FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL WANG, 

No. 04-55772 Petitioner-Appellant,

D.C. No.

v.  CV-03-07470-CAS

ROBERT MASAITIS, U.S. Marshal, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

February 7, 2005—Pasadena, California

Filed July 27, 2005

Before: Warren J. Ferguson, John T. Noonan, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins;

Dissent by Judge Ferguson

8643
COUNSEL

Hoyt Sze, Office of the Federal Public Defender, Santa Ana,

California, for the petitioner-appellant. 

Mark C. Krause, Office of the United States Attorney, Los

Angeles, California, for the respondent-appellee. 

OPINION

HAWKINS, Circuit Judge: 

We must decide whether, under the Treaty Clause of the

Constitution, the United States may enter into a “treaty” with

a non-sovereign entity, such as Hong Kong. We conclude that

such a treaty is constitutional, and therefore uphold the validity of the “Agreement Between the Government of the United

States of America and the Government of Hong Kong for the

Surrender of Fugitive Offenders” (“Extradition Agreement”).

We also hold that a magistrate judge has jurisdiction under the

8646 WANG v. MASAITIS
Federal Magistrates Act to issue a Report and Recommendation (“R & R”) regarding a habeas petition without the defendant’s explicit consent. 

I. BACKGROUND

In 2003, Hong Kong Magistrate Bina Chainrai issued a

warrant authorizing Michael Wang’s arrest. The warrant listed

eighteen counts of theft (adding up to $15,834,000 in Hong

Kong currency) and two counts of dealing with property

known or believed to represent proceeds of an indictable

offense. After the Hong Kong Department of Justice formally

requested Wang’s surrender pursuant to the Extradition

Agreement, the United States filed a request to extradite him.

United States Magistrate Judge Rosalyn M. Chapman held a

hearing, found that all of the requirements for the extradition

had been met, and issued an order certifying Wang’s

extraditability. 

Wang filed a habeas petition challenging the extradition

order, contending (1) that the court lacked subject matter

jurisdiction to certify extradition because the Extradition

Agreement between the United States and Hong Kong is not

a proper “treaty” under the Constitution, and (2) that no probable cause supports certain charges against him. Wang’s

habeas petition was heard by Magistrate Judge Chapman, who

issued a R & R to District Judge Christina A. Snyder.

Although Wang did not explicitly consent to Magistrate Judge

Chapman’s review of his habeas petition, Wang made no

objection to her appointment. Judge Snyder conducted a de

novo review of the R & R, approved and adopted the R & R,

and entered an order denying the petition for habeas corpus.

II. DISCUSSION

On July 1, 1997, the United Kingdom returned sovereignty

over Hong Kong to China. See 22 U.S.C. § 5701. The Hong

Kong Special Administrative Region (“HKSAR”) of China

WANG v. MASAITIS 8647
was set up “to enjoy a high degree of autonomy on all matters

other than defense and foreign affairs.” Id. The transfer of

sovereignty implemented a “one country, two systems” policy, “under which Hong Kong will retain its current lifestyle

and legal, social, and economic systems until at least the year

2047.” Id. 

From 1977 to June 30, 1997, extradition relations between

the United States and Hong Kong were governed by an extradition treaty between the United States and the United Kingdom. In light of the transfer of sovereignty over Hong Kong

from the United Kingdom to China, the United States and

Hong Kong concluded the Extradition Agreement, for which

President Clinton requested the Senate’s advice and consent

to ratify “as a treaty.” China had already approved Hong

Kong entering into the agreement. The Senate subsequently

ratified the Extradition Agreement. See 143 Cong. Rec.

S 11165 (Oct. 23, 1997).1

A. Political Question

The government argues that the constitutionality of the

Extradition Agreement is a nonjusticiable political question,

framing the issue as whether Hong Kong is a “sufficiently

sovereign foreign power for the purpose of entering into a

treaty.” However, this court need not decide the status of

Hong Kong’s sovereignty. Rather, the constitutional issue that

Wang has raised is whether the term “treaty” in the Treaty

Clause encompasses agreements with non-sovereigns, such as

Hong Kong — and that question is clearly justiciable under

Baker v. Carr, 369 U.S. 186, 217 (1962). 

The Second Circuit’s separation of justiciable and nonjusticiable issues regarding the Hong Kong Extradition Agreement

is instructive: 

1The Department of State listed the Extradition Agreement in “Treaties

in Force, A List of Treaties and Other International Agreements of the

United States in Force on January 1, 2004.” 

8648 WANG v. MASAITIS
Federal courts lack the authority and institutional

competence to make the political judgments

involved in ascertaining the legitimacy of foreign

systems. Thus, in this case, it is not for the courts to

decide whether the HKSAR government is a legitimate government. Instead, our role is limited to

answering the prior definitional question: what does

the term “foreign government” in the extradition

statute mean? More precisely, the question we must

answer is whether the government of a subsovereign

constitutes a “foreign government” or the government of a “foreign country” for purposes of [18

U.S.C.] § 3184. Put another way, for most purposes

of United States foreign relations, the HKSAR government is the government of Hong Kong because it

has been recognized as such by the Executive, but it

is a “foreign government” within the meaning of the

extradition statute only if the judiciary interprets that

term to encompass subsovereigns. 

