Taking Care of Treaties

The United States’s legal capacity to cure breaches of its international obligations appears deeply unsatisfactory. Adverse decisions by international tribunals are unlikely to have direct domestic effect, and treaties and domestic legislation rarely address domestic remedies for international breaches; the President’s foreign affairs powers are sometimes invoked to fill this gap, but their extent is uncertain. Drawing on one or another of these theories to resolve international breaches risks distorting the positive law or vesting the President with boundless authority— or, if such theories are found wanting, reinforces a discrepancy between our international obligations and our domestic law. The Take Care Clause affords a surprisingly well-tailored solution. Recent discourse has neglected the take care authority—but for suggestions that it is irrelevant or, alternatively, a license for unbridled executive power. These objections can be met. As this Article explains, the Take Care Clause enables meaningful presidential authority for treaties, including some conventionally labeled non-self-executing. Yet this authority may be divested by the Constitution, treaty, or statute, and the Clause itself guards against vesting the President with plenary lawmaking authority. This Article explains how the presidential take care authority addresses potential controversies involving compliance with judgments of international tribunals (like those of the International Court of Justice), international legislative decisions (such as Security Council resolutions), and finally, treaties affording no recourse to international mechanisms. By filling the gaps between treaty ratification and implementation, the take care authority reinforces congressional supremacy without forcing treaty obligations to founder upon it.