Alito’s Alleged “Concessions”

by Jonathan H. Adler

Ramesh — I am not troubled by Ethan Leib’s article on Judge Alito’s alleged “concessions,” but I am puzzled by it. Leib says it is a “concession” that Alito embraced Justice Jackson’s concurrence in the Youngstown Steel case, but that opinion is the prevailing law of the land on such questions. In Dames & Moore v. Regan, the Supreme Court (in an opinion by Chief Justice Rehnquist) adopted Jackson’s opinion as the controlling approach to evaluating contested exercises of executive power. The surprise would have been if Alito, or any prospective Justice, did not have positive things to say about Jackson’s opinion, as it would suggest an unfamiliarity with some of the bedrock principles of separation of powers. It’s also not a concession to say that the Supreme Court should look at foreign law in some cases to interpret treaties to which the U.S. is a party. Insofar as a treaty is an agreement between multiple parties, looking at how the various parties understand the nature of their commitments is one way to resolve any ambiguities in the treaty’s text. This is not a controversial claim either, and hardly a concession.

[As a side note: Leib is also a bit off base when he suggests that treaties are not enforced as rigorously in the United States as they are abroad. To the contrary, validly ratified treaties are part of the supreme law of the land under the Constitution. This is not the case in many other countries. This is one of the reasons conservatives takes treaties so seriously, and view them with suspicion. In many other countries, however, treaties do not have the same legal status, and thus are less binding on the governments that adopt them. In the environmental area, for example, the United States is one of the few nations that fulfills its treaty commitments, whereas many other nations ratify treaties and then continue to flout their requirements.]

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