements may be taken up in the future.” Draft Restatement (Fourth) of Foreign Relations Law, supra note 8, at xix.
 Id. § 108, reporters’ note 2.
 United States v. Locke, 529 U.S. 89 (2000). The Reporters’ Note cites the following statement from Locke: “The state laws now in question bear upon national and international maritime commerce, and in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers.” Id. at 108.
 Draft Restatement (Fourth) of Foreign Relations Law, supra note 8, § 108 reporters’ note 2 (quoting Bond, 134 S. Ct. at 2089) (internal quotation marks omitted).
 Bond, 134 S. Ct. at 2083.
 Id. at 2089 (citations omitted) (internal quotation marks omitted).
 Id. at 2088.
 Guaranty Trust Co. v. United States, 304 U.S. 126 (1938).
 United States v. Pink, 315 U.S. 203 (1942).
 El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999).
 Id. at 175.
 Id. (majority discussion); id. at 181 (Stevens, J., dissenting).
 Id. at 169.