Cheung v. United States, 213 F.3d 82, 89 (2d Cir. 2000) (citing Baker v. Carr, 369 U.S. at 212). Though we answer a

slightly different definitional question — whether the President may enter into a treaty with a non-sovereign under the

Treaty Clause — the principle is the same, relying on Baker’s

distinction between discerning a nation’s sovereignty (a political question) and interpreting the impact of that status on the

law (a judicial one): 

While recognition of foreign governments . . .

strongly defies judicial treatment . . . and the judiciary ordinarily follows the executive as to which

nation has sovereignty over disputed territory, once

sovereignty over an area is politically determined

and declared, courts may examine the resulting status and decide independently whether a statute

applies to that area. 

WANG v. MASAITIS 8649
369 U.S. at 212 (footnote omitted). China’s sovereignty over

Hong Kong (and by corollary Hong Kong’s subsovereign status) has been resolved by the executive branch, and we do not

question that judgment. However, this court may examine the

resulting status of Hong Kong, and decide whether the Treaty

Clause applies to Hong Kong as a constitutionally cognizable

treaty party. 

Baker’s six factors to determine whether an issue is a nonjusticiable political question supports finding justiciability

here:

Prominent on the surface of any case held to involve

a political question is found [1] a textually demonstrable constitutional commitment of the issue to a

coordinate political department; or [2] a lack of judicially discoverable and manageable standards for

resolving it; or [3] the impossibility of deciding

without an initial policy determination of a kind

clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution

without expressing lack of the respect due coordinate

branches of government; or [5] an unusual need for

unquestioning adherence to a political decision

already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various

departments on one question. 

Id. at 217. “Unless one of these formulations is inextricable

from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.” Id.

(emphasis added). 

[1] Justice Powell distilled the Baker test into three inquiries: “(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch

of Government? (ii) Would resolution of the question demand

that a court move beyond areas of judicial expertise? (iii) Do

8650 WANG v. MASAITIS
prudential considerations counsel against judicial intervention?” Goldwater v. Carter, 444 U.S. 996 (1979) (Powell, J.,

concurring). In applying the Baker/Goldwater factors, it is

important to note that “it is error to suppose that every case

or controversy which touches foreign relations lies beyond

judicial cognizance,” Baker, 369 U.S. at 211, and that “not

every matter touching on politics is a political question.”

Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S.

221, 229 (1986) (citing Baker, 369 U.S. at 209). 

1. No Textually Demonstrable Commitment

[2] The issue here is whether the term “treaty” in the Treaty

Clause encompasses agreements with non-sovereigns. On this

issue of constitutional interpretation, there is no “textually

demonstrable constitutional commitment of the issue to a

coordinate political department,” Baker, 369 U.S. at 217, i.e.

to the President. Rather, the text is silent, and the dissent concedes as much. (See Dissent at 8661-62.) 

2. No Lack of Judicially Discoverable and Manageable

Standards; No Requirement for an Initial Policy

Determination 

[3] The second Goldwater factor lumps together the second

and third Baker inquiries — whether there is “a lack of judicially discoverable and manageable standards” and whether a

decision is impossible “without an initial policy determination

of a kind clearly for nonjudicial discretion.” See Goldwater,

444 U.S. at 999 (Powell, J., concurring). Nowhere do we

make an explicit or implicit policy determination that an

extradition agreement, or foreign relations generally, with

Hong Kong is a good or bad thing. The neutral analysis of the

Indian treaty line of cases to fill in the silence of the Treaty

Clause utilizes regular means of constitutional interpretation.

“Resolution of the question may not be easy, but it only

requires us to apply normal principles of interpretation to the

constitutional provisions at issue.” Cf. id. The dissent’s disWANG v. MASAITIS 8651
agreement with the Indian treaty analogy does not make the

analysis judicially unmanageable or policy-oriented. 

3. Prudential Considerations

[4] The remaining Baker inquires may be seen as prudential

considerations, the third of the Goldwater inquiries. The dissent is concerned that addressing the requirements of the

Treaty Clause would risk the nation’s ability to speak with

one voice in the field of foreign affairs with Hong Kong. (Dissent at 8669.) Though a valid concern, it is overstated. Even

if the court were to find that the Treaty Clause did not encompass agreements with non-sovereigns, the President could still

enter into an executive agreement, or pass legislation with

both houses of Congress, that would establish identical extradition obligations (and other treaty obligations) between the

United States and Hong Kong. 

[5] The court is “cognizant of the interplay” between the

interpretation of the Treaty Clause and the conduct of this

Nation’s foreign affairs, but one of the judiciary’s characteristic roles is to interpret the Constitution, and “we cannot shirk

this responsibility merely because our decision may have significant political overtones.” Cf. Japan Whaling, 478 U.S. at

230 (addressing whether two statutes required the Secretary of

Commerce to act contrary to an executive agreement, despite

contention of “embarrassment from multifarious pronouncements by various departments”). Thus, we conclude that the

issue presented is justiciable. 

