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Delegation to International Treaty Organizations:

As Julian Ku notes on Opinio Juris, the U.S. Court of Appeals for the D.C. Circuit's opinion in NRDC v. EPA has potentially important implications for the domestic implementation of international treaty commitments. Specifically, the D.C. Circuit panel held that the post-ratification consensus agreements reached by parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (of which the United States is one), are not "law" enforceable in federal courts.

Methyl bromide, a naturally occurring gas that is also used as a fumigant in crop and produce production, is one of the substances to be phased out under the Montreal Protocol. The U.S. ratified the protocol and subsequently adopted implementing legislation as part of the 1990 Amendments to the Clean Air Act. In 2004, the EPA issued a rule identifying the "critical uses" of methyl bromide that are exempt from the general ban on production and consumption. NRDC believed that the EPA's rule was too permissive, and violated the Montreal Protocol, so it sued in federal court.

The first time around, NRDC lost on standing grounds (more on that in another post). On rehearing, however, the D.C. Circuit found NRDC had standing, but rejected NRDC's claim that the EPA's action violated U.S. law. Even if the EPA's methyl bromide crucial use exemptions were broader than allowed under post-ratification decisions made by the parties to the Montreal Protocol, the court held in an opinion by Judge Randolph, such decisions "are not 'law' within the meaning of the Clean Air Act and are not enforceable in federal court."

If the "decisions" are "law" -- enforceable in federal court like statutes or legislative rules -- then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification, in violation of Article II of the Constitution. . . .

A holding that the Parties' post-ratification side agreements were "law" would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers. We need not confront the "serious likelihood that the statute will be held unconstitutional." . . . It is far more plausible to interpret the Clean Air Act and Montreal Protocol as creating an ongoing international political commitment rather than a delegation of lawmaking authority to annual meetings of the Parties. . . .

Our holding in this case in no way diminishes the power of the Executive to enter into international agreements that constrain its own behavior within the confines of statutory and treaty law. The Executive has the power to implement ongoing collective endeavors with other countries. . . . Without congressional action, however, side agreements reached after a treaty has been ratified are not the law of the land; they are enforceable not through the federal courts, but through international negotiations.

Judge Edwards also wrote a concurring opinion addressing some of the implications of the decision for the enforcement of other international agreements, arguing that the opinion should not be read to preclude the enforcement of post-ratification decisions under other agreements in other contexts:
we do not decide here whether, once the United States undertakes a substantive obligation in a treaty, and at the same time undertakes to abide by the result of a specified dispute resolution process before an international tribunal, it is bound by the judgments of the tribunal no less than it is by the treaty that is the source of the substantive obligation. That question is not before us.
Although the decision does not directly hold that Congress cannot delegate policy authroity to international orgnaizations, it highlights the constitutional questions that such a delegation would raise. It is one thing to delegate quasi-legislative authority to a domestic agency, whether in the executive branch or an "independent" agency. It is quite another to delegate such authority to an international entity that is not bound by U.S. law or responsive to U.S. constituencies.

Related Posts (on one page):

  1. Second Time's the Charm on Standing:
  2. Delegation to International Treaty Organizations:
Chris Bell (mail):

It is one thing to delegate quasi-legislative authority to a domestic agency, whether in the executive branch or an "independent" agency. It is quite another to delegate such authority to an international entity that is not bound by U.S. law or responsive to U.S. constituencies.


Is it? I don't remember voting for the head of the U.N. or the head of the E.P.A.
9.4.2006 11:05am
Bruce Hayden (mail) (www):
No, but we (the people, if not you individually) voted for the President who appointed the EPA director and that agency has authority under U.S. statutes. This is a structure that we have grown to accept - Congress sets up an agency, the president appoints the people running it, and the agency, based on its powers granted by Congress, makes rules.

Maybe the problem here is that in the case of the EPA, the president has direct control, in his Executive capacity, to appoint those who run the agency. In other words, he and his people are the ones running it, and he was elected under our Constitution. In the case of the NRDC case, we are talking having rule making by people who are not under the Executive's control.
9.4.2006 1:34pm
Chris Bell (mail):
And during the last election did the appointment of an EPA director change your vote? Once we allow Congress to delegate at all, the choices made by those delegates rarely come back to affect the Congress. If the foreign organization makes a decision Congress doesn't like, they can overrule it by statute. I think the actual political accountability of the delagatee (or of those who appoint him/her) has very little practical meaning.
9.4.2006 2:08pm
James of England:
Is this another decision that questions the constitutionality of US Bilateral Investment Treaties? Is there a difference between a foreign legislative and a foreign judicial/ arbitral figure? Hasn't the US consented to the occasional binding international arbitration since the earliest days of the republic? I'm in favour of the need for a clear statement or somesuch, and the ruling would appear to be clearly right for this kind of implied authority.

