The Dangers of Deference: International Claim Settlement by the President

Authors

Ingrid Wuerth

Document Type

Article

Publication Title

Harvard International Law Journal

Publication Date

2003

ISSN

0017-8063

Page Number

1

Keywords

international claim settlement, deference, executive authority

Disciplines

International Trade Law | Law | Litigation | President/Executive Department

Abstract

During the final months of the Clinton administration, the State Department entered into a trio of unprecedented international agreements with France (the "French Agreement"), Germany (the "German Agreement"), and Austria (the "Austrian Agreement"). These "sole" executive agreements, designed to resolve litigation pending in the U.S. courts that arose out of World War II and the Holocaust, were made without Senate ratification(as required for a treaty) or congressional authorization (as in a congressional- executive agreement). Although executive branch settlement of claims without Senate or congressional approval has a long history, these executive agreements mark an important departure from prior practice by resolving pending U.S. litigation against private companies rather than claims against foreign sovereigns. As one senior State Department official noted, the German Agreement was a "move into uncharted areas. The agreements do not, however, purport to terminate the litigation of their own force, but instead obligate the State Department to file "Statements of Interest" requesting that courts dismiss the cases based on the foreign policy interests of the United States. Courts have already done so, even over the objections of plaintiffs, without so much as a nod either to the important expansion of executive authority at work or to the Treaty" and Supremacy Clauses of the U.S. Constitution. Although the Executive often seeks-and receives-deference from the courts, these Statements of Interest are particularly troubling for three reasons. First, they are made pursuant to executive agreements. Because the Supremacy Clause makes "Treaties," but not other international agreements, the "supreme Law of the Land,"' the courts' deference to these executive agreements permits the Executive to achieve through the courts what it could not otherwise do without the agreement of two-thirds of the Senate, as required by a treaty... Although the Executive often seeks-and receives-deference from the courts, these Statements of Interest are particularly troubling for three reasons. First, they are made pursuant to executive agreements. Because the Supremacy Clause makes "Treaties," but not other international agreements, the "supreme Law of the Land,"' the courts' deference to these executive agreements permits the Executive to achieve through the courts what it could not otherwise do without the agreement of two-thirds of the Senate, as required by a treaty... Finally, and related to the second concern, these executive agreements serve as an attractive future model for the State Department to resolve other private litigation with foreign affairs implications... Part III turns to the Supreme Court, and demonstrates that those cases involved claims against foreign sovereigns and do not provide a basis for executive authority over claims against private individuals.

Recommended Citation

Ingrid Wuerth, The Dangers of Deference: International Claim Settlement by the President, 44 Harvard International Law Journal. 1 (2003)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/42