B. The United States May Enter Into a Treaty with a NonSovereign 

We review whether a constitutionally valid extradition

treaty exists de novo. In the Matter of Then v. Melendez, 92

F.3d 851, 853 (9th Cir. 1996). 

8652 WANG v. MASAITIS
1. The Text, Framer’s Intent, and the Indian Treaties 

[6] The text of the Treaty Clause of the United States Constitution2

 and the extradition statute3 are silent as to the definition of the term “treaty.” “The power to make treaties is given

by the Constitution in general terms, without any description

of the objects intended to be embraced by it. . . .” Holmes v.

Jennison, 39 U.S. 540, 569 (1840). Treaties enacted pursuant

to Article II receive a presumption of constitutionality. See In

re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d

1301, 1309 (9th Cir. 1982). 

[7] Wang argues that the United States cannot constitutionally enter into a “treaty” with a non-sovereign such as Hong

Kong. However, there is no credible source that supports the

proposition that the Treaty Clause permits only a treaty with

a sovereign nation. Indeed, it would be difficult for the

Founders to have this thought at the drafting of the Constitution, since, as Wang concedes, non-sovereign entities “were

not prevalent in 1787.” 

The Second Circuit has upheld the constitutionality of the

Hong Kong Extradition Agreement.4See Cheung, 213 F.3d

82. The reasoning of the Second Circuit is persuasive:

Although the term “treaty” is commonly understood

in modern usage as a “contract[ ] between independent nations,” the term was not necessarily so lim2The Treaty Clause states that the President “shall have Power, by and

with the Advice and Consent of the Senate, to make Treaties, provided

two thirds of the Senators present concur.” U.S. Const. Art. II, § 2, Cl. 2.

3

18 U.S.C. § 3184 authorizes extradition of fugitives from foreign countries “[w]henever there is a treaty or convention for extradition between

the United States and any foreign government.” 

4Ninth Circuit, Tenth Circuit, and Fourth Circuit district courts have

also upheld this treaty. In Re Coe, 261 F. Supp. 2d 1203 (C.D. Cal. 2003);

In the matter of Seong-I, 346 F. Supp. 2d 1149 (D. N.M. 2004); United

States v. Sai-Wah, 270 F. Supp. 2d 748 (W.D. N.C. 2003). 

WANG v. MASAITIS 8653
ited in the mid-19th century (or now) when the

federal extradition statute was enacted. It is true that

at the time Congress passed the act, the United States

had ratified only two extradition treaties, both with

sovereign nations — France and England. However,

the United States had also ratified hundreds of treaties with Indian tribes or nations. From the first years

of our constitutional republic, the Indian treaties

have enjoyed a status “on a par with foreign treaties.” This has been the case even though Indian

treaty partners have been described as “domestic

dependent nations” insofar as they had ceded powers

generally associated with sovereignty, including the

right freely to carry out foreign relations and trade.

Thus, it is clear that the term “treaty” had a meaning broader than an agreement between fully sovereign or independent entities. 

Cheung, 213 F.3d at 89-90 (citations omitted). 

[8] The Supreme Court’s treatment of United States treaties

with Indian nations, despite an evolving debate about their

sovereignty status,5 as constitutionally valid, see, e.g., United

States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196

(1876),6 Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 204 (1999),7 strongly suggests that the Treaty

5As the Supreme Court described in United States v. Lara, 124 S. Ct.

1628, 1634-35 (2004), Congress has “authorized at different times very

different Indian policies;” “[s]uch major policy changes inevitably involve

major changes in the metes and bounds of tribal sovereignty.” 

6

“From the commencement of its existence, the United States has negotiated with the Indians in their tribal condition as nations, dependent, it is

true, but still capable of making treaties.” 

7

In discussing an 1837 treaty with the Chippewa Indians, the Court

stated: 

Indian treaty rights can coexist with state management of natural

resources. Although States have important interests in regulating

8654 WANG v. MASAITIS
Clause does not preclude the United States from entering into

treaties with non-sovereigns. 

2. The Significance of 25 U.S.C. § 71

Wang also argues that the 1871 implementation of 25

U.S.C. § 71,8 which prohibits future contracts “by treaty” with

Indian nations (without invalidating or impairing prior treaties), demonstrates that the Congress and President interpreted

the term “treaty” only as an inter-sovereign agreement. Thus,

Wang argues that Cheung incorrectly concluded that the

United States may enter into a treaty with a non-sovereign “by

mistakenly assuming that pre-1871 Indian tribes were nonsovereign entities.” 

[9] First, it is a stretch to argue that based on United States

relations with Indian nations via an 1871 statute, without any

interpretation of the Treaty Clause, the term “treaty” should

be constitutionally defined solely as between two sovereigns.9

Whatever the Congress and the President may have believed

in 1871 about treaties and sovereignty, it is well-established

that it is the judicial branch that is endowed with the duty of

wildlife and natural resources within their borders, this authority

is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such

as treaty making. U.S. Const., Art. VI, cl. 2. 

