Ed Whelan’s most substantive post so far is on a complicated topic – the role of “customary international law” as “federal common law.” His post, however, casts an ongoing mainstream academic debate in an inflammatory and ultimately inaccurate light. (Like Whelan, I’m learning some of this as I go, so I’ll correct anything I get wrong – but it’s important to pushback on this stuff).
Anyway, the ultimate problem with Whelan’s argument is that it transforms a debate about the allocation of power between federal and state governments into a worldwide conspiracy theory. To Whelan, CIL is essentially part of a Rube Goldberg-like process whereby (1) a cabal on international activists pass a resolution and proclaim it law, (2) Obama appoints federal judges who are sympathetic; and (3) those judges use new versions of international law to “threaten” “representative government.” There’s more than a little conspiracy theory involved.
At heart, however, much of this debate (particularly the Koh passage Whelan cites) is an argument about state versus federal authority. To understand, you’ll need some background on the concept of “common law.”
“Common law” basically means judge-made law. The idea is that judge-made law can exist outside of constitutions, or statutes, or regulations. For instance, in certain states, you might be sued for assault under a common law definition of assault, even if there’s no assault statute on the books.
There are, however, two very distinct forms of common law – and one is far more problematic than the other. First, “common law” can refer to a wholly independent binding law floating out in space (this is Holmes’ “brooding omnipresence”). This is a problematic concept, and one that was essentially eliminated in the United States following the critiques of people like Holmes and other legal positivists. The reason it’s bad is because it allows judges to make stuff up and be completely unaccountable for it. For that reason, federal judges liked to use it to break up labor movements in the early 20th century.
The second notion of “common law” is far more benign. This notion recognizes the supremacy of positive law (e.g., statutes, regulations), but allows courts to serve as a “gap fillers” where statutes are ambiguous (or where any source of positive law is ambiguous). This is a huge part of what courts do – and there’s nothing controversial about it.
For instance, let’s say that a statute provides for a one-year statute of limitations. And let’s assume that it matters whether Day 1 begins on the date of the injury, or on the next day. If the statute is silent, judges might construe the statute in a way that starts the clock on the day of the actual accident.
In short, courts would define when “Day 1” begins. This gap-filling is essentially “common law” – the idea is that courts are allowed to fill gaps and interstitial areas on which the original source of law doesn’t speak. If legislatures don’t like these rulings, they are free to immediately change them.
In short, Version #2 is what courts do every single day and is uncontroversial. Version #1 is basically never done and is extremely controversial. Whelan, in essence, is portraying Version #2 as Version #1, and making it seem a lot scarier than it is.
When Koh and others are saying that “customary international law” is “federal common law,” what they’re saying is that these customs can be gap-fillers where Congress or a treaty hasn’t spoken. Whelan’s argument gives the impression, however, that customary international law (or CIL) will be more like the “brooding omnipresence” that will bind everyone helplessly.
Moving on to the allocation of power point, remember that gaps have to be filled by someone. For instance, let’s say that no law speaks to the issue of consular immunity.* Someone has to decide whether these officials are immune (and under what circumstances) if there’s no clear answer anywhere else in the positive law. Koh is saying that he wants federal law to govern this issue, and to be informed by international custom. Bradley and Goldsmith, by contrast, want these issues decided by state common law.
Neither is a flatly absurd position, but there are strong policy arguments against letting state courts be the gap fillers. For one, in the international arena, we don’t want to talk with 50 different voices. It makes sense to make these matters subject to federal law. And federal law – like all positive law – requires gap fillers. Courts can and do provide these gap fillers, and Congress can change the interpretations if they're unhappy with them.
It’s not clear from Whelan’s excerpt, but that’s what Koh is talking about in the excerpt Whelan provides:
On the contrary, insisting that “[i]nternational law is federal law,” [Koh] argues that “the capacity of the federal courts to incorporate customary international law into federal law—unless ousted by contrary [and subsequent] federal directive—is absolutely critical to maintaining the coherence of federal law in areas of international concern.” (emphasis mine)
Whelan cites this excerpt out of context to essentially argue that Koh wants liberal courts and activists want to use CIL as common law to undermine representative government. In reality, Koh is talking in this passage about which institution should decide this stuff – federal governments or state governments. After all, somebody has to. That’s why Koh used the word “coherence,” which seems like a weird word to use if Koh were merely talking about overthrowing representative government.
And yes, to the extent this gap filling becomes part of federal law, of course it trumps contrary state law. All federal law trumps conflicting state law. There’s nothing to see here.
Again, this is complex stuff. And there are certainly arguments about the policy rationales for why certain customs should or should not be recognized (or even whether they are in fact customs). But what’s wrong about Whelan’s argument is that he’s transforming a more mundane academic argument into evidence of a global international conspiracy theory to undermine “representative government.”
One last point – the Bradley/Goldsmith article was not handed down from Sinai. These are smart experts, but their article has been attacked on several fronts. In particular, the notion that CIL didn’t start becoming a part of federal law until 1980 is just flatly wrong. For instance, see Gerald Neuman, “A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997) (*This article was the source of my consular immunity example too).