Hastings Constitutional Law Quarterly


Scott A. Penner


When a statute and treaty conflict, courts resolve the conflict in favor of the one most recently implemented. This rule of statutory interpretation has existed for over a century. However, the underlying rationale for the later-in-time rule does not comport with the Constitution. Instead, this Note argues that courts should employ a treaty-trump presumption-absent a clear statement from Congress of their intent to abrogate a treaty provision-where a later-in-time statute comes into conflict with the treaty.

While the Supremacy Clause does seem to' indicate that statutes and treaties should be treated equally, this Note argues that in reality, the Supremacy Clause only discusses where statutes and treaties fit with respect to the Constitution and state laws. The Supremacy Clause itself is silent on whether a treaty or a statute should be given precedent with respect to each other. Focusing on the text of the Constitution, the Framers original understanding of the treaty power, and an inter-textual look at various constitutional provisions, this Note concludes that treaties should be given more weight than statutes and as such the later-in-time rule does not apply unless Congress clearly seeks to abrogate the treaty.

Finally, the Note explains why a shift to a treaty-trump rule would not be difficult to implement given the other techniques of statutory interpretation used by the courts, such as the Charming-Betsy presumption and the presumption against extraterritorial application.

In all, this Note seeks to begin a dialogue about the original intent of the Framers and how they would have sought to resolve conflicts between a treaty and a later-in-time statute.