In my last post, I raised the possibility that Charming Betsy could play a role in the challenges to the Trump administration's IEEPA tariffs. (There have been three new complaints filed since that post: State of Oregon v. Trump, Learning Resources v. Trump, and Princess Awesome v. CBP. By my count, that makes eight cases in total.) Recall that the Charming Betsy canon of interpretation, as articulated by the U.S. Supreme Court in 1804, states that "[a]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." That was a long time ago, and in a 2020 article, law professor Justin Hughes explains some later refinements:
Just a few years after [the 1982 case of Weinberger v. Rossi], the Restatement (Third) of United States Foreign Relations Law expressed the doctrine in words that track Justice Marshall but expands it to include all public international law:
Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.
The Restatement Third tweaks Marshall's interpretative standard ("fairly possible") while also clarifying that the canon - couched in the nineteenth century idea of the "law of nations" - applies to both customary international law and the specific international legal obligations that the United States undertakes through agreements.
(footnotes omitted)
As noted in the earlier post, a key issue in the IEEPA complaints is whether the statute allows for the use of tariffs. There are two main aspects to the Charming Betsy analysis on this issue: Is the statute ambiguous on this question? And if so, how might international obligations guide the interpretation of the statute?
With regard to whether the IEEPA allows tariffs, I think there is a good argument that it does not, which would put an end to all this. But at the least, I would say the statute is ambiguous on this point, which brings in Charming Betsy. I won't go into the details on that point here, though, because I want to focus on the role of international obligations in providing interpretive guidance. In this regard, let me turn to an issue on which I raised questions in my earlier post: What exactly are the "international obligations" at issue here, and how should a U.S. court ascertain their meaning?
When determining what the "obligations" in an international agreement are, I think it's clear that you have to look at both the obligations and any exceptions that qualify them. As I noted in the earlier post, the key WTO obligations at issue are GATT Articles I and II, and for our purposes I don't think there is much doubt about the application of these provisions to the IEEPA tariffs (the tariffs are in violation). Rather, the focus here will be on interpretive questions related to the Article XXI security exception: How should a U.S. court think about whether the tariffs are justified under that exception?
There are several approaches I can imagine here:
- The court could accept the official U.S. government position that the security exception is totally self-judging, and on this basis find that the tariffs would not violate the international obligations of the U.S. on the basis that the U.S. has invoked Article XXI.
- The court could do its own interpretation of the text of Article XXI, in order to decide whether (1) it is totally self-judging or (2) it requires some type of good faith/objective analysis to determine whether a particular measure is justified; and in the case of (2), the court could then do that analysis and determine whether the IEEPA tariffs are justified under the Article XXI exception.
- As a variation on the second approach, the court could take into account WTO dispute settlement rulings that interpret and apply Article XXI, and use those interpretations to help it determine whether the IEEPA tariffs are justified under the Article XXI exception.
(An additional consideration would arise if there were a panel ruling on the IEEPA tariffs themselves. If such a ruling existed, the courts could just rely on that to determine that the tariffs are or are not consistent with international obligations. But we are not there yet.)
In thinking about how courts should approach these issues under Loper Bright (i.e., in a post-Chevron world), Jacobson and Finan argue that "if applicable international law is too ambiguous to guide the interpretation of an ambiguous statute, only then should courts give agencies’ interpretations 'respect' to the extent they have the 'power to persuade.'" How would Article XXI be treated under this approach? I think it's fair to say that the Article XXI text itself, on its face, is a bit ambiguous in terms of how much deference to national governments it requires. If we were ignoring the WTO panel interpretations of this provision that clarify it (I'll get to those later), we could then turn to the post-Loper Bright approach that Jacobson and Finan lay out:
Notably, the Supreme Court in Loper Bright “warmly embraced Skidmore v. Swift & Co., which calls not for deference, but for respectful attention to the views of the relevant agency.” The Court held that interpretations “‘made in pursuance of [an agency’s] official duty’ and ‘based upon . . . specialized experience,’ ‘constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,’ even on legal questions.”27 Courts should use the Skidmore factors to weigh whether the agency’s interpretation is entitled to such “respect.” Factors for a court to consider include the “thoroughness evident in [the agency’s] consideration, the validity of [the agency’s] reasoning, [the interpretation’s] consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Under this approach, courts can fulfill their duty to interpret statutes, while relying on agencies’ expertise as a guide when both the statute and applicable international law present true ambiguity, in line with the standard established in Loper Bright.
Applying that approach here, does the U.S. government view of whether the tariffs are justified under Article XXI merit the Skidmore respect? Was its consideration of these issues "thorough", "valid", and "consistent"? I'm really not sure how a court would see this. Maybe the judges would defer to the Executive branch here, or maybe they would want to do their own analysis of Article XXI. I can imagine that the views of the U.S. Supreme Court justices would vary on these issues, but I'm not familiar enough with these views to make a prediction on how they would come out.
Regardless of how U.S. courts would approach an analysis of the text of Article XXI on its own, in my view there is a strong argument that the courts should take into account WTO dispute settlement rulings on these issues, which have removed much of the ambiguity from Article XXI. The DSU has a specific provision that explains the role of the dispute settlement system as "clarifying" the meaning of the agreements through "the customary rules of interpretation of public international law":
The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.
The Uruguay Round Agreements Act Statement of Administrative Action has a similar statement, making it clear that U.S. negotiators were on board with this approach. As a result, in thinking about what Article XXI means, U.S. courts should take into account the clarifications provided through WTO dispute settlement (which, of course, may be ambiguous themselves at times). I won't walk through it all in this post, but applying the clarifications set out by WTO panels, I think a court should find that the IEEPA tariffs are not justified under Article XXI. And consequently, under Charming Betsy, to avoid a conflict with international law, the court should reach an interpretation of the IEEPA that does not allow tariffs.
