Superseding Statutory Law by Sole Executive Agreement: An Analysis of the American Law Institute's Shift in Position
![handle is hein.journals/vajint23 and id is 685 raw text is: Superseding Statutory Law By Sole
Executive Agreement: An Analysis of
the American Law Institute's Shift in
Position
Treaties, although primarily compacts between governments of
sovereign states, may also confer domestically enforceable rights
and duties on citizens of signatory states.1 In the United States,
such treaty law may conflict with congressional legislation enacted
either before or after the conclusion of a given treaty. In address-
ing such a conflict, U.S. courts apply the last in time doctrine,2
which gives precedence to the instrument most recently concluded.
The doctrine, a long-established and little-questioned rule of con-
stitutional interpretation, is based on the principle that interna-
tional treaties and acts of Congress are of equal status and effect
1. Head Money Cases, 112 U.S. 580, 598 (1884) (referring to treaties regulating the mu-
tual rights of alien citizens to take property by descent or inheritance).
2. The last in time doctrine will be used herein to refer to the rule which states that
where a federal statute and a self-executing treaty are in conflict the one last in date will
control the other. Whitney v. Robertson, 124 U.S. 190, 194 (1887). The cases refer to this
rule in a variety of ways and seldom use the last in time phrase.
3. The last in time doctrine does not apply to conflicts between treaties and state statutes
or state constitutions. Under the supremacy clause of the Constitution, see infra note 21,
treaties are the supreme law of the land and thus always prevail over conflicting state law.
United States v. Pink, 315 U.S. 203, 233 (1942) (Power over external affairs is not shared
by the States; it is vested in the national government exclusively. It need not be so exercised
as to conform to state laws or state policies, whether they be expressed in constitutions,
statutes or judicial decrees.); United States v. Belmont, 301 U.S. 324, 330-32 (1937). An
executive agreement constitutes federal law and also supersedes inconsistent state law. Bel-
mont, 301 U.S. at 331 ([T]he same rule [regarding the supremacy of treaties over state law]
would result in the case of all international compacts and agreements from the very fact
that complete power over international affairs is in the national government.... .); 40 Op.
Att'y Gen. 469-70 (1946) (executive agreement authorized by joint resolution of Congress
would supersede inconsistent state or local laws). This Note will not address conflicts be-](ViewImageLocal?handle=hein.journals/vajint23&div=40&collection=&method=preview&ext=.png&size=3)
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Superseding Statutory Law by Sole Executive Agreement: An Analysis of the American Law Institute's Shift in Position
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