(citing, as an example, Forty-Three Gallons of Whiskey, 93 U.S. 188). 

8

25 U.S.C. § 71 states, in relevant part: “No Indian nation or tribe

within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United

States may contract by treaty; but no obligation of any treaty lawfully

made and ratified with any such Indian nation or tribe prior to March 3,

1871, shall be hereby invalidated or impaired.” 

9

It is worth noting that the 1871 passage of 25 U.S.C. § 71 had as much

to do with the irritation of the House of Representatives with being left out

from the regulation of Indian affairs as it had to do with Indian sovereignty. See Blake v. Arnett, 663 F.2d 906, 910 (9th Cir. 1981) (describing

1871 Act “at least in part the result of political infighting in Congress.”).

WANG v. MASAITIS 8655
constitutional interpretation. Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803) (“It is emphatically the province and

duty of the judicial department to say what the law is.”). And,

to date, there is no Supreme Court precedent specifically

holding that a treaty between a sovereign and non-sovereign

is unconstitutional. 

Second, as Cheung points out, pre-1871 decisions did refer

to Indian nations as non-sovereign, or at least as less than

fully sovereign. See, e.g., Cherokee Nation v. Georgia, 30

U.S. 1, 17-18 (1831);10 see also Johnson v. M’Intosh, 21 U.S.

10The Supreme Court recounted the status of Indian tribes: 

[Indian tribes] are considered as within the jurisdictional limits of

the United States, subject to many of those restraints which are

imposed upon our own citizens. They acknowledge themselves in

their treaties to be under the protection of the United States; they

admit that the United States shall have the sole and exclusive

right of regulating the trade with them, and managing all their

affairs as they think proper . . . . Treaties were made with some

tribes by the state of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to

that state, taking back a limited grant to themselves, in which

they admit their dependence. 

Though the Indians are acknowledged to have an unquestionable,

and, heretofore, unquestioned right to the lands they occupy, until

that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which

reside within the acknowledged boundaries of the United States

can, with strict accuracy, be denominated foreign nations. They

may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title

independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are

in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. 

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and

address the president as their great father. They and their country

are considered by foreign nations, as well as by ourselves, as

8656 WANG v. MASAITIS
543, 574 (1823) (Indian “rights to complete sovereignty, as

independent nations, were necessarily diminished”); but see

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832)

(describing Indian nations as “distinct, independent political

communities, retaining their original natural rights, as the

undisputed possessors of the soil”). 

[10] Thus, the United States’ history of treaties with nonsovereign Indian nations fills in the silence of the Treaty

Clause and the extradition statute with respect to the term

“treaty”: it is constitutional for the United States to enter into

a treaty with a non-sovereign, such as Hong Kong. 

C. Appointment of Same Magistrate Judge to Handle

Extradition Certification and Habeas Challenge Was

Proper

[11] We review the “scope of authority and powers of a

magistrate judge” de novo. United States v. Sanchez-Sanchez,

333 F.3d 1065, 1068 (9th Cir. 2003). The jurisdiction and

powers of magistrate judges are enumerated in 28 U.S.C.

§ 636 of the Federal Magistrates Act. Section 636(b)(1)(A)

allows a district judge to designate a magistrate to hear and

determine any pretrial matter, except eight types of motions

(none of which pertain to Wang’s case). Section 636(b)(1)(B)

permits a district judge to designate a magistrate to conduct

hearings and submit proposed findings of fact and recommendations for the disposition of (1) any motion excepted in

§ 636(b)(1)(A), (2) applications for posttrial relief made by

individuals convicted of criminal offenses, and (3) prisoner

petitions challenging conditions of confinement. Finally, there

being so completely under the sovereignty and dominion of the

United States, that any attempt to acquire their lands, or to form

a political connexion with them, would be considered by all as an

invasion of our territory, and an act of hostility. 

30 U.S. at 17-18 (emphasis added). 

WANG v. MASAITIS 8657
is a catch-all provision, § 636(b)(3), which permits a district

court judge to assign the magistrate any additional duties not

inconsistent with the Constitution and the laws of the United

States. 

The United States District Court for the Central District of

California issued General Order 01-13, which fills in specific

additional duties assigned to magistrate judges. Federal

habeas corpus petitions and extradition proceedings are

among the types of cases assigned to magistrates. The Order

explains that once a case is randomly assigned to a magistrate

judge for a report and recommendation (as Magistrate Judge

Chapman was assigned to Wang’s extradition proceeding), all

subsequent habeas corpus cases filed by the same party shall

be assigned to the same magistrate judge. Thus, under General Order 01-13, Magistrate Judge Chapman was well within

her authority to issue a R & R for Wang’s habeas petition.

