Executive power v. international law

The leading Supreme Court case on the point, The Paquete Habana, states that "international law is part of our law," but that "the customs and usages of civilized nations" will be given effect only if "there is no treaty, and no controlling executive or legislative act or judicial decision" to the contrary.7 While supporters of international law as a restraint on presidential power take comfort from the first part of The Paquete Habana's holding, the Court also clearly held that the President could override customary international law.8 It appears that no federal court of appeals has ever held that customary international law limits presidential decisions.9 The only district court to reach such a conclusion was affirmed, but the court of appeals did not address the customary international law holding.10 Much attention has focused on the applicability of customary international law in domestic law through the Alien Tort Statute ("ATS"). The ATS is not directly relevant here, however, because it represents international law that has been incorporated by an explicit congressional act, rather than customary international law which limits the President by its own force.11 So far, courts have found that sovereign immunity precludes ATS suits against the United States government and, presumably, the President.12 Surprisingly, little academic literature critically assesses the contention that the President is bound by customary international law.13 Sustained academic attention is long overdue, because such a conclusion would have revolutionary implications for the President's exercise of his constitutional powers, and perhaps significant limitations on the war on terrorism.