I'd also think that, as with a domestic agency, Congress could overrule even those foreign decisions that it had consented to, as they did before the Aroostock war.
9.4.2006 3:37pm
logicnazi (mail) (www):
I'm a bit confused. Is the deciscion here holding that these side agreements are not enforceable because they were agreed to only by the executive without even the indirect approval of congress, i.e., if the original treaty had expressly said that any side agreements signed by the executive were automatically binding then those might be enforceable. Or is it holding that while it would be necessery to abide by these side agreements to uphold the original treaty congress signed they didn't have the authority to delegate lawmaking power in this fashion.

In other words is this a situation where the court is denying the executive the ability to go around congress or is it one where they are frustrating congress's wish to delegate authority to the executive/treaty provisions. If the former I support this deciscion and if the later I have serious problems with it?
9.4.2006 5:35pm
logicnazi (mail) (www):
Also I've never understood the justification for the anti-delegation readings of the constitution.

Sure, I can see the justification for striking down the line item veto if it said that the new bill with line items struck out is law. After all the constitution specifically defines the requirements for something to be a law.

However, I don't understand how the constitution can prohibit laws of the form, "Funding shall be distributed according to whatever piece of paper with line items struck out has been voted up by congress and signed by the president." or laws of the form, "The government will do whatever this treaty says."

I mean congress is free to pass laws like, "If a border patrol officer deems an individual to be a likely terrorist threat they may be detained for blah blah," where the law explains what may happen contigent on some other agent's deciscion. How can you possibly draw a distinction between these sorts of laws and the ones I suggest?

Also I don't see what extra constitutional issues would be raised by a delegation to an international body. Sure it would be politically dangerous but what is the legal issue?
9.4.2006 5:41pm
James of England:
Since you seem to be sympathetic to these ideas, Jonathan, could you tell me if they are related to these? I don't mean the idea that Free Trade Agreements increase state control over trade, although anyone who can produce even a half argument that this is true would earn my gratitude. I mean the idea that even informal cooperation with our neighbours on border security represents a reduction in US sovereignty.
9.4.2006 6:16pm
Chris Bell (mail):
James of England:

Well, I'm not sure I have anything to say about the Congressman you linked to. (Wait, yes I do, he's an idiot.) But as far as free trade agreements increasing government control over trade, sure they can.

The fewer countries there are in a treaty, the more treaties we need to include more people. Each treaty has its own legal (complicated) framework for what counts and what doesn't under the treaty. If Indonesian cloth is made into a shirt in Mexico, does it get into the US for free as a Mexican good or do we charge it Indonesian tax? Plus, the challenges and appeals framework is different each time.

Basically, lawyers love this because there is a lot more work to be done and money to be made. But if every country made an individual free trade treaty with every other country we would have ~18,721 different treaties and all the government interference we could ask for.
9.4.2006 6:56pm
andy (mail):
funny how quickly courts are to emphasize that "post-ratification decisions" aren't law, but at the same time routinely use legislative history, even when such history post-dates the enactment of the related legislation.
9.4.2006 9:10pm
Objective Observer (mail):
However, I don't understand how the constitution can prohibit laws of the form, "Funding shall be distributed according to whatever piece of paper with line items struck out has been voted up by congress and signed by the president." or laws of the form, "The government will do whatever this treaty says." How can you possibly draw a distinction between these sorts of laws and the ones I suggest? Also I don't see what extra constitutional issues would be raised by a delegation to an international body. Sure it would be politically dangerous but what is the legal issue?

International bodies are not "the people" whose power to govern is delegated to public officials in elections. Do you think the Congress could delegate the power to appoint the EPA head to an international body? Can an international body's decision constitute law if not drafted by Congress and signed by the President? There are direct clauses of the structural Constitution -- reflecting separation of powers concerns -- that prohibit a positive answer to both questions. How could it not be a legal question without abandoning any and all logic in one's reading of the Constitution?
9.5.2006 8:55am
nick (mail) (www):
"All legislative powers herein granted" are vested in Congress, not in the President, much less in any international body.

It is not well known that the Framers extensively debated the non-delegation doctrine in the early Congresses. One interesting debate was over the delegation to the Executive of the ability to define postal routes. Madison among others successfully argued that this was unconstitutional. See my paper on the origins of the non-delegation doctrine.

See also my article on NRDC v. EPA.
9.6.2006 3:23am