The issue presented here is whether, in this scenario, the magistrate judge exceeded the authority granted under § 636(b)(3)

— the catch-all provision.11

[12] Wang argues that Magistrate Judge Chapman lacked

jurisdiction under § 636 to submit a R & R because he did not

explicitly consent to his habeas petition being handled by a

magistrate. Under United States v. Gomez-Lepe, 207 F.3d

623, 628-29 (9th Cir. 2000), consent is the most important

factor in determining what the catch-all provision encompasses, when the matter at issue is a “critical stage” of the

proceedings (as opposed to a “subsidiary” one). Gomez-Lepe

goes on to explain that “where discretion is exercised, the

scope of [the] magistrate judge’s authority is construed more

narrowly.” Id. at 629. For example, duties that require a “final

and independent determination of fact or law” would necessitate consent. Id. 

11As the government concedes, § 636 does not explicitly provide for the

preparation of a R & R regarding a habeas petition challenging an extradition order. Therefore, the magistrate judge’s jurisdiction, if any, must lie

in the catch-all provision § 636(b)(3). 

8658 WANG v. MASAITIS
[13] Here, the magistrate judge’s R & R was not a final and

independent determination of fact or law, as the district judge

reviewed the habeas petition de novo. Thus, the issuance of

the report was not a “critical stage” of the proceedings. 

[14] United States v. Rivera-Guerrero, 377 F.3d 1064 (9th

Cir. 2004), makes clear that Magistrate Judge Chapman did

not exceed her authority in issuing the R & R. In RiveraGuerrero, the district court had erred in delegating to the

magistrate judge a final determination regarding involuntary

medication.12 We acknowledged that the issue of involuntary

medication is of “clear constitutional importance” and

“[a]llowing a magistrate judge to make the ultimate decision

in a matter of such clear constitutional import would raise

serious Article III concerns.” Id. at 1070. However, the court

found “no statutory or constitutional concerns raised by

allowing the magistrate judge to submit proposed findings and

recommendations on the involuntary medication determination to the district court for de novo review.” Id. The court

went even further, making a broad statement about delegations to magistrates involving de novo review by the district

judge: 

Raddatz makes clear that the delegation to magistrate judges of matters that implicate constitutional

rights for proposed findings and recommendations is

constitutional so long as the findings and recommendations are subject to de novo review by an Article

III judge. 

Id. (citing United States v. Raddatz, 447 U.S. 667, 683

(1980)). 

[15] There is no reason to question the de novo review

12The Rivera-Guerrero court analyzed the issue both as a duty under

§ 636(b)(1)(B) and § 636(b)(3), id. at 1070, so the decision’s reasoning

applies here. 

WANG v. MASAITIS 8659
done by Judge Snyder here. The Order adopting the R & R

states that “the Court reviewed the Petition and other papers

along with the attached Report and Recommendation . . . as

well as petitioner’s objections and respondent’s response to

petitioner’s objections, and has made a de novo determination.” Considering this de novo review, there was no violation

of the Federal Magistrates Act or a deprivation of review by

an Article III judge.13

CONCLUSION

For all of the foregoing reasons, the extradition of Wang is

constitutional, and the issuance of the R & R by Magistrate

Judge Chapman comported with the Federal Magistrates Act.

AFFIRMED.

FERGUSON, Circuit Judge, dissenting: 

Not every constitutional question requires judicial scrutiny

or resolution. While the judiciary has the power to address

questions concerning the content of treaties, see Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534-35 (1991), the question

of whether the President may enter into treaties with nonsovereigns is left to the politically accountable branches of

government. The majority announces a flawed and unnecessary constitutional ruling on this issue. Because we should

dismiss Wang’s appeal for lack of justiciability, I must dissent.

13Of course, de novo review of a R & R is only required when an objection is made to the R & R, United States v. Reyna-Tapia, 328 F.3d 1114,

1121 (9th Cir. 2003) (en banc) (“Neither the Constitution nor the [Federal

Magistrates Act] requires a district judge to review, de novo, findings and

recommendations that the parties themselves accept as correct”), as Wang

objected in this case. 

8660 WANG v. MASAITIS
I.

The majority rules that whether the President has the constitutional authority to enter into treaties with non-sovereigns,

like Hong Kong, is a clear justiciable question under Baker v.

Carr, 369 U.S. 186, 217 (1962). Instead of “discerning a

nation’s sovereignty (a political question),” the majority states

that we are only “examin[ing] the resulting status of Hong

Kong” and “decid[ing] whether the Treaty Clause applies to

Hong Kong as a constitutionally cognizable treaty party.”

Maj. op. at 8650. What constitutes a “constitutionally cognizable treaty party,” however, is a question of foreign policy

that the judiciary cannot address. In fact, all of the Baker factors support dismissing Wang’s appeal and leaving resolution

of this question to the political process.

A.

First, mindful of the fact that not “every case or controversy which touches foreign relations lies beyond judicial

cognizance,” Baker, 369 U.S. at 211, the question of whether

Hong Kong is a constitutionally cognizable treaty partner is

committed to the political branches because it is inextricably

linked to the President’s broad authority in the field of foreign

relations. 

