[net.politics] Common Guilt

wrongLogin (04/04/83)

	    It is certainly true that treaties are the "supreme	law
       of the land". That is, they take	effect,	any State law,
       State consitution, or judicial policy to	the contrary not
       withstanding (See McCormick v. Sullivant, 10 Wheat. 192,202
       (1825); United States v.	Fox, 94	U.S. 315,320 (1876) ).
       However,	the treaty making power, while broad, is not
       unlimited. In particular, it must be made bona fide and not
       for the purpose of aggrandizing the powers of the National
       Government (Missouri v.	Holland, 252 U.S. 416 (1920) ).
       Moreover, a treaty may not overide the constitution; it may
       not change the character	of the government which	is
       established by the Constitution nor require an organ of that
       government to relinquish	its constitutional powers (See
       Geofroy v. Riggs, 133 U.S.  258,267 (1890); Doe v. Braeden,
       16 How. 635,637 (1853) ;	The Cherokee Tobacco, 11 Wall.
       616,620-621 (1870); United States v. Minn., 270 U.S. 181,
       207-208 (1926) ). Also, a treaty	may be adopted with
       reservations as in the case of the Hague	Conventions and	the
       United Nations Charter.

	    It is also the case	that an	"executive agreement"
       within the power	of the President to make is the	law of the
       land which the courts must give effect to (U.S. v. Belmont,
       301 U.S.	324 (1937); United States v. Pink, 315 U.S. 203
       (1942) ). Finally, Congress may authorize agents	to enter
       into executive agreements with foreign governments (Field v.
       Clark, 143 U.S. 649 (1892); Hampton, Jr.	and Co.	v. U.S.,
       276 U.S.	394 (1928) ).

	    There is some question whether treaties or "executive
       agreements" may be repealed (See	Fong Yue Ting v. U.S., 149
       U.S. 698,721 (1893); Cf.	Reichart v. Felps, 6 Wall.
       160,165-166 (1868) ). It	does not seem that treaties or
       executive agreements may	overide	previous acts of Congress
       (See Whitney v. Robertson, 124 U.S. 190 (1888); U.S. v. Lee
       Yen Tai,	185 U.S. 213 (1902); Pigeon River Improvement, etc.
       Co. v. Cox, 291 U.S. 138	(1934);	Cf. however Cook v. U.S.,
       288 U.S.	102 (1933) ).

	    In any case, I know	of no support for the propostion
       that a United Nations RESOLUTION, passed	unanimously or
       otherwise, qualifies as a treaty	or executive agreement.
       Therefore, I see	no reason why such a resolution	would come
       under the auspices of Article VI.


					     - Cardozo