Treaties Versus Prior Acts of Congress.
The Court has en- forced numerous statutory provisions that it recognized as superseding prior treaty engagements. Chief Justice Marshall asserted that the converse would be true as well353 —that a treaty that is self-executing is the law of the land and prevails over an earlier inconsistent statute—and this proposition has been repeated many times in dicta.354 But there is dispute whether in fact a treaty has ever been held to have repealed or superseded an inconsistent statute. Willoughby, for example, writes: “In fact, however, there have been few (the writer is not certain that there has been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject.”355
The one instance that may be an exception356 is Cook v. United States,357 in which a divided Court held that a 1924 treaty with Great Britain that allowed the inspection of British vessels for contraband liquor and seizure if any was found had superseded the authority conferred by a section of the Tariff Act of 1922358 The difficulty with this case is that the Tariff Act provision had been reenacted in 1930,359 so that a simple application of the rule that the later enactment governs should have caused a different result. It may be suspected that the low estate to which Prohibition had fallen and a desire to avoid a diplomatic controversy should the seizure at issue have been upheld influenced the Court’s decision.
- Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314–15 (1829). In a later case, it was determined in a different situation that by its terms the treaty in issue, which had been assumed to be executory in the earlier case, was self-executing. United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833).
- E.g., United States v. Lee Yen Tai, 185 U.S. 213, 220–21 (1902); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871); Johnson v. Browne, 205 U.S. 309, 320–21 (1907); Whitney v. Roberston, 124 U.S. 190, 194 (1888).
- 1 W. Willoughby, supra, at 555.
- Other cases, which are cited in some sources, appear distinguishable. United States v. Schooner Peggy, 5 U.S. (1 Cr.) 103 (1801), applied a treaty entered into subsequent to enactment of a statute abrogating all treaties then in effect between the United States and France, so that it is inaccurate to refer to the treaty as superseding a prior statute. In United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876), the treaty with an Indian tribe in which the tribe ceded certain territory, later included in a state, provided that a federal law restricting the sale of liquor on the reservation would continue in effect in the territory ceded; the Court found the stipulation an appropriate subject for settlement by treaty and the provision binding. See also Charlton v. Kelly, 229 U.S. 447 (1913).
- 288 U.S. 102 (1933).
- 42 Stat. 858, 979, § 581.
- 46 Stat. 590, 747, § 581.