The majority narrowly reframes the issue for purposes of

the first Baker test, as whether the term “treaty” in the Treaty

Clause encompasses agreements with non-sovereigns. Maj.

op. at 8651. But the real issue here is not as simple as the

majority would have us view it. While it is undisputed that the

judiciary has the power to interpret the language of the Constitution, including the Treaty Clause, see Cooper v. Aaron,

358 U.S. 1, 18 (1958) (per curiam) (“the federal judiciary is

supreme in the exposition of the law of the Constitution, and

that principle has ever since [Marbury v. Madison] been

respected by this Court and the Country as a permanent and

indispensable feature of our constitutional system[ ]”), not

WANG v. MASAITIS 8661
every constitutional question requires judicial interpretation.

See Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105

(1944) (“If there is one doctrine more deeply rooted than any

other in the process of constitutional adjudication, it is that we

ought not to pass on questions of constitutionality . . . unless

such adjudication is unavoidable.”). In its most basic form,

the real question before us is whether it is the role of the judiciary or the political branches to decide what constitutes a

treaty partner. The Constitution commits the latter to answer

this question. 

As Chief Executive, U.S. Const. art. II, § 1, cl. 1, and Commander in Chief, U.S. Const. art. II, § 2, cl. 1, the President

is “the guiding organ in the conduct of our [nation’s] foreign

affairs.” Ludecke v. Watkins, 335 U.S. 160, 173 (1948); see

United States v. Pink, 315 U.S. 203, 229 (1942) (“[T]he President . . . is the ‘sole organ of the federal government in the

field of international relations.’ ”) (citation omitted). In addition to granting the President the power to make treaties with

the advice and consent of the Senate, U.S. Const. art. II, § 2,

cl. 2, the same clause of the Constitution confers upon the

President the sole power to “appoint Ambassadors, other public Ministers, and Consuls,” while a subsequent section vests

the President with the authority “to receive Ambassadors and

other public Ministers.” U.S. Const. art. II, § 3. The President’s further authority to recognize foreign powers logically

derives from his ample constitutional authority in the realm of

foreign affairs. See Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398, 410 (1964) (“Political recognition is exclusively a function of the Executive.”); Pink, 315 U.S. at 229

(“Objections to the underlying policy as well as objections to

recognition are to be addressed to the political department and

not to the courts.”); United States v. Sandoval, 231 U.S. 28,

45-46 (1913) (recognition of Indian tribes is also left to the

political branches). 

Here, the President, acting within his grant of constitutional

authority, engaged in diplomatic relations with Hong Kong

8662 WANG v. MASAITIS
while under British and now Chinese rule. On the basis of this

preexisting relationship, the President considered Hong Kong

a foreign power—sovereign or non-sovereign—with which

the United States could cooperate and reach various agreements, including an extradition agreement. To effectuate his

interest in establishing an extradition policy with Hong Kong,

the President entered into the Hong Kong Extradition Agreement (HKEA) with the Senate’s approval pursuant to the

President’s constitutionally committed power to “make Treaties, provided two thirds of the Senators present concur.” U.S.

Const. art. II, § 2, cl. 2. The HKEA is, therefore, a Senateapproved treaty that represents the President’s ongoing interest in maintaining foreign relations with Hong Kong. 

It is not the role of the courts to question whether the President properly exercised his political power by entering into a

treaty with Hong Kong in the process of conducting foreign

affairs. See Harisiades v. Shaughnessy, 342 U.S. 580, 589

(1952) (explaining that “the conduct of foreign relations . . .

[is] so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or

interference”) (footnote omitted); United States v. Belmont,

301 U.S. 324, 328 (1937) (stating that “the conduct of foreign

relations was committed by the Constitution to the political

departments of the government, and the propriety of what

may be done in the exercise of this political power [is] not

subject to judicial inquiry or decision”) (referring to Oetjen v.

Central Leather Co., 246 U.S. 297, 311 (1918)). By virtue of

wielding the power to make treaties, appoint ambassadors,

and recognize foreign governments, all part of the President’s

extensive power to conduct foreign relations, the President is

necessarily entrusted by the structure of the Constitution with

the power to determine who makes a proper treaty partner.

See Alperin v. Vatican Bank, No. 03-15208, slip op. 6643,

6671 (9th Cir. June 9, 2005) (citing Nixon v. United States,

506 U.S. 224, 240-41 (1993) (White, J., concurring)) (“ ‘The

courts . . . are usually left to infer the presence of a political

question from the text and structure of the Constitution.’ ”);

WANG v. MASAITIS 8663
Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1511

(D.C. Cir. 1984) (en banc) (“The first [Baker test] requires the

court to determine whether the text of the Constitution implicitly or explicitly commits the stated claim to the political

branches.”). 

Moreover, given the President’s broad textual grants of

authority in conducting the nation’s foreign affairs, the

Supreme Court has reasonably invoked the political question

doctrine distinctly in the area of foreign affairs. See Oetjen,

246 U.S. at 302. In particular, with regard to treaties, the

Supreme Court has held that it is a political question whether

a treaty survives when one country becomes part of another.

