Document Type

Article

Publication Date

2022

Abstract

In 1888, the Supreme Court decided a case called Whitney v. Robert- son, which is generally considered to be the source of the proposition that, under the Constitution, later-in-time statutes can override earlier treaties (the Rule). The Rule is highly controversial because it violates articles 26 and 27 of the Vienna Convention on the Law of Treaties (VCLT), which the United States has accepted as binding on it as cus- tomary international law (CIL). Despite that, the United States has since Whitney routinely engaged in treaty overrides, and the Court has repeatedly endorsed the Rule even while narrowing its application to cases where Congress has clearly expressed its intent to override. Despite the common consensus, the statement of the Rule in Whitney was dicta since the Court held that the later statute did not conflict with the earlier treaty. So, when did the Court state the Rule as a holding that can be relied upon when Congress enacts legislation that purports to override treaties? The answer is that the Rule is based not on the Constitution (since the Supremacy Clause says nothing about the relationship between treaties and statutes) but on two old cases from 1870 and 1884, both of which related to disfavored groups: Cherokee Tobacco (Indians) and Head Money (Jews). This Article argues that the Rule is not needed as a constitu- tional matter. Outside the tax area, the courts will interpret later stat- utes as overriding earlier treaties only if Congress makes its desire to

Comments

Copyright © 2024 Florida Tax Review. Originally published as: Avi-Yonah, Reuven S. "The Dubious Constitutional Origins of Treaty Overrides: A Response to Rosenbloom and Shaheen." Florida Tax Review 26, no. 1 (2022): 287-325. DOI: https://doi.org/10.5744/ftr.2023.0287

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