Rethinking Treaty Interpretation

How should the Judiciary structure its reasoning in determining the amount of deference it gives to executive-branch treaty interpretations? This question is evermore crucial as international agreements, notably those related to the "war on terror, " increasingly impact substantive areas that have been historically considered solely domestic. This Article normatively assesses and ultimately rejects established and recent scholarly approaches to treaty-interpretation deference. For nearly half a century, courts have relied on a demonstratively unprincipled and impracticable doctrine of giving executive interpretations "great weight. " Contemporary scholarly attempts to formulate more disciplined approaches to deference have applied the administrative law doctrine of Chevron-style deference and its two-step inquiry of "ambiguity" and "reasonableness, " resulting in the theoretical and doctrinal triumph of a system of "fixed-point" deference. This Article argues that the particularities of treaty formation and enforcement, especially their hybrid political-legal features, demand a more flexible account of deference than has been delineated thus far. The currently in vogue fixed-point theories of deference should cede to a system that produces variable deference levels while maximizing each Branch's institutional strengths. I. Introduction How should the Judiciary structure its reasoning in determining appropriate deference to executive-branch treaty interpretations? This is a crucial question for the rule of law in U.S. foreign relations, for constitutional law, and for the creation of a calibrated approach to gauging and balancing principles of separation of powers. The current doctrine is obtuse. The guiding principle is that the Judiciary should give "great weight" to views of the Executive. No one knows what this standard means, and the Judiciary has expended little effort in clarifying its position. Academic commentary is varied and ultimately unhelpful; some commentators argue that the standard means nothing while others argue that it provides dispositive effect. Neither view provides a compelling justification for any reasoning underlying the standard's vagueness or erratic application. Devising a principled system of deference can be broadly contemplated as a choice among three options: absolute deference, no deference, or a coherent system operating somewhere between these two extremes. The systems of deference operating at the extremes, no deference and total deference, are both unfeasible and constitutionally suspect. In between these two extremes is the search for a principled standard of deference that harnesses the institutional virtues of all governmental branches and correspondingly minimizes their institutional weaknesses. There are two leading candidates for such a system: Chevron1-style deference and Skidmore2-style deference. Recent academic theory in foreign affairs greatly favors Chevron-style deference while dismissing Skidmore as Chevron's antiquated predecessor. Ultimately, adopting Chevron-style deference would fail to solve many of the problems of the current doctrine while giving rise to new headaches. Chevron-style deference is too deferential in some cases and insufficiently deferential in others. It operates on an artificial plane that is not theoretically cogent in treaty interpretation and does not account for the peculiarities of treaty law that may compromise its effectiveness. Skidmore-style deference enables application of a flexible scale of deference that is more appropriate to the particularities of treaty law and the institutional balance that must be struck in a thicket of constitutional questions. A Skidmore-style account of deference would assess: (1) whether the treaty regulates executive power; (2) the type of international agreement being interpreted; (3) whether the Executive possesses relevant expertise; and (4) the process of enforcement and consistency (or inconsistency) of the Executive's position. …