Terlinden v. Ames, 184 U.S. 270 (1902). A plurality of the

Supreme Court has also stated that whether the President may

unilaterally terminate a treaty is by its nature a political question. Goldwater v. Carter, 444 U.S. 996 (1979). Most applicable here, one of our sister circuits has held specifically that the

question of what constitutes a treaty requiring Senate ratification is a political question, Made in the USA Found. v. United

States, 242 F.3d 1300, 1302 (11th Cir. 2001), cert. denied,

534 U.S. 1039 (2001), while another has persuasively

explained that the making of international agreements is textually committed to the political branches:

While the treaty power of the Executive expressly

involves the participation of the Legislature,

nowhere does the Constitution contemplate the participation by the third, non-political branch, that is

the Judiciary, in any fashion in the making of international agreements or the recognition of foreign

governments. . . . [T]his is one of those areas of foreign relations textually committed to the political

branches to the exclusion of the Judiciary. 

Antolok v. United States, 873 F.2d 369, 381 (D.C. Cir. 1989)

(emphasis added). 

8664 WANG v. MASAITIS
Although the Constitution does not spell out a pronounced

textual limit on the authority granted to the President to make

treaties under Article II, it is clear, from both its text and

structure, that the Constitution grants the President expansive

power in the area of foreign affairs. The power to make treaties, with the advice and consent of the Senate, necessarily

implies in the President the power to choose the nation’s

treaty partners — sovereign or non-sovereign. By intervening

in this case, the majority forgets that we must defer to the

political branches in political questions even where we think,

as the majority does here, that we can provide a basis for

sanctioning the President’s contested action. See id. at 383

(explaining that “it is against that very invasion that the political question doctrine protects the political realm from judicial

invasion”).

B.

Second, the courts lack judicially manageable standards to

determine what constitutes a constitutionally cognizable treaty

partner under the Treaty Clause. As in Goldwater and Made

in the USA Found., the crux of the challenge in the present

case is not centered on the treaty’s substantive provisions, but

rather on what it means to adopt a treaty. In Goldwater, for

example, the Supreme Court addressed the abrogation of a

treaty, a plurality of the Court holding that the question of

whether the President could unilaterally terminate a treaty is

governed by political standards. 444 U.S. 996. In Made in the

USA Found., the Eleventh Circuit addressed the proper procedures for enacting a treaty, concluding that whether the Senate

needs to ratify the North American Free Trade Agreement

(NAFTA) is a political question. 242 F.3d 1300. Here, we are

being asked to address with which foreign governments the

President may enter into a treaty. The Constitution is silent

with regard to how we address any of these questions. 

Such decisions require that we consider areas beyond our

judicial expertise. Indeed, in Made in the USA Found., the

WANG v. MASAITIS 8665
Eleventh Circuit held that it lacked the legal tools to decide

what constitutes a treaty requiring Senate ratification in part

because “the Treaty Clause [ ] fails to outline the circumstances, if any, under which its procedures must be adhered

to when approving international agreements.” 242 F.3d at

1315. Ninth Circuit Judge Betty B. Fletcher, sitting by designation, cited Goldwater distinctly as supporting authority:

there, “the Supreme Court declined to act because the . . .

Treaty Clause fails to outline the Senate’s role in the abrogation of treaties.” Made in the USA Found., 242 F.3d at 1315.

Here, too, the Treaty Clause fails to outline the foreign governments with which the President may properly enter into a

treaty. See Holmes v. Jennison, 39 U.S. 540, 569 (1840)

(explaining that “[t]he power to make treaties is given by the

Constitution in general terms, without any description of the

objects intended to be embraced by it”). In other words, there

exists no “identifiable textual limit” in the Constitution on the

President’s authority to make treaties with sovereigns or nonsovereigns. Made in the USA Found., 242 F.3d at 1315. 

Not surprisingly, because the Constitution does not speak

to this issue, the majority relies upon a “neutral analysis of the

Indian treaty line of cases,” Maj. op. at 8651, to infer that the

President may enter into treaties with non-sovereigns. The

majority’s position, like the Second Circuit’s position in

Cheung v. United States, 213 F.3d 82 (2d Cir. 2000), presupposes that Indian tribes were considered non-sovereign at the

time the President entered into treaties with them. Id. at 90

(finding that “it is clear that the term ‘treaty’ had a meaning

broader than an agreement between fully sovereign or independent entities”). The Indian treaty line of cases, however,

is not conclusive; in fact, those cases cast serious doubt on

whether the President in the past recognized Indian tribes as

sovereign or non-sovereign. 

The majority explains that in Cherokee Nation v. Georgia,

for example, the Supreme Court described Indian nations as

“domestic dependent nations,” suggesting their non-sovereign

8666 WANG v. MASAITIS
status. 30 U.S. 1, 17 (1831). In the same case, however, the

Court underscored the unique relationship between Indian

nations and the United States:

The condition of the Indians in relation to the United

States is perhaps unlike that of any other two people

in existence. In general, nations not owing a common allegiance are foreign to each other. The term

foreign nation is, with strict propriety, applicable by

either to the other. But the relation of the Indians to

the United States is marked by peculiar and cardinal

distinctions which exist no where else. . . . [T]hey

are considered as within the jurisdictional limits of

the United States, subject to many of those restraints

which are imposed upon our own citizens. 

Id. at 16-17 (1831). In Worcester v. Georgia, the Supreme

Court elaborated on the issue, describing Indian nations as

“distinct, independent political communities, retaining their

original natural rights, as the undisputed possessors of the

soil,” to which the United States has applied “[t]he words

‘treaty’ and ‘nation’ ” as it has to “other nations of the earth.”

31 U.S. 515, 559-60 (1832) (stating that “[t]he constitution

. . . adopted and sanctioned the previous treaties with the

Indian nations, and consequently admit[ted] their rank among

those powers who are capable of making treaties”). Thus,

Indian nations may well have been considered sovereign,

instead of non-sovereign, when the President entered into

treaties with them. 

The fact that Congress passed 25 U.S.C. § 71, which prohibited treaties with Indian tribes after 1871, furthers this

argument. There, the statute reads, in relevant part: 

No Indian nation or tribe within the territory of the

United States shall be acknowledged or recognized

as an independent nation, tribe, or power with whom

the United States may contract by treaty; but no obliWANG v. MASAITIS 8667
gation of any treaty lawfully made and ratified with

any such Indian nation or tribe prior to March 3,

1871, shall be hereby invalidated or impaired. 

25 U.S.C. § 71 (emphases added). Wang contends that this

language suggests congressional intent to strip Indian tribes of

their sovereign status and affirm the inter-sovereign nature of

treaties. Yet the statute could also be read as proof that Indian

tribes were never recognized as sovereign nations, but rather

as dependent nations. 

While it is unclear whether Indian tribes were sovereign or

non-sovereign at the time the President entered into treaties

with them, what is clear is that Indian nations are historically

distinct. To compare United States-Indian treaties to the

HKEA, therefore, is neither reasonable nor rational and fails

to “fill[ ] in the silence of the Treaty Clause and the extradition statute with respect to the term ‘treaty.’ ” Maj. op. at

8657; see Alperin, slip op. at 6677 (explaining that courts

must be able “to reach a ruling that is ‘principled, rational,

and based upon reasoned distinctions’ ”) (citation omitted).

Accordingly, the question of whether the President may enter

into treaties with non-sovereigns is not amenable to judicial

scrutiny and better left to the political branches to resolve. 

C.

Last, prudential considerations militate against reaching the

merits of Wang’s appeal. The Supreme Court clearly stated in

Baker that it is crucial that the nation speaks with one voice

in the field of foreign affairs. 369 U.S. at 211 (“[M]any such

questions [touching on foreign relations] uniquely demand

single-voiced statement [sic] of the Government’s views.”)

(footnote omitted); see Alperin, slip op. at 6687 (explaining

that it is not the court’s place to “make pronouncements on

foreign policy”). Here, the majority, while upholding the

President’s decision to enter into a treaty with a nonsovereign, expresses a lack of respect for the President’s han8668 WANG v. MASAITIS
dling of foreign relations by questioning the propriety of the

President’s action. In fact, it provides unwarranted legitimacy

to the President’s action when such intervention is reasonably

avoidable. See Spector Motor Serv., 323 U.S. at 105 (1944)

(explaining that “we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable”). 

The majority contends that this one-voice concern is “overstated” because, even if the court had reached the opposite

result, the President would still have the power to enter into

an executive agreement or pass legislation with both houses

of Congress. Maj. op. at 8652. While I accept that the President may use alternative measures to reach an extradition

agreement with Hong Kong, I submit that there is no reason

to question the President’s decision when both the State

Department and the Senate have sanctioned the present

action. Cf. Alperin, slip op. at 6688 (explaining that the

court’s involvement in a case in which the State Department

has articulated a view on the matter would inevitably show a

lack of respect for how the Executive Branch deals with foreign relations); Made in the USA Found., 242 F.3d at 1319

(finding that the Senate’s acquiescence in the procedures used

to approve NAFTA counseled against judicial intervention in

the case); Goldwater, 444 U.S. at 996 (Powell, J., concurring)

(stating that “[t]he Judicial Branch should not decide issues

affecting the allocation of power between the President and

Congress until the political branches reach a constitutional

impasse”). Thus, the issue presented is not justiciable. 

II.

The question of whether the President has the constitutional

authority to enter into treaties with non-sovereigns, like Hong

Kong, is by its nature political and, thereby, non-justiciable.

The Baker tests inform us, in fact, that the resolution of the

issue is inextricably linked to the President’s broad authority

in the field of foreign relations; that the judiciary lacks the

legal tools to resolve the issue in a principled manner; and

WANG v. MASAITIS 8669
that prudential considerations weigh against our involvement

in the case. The majority today, as a result, announces an

unnecessary constitutional ruling that has the effect of seriously threatening the strength of the political question doctrine. For these reasons, I must dissent. 

8670 WANG v. MASAITIS