Treaties and public lawmaking: A textual and structural defense of non-self-execution

This Rejoinder responds to Professors Flaherty and Vazquez by advancing tex tual and structural constitutional arguments in defense of the doctrine of non-self-executing treaties. It first responds by raising several historica l and contextual problems with Professor Flaherty's Response. It then argue s that requiring congressional implementation of treaties that regulate mat ters within Congress's Article I; Section 8 powers respects the Constitutio n's basic separation of the legislative and executive powers. This approach also ensures that treaties, which are asserted to be free from the Constit ution's federalism and the separation of powers limitations, will not assum e an unbounded legislative power, and it promotes the Constitution's princi ple that domestic legislation be made by democratic processes. Professor Yo o criticizes the position that the Supremacy Clause's text requires automat ic judicial enforcement of treaties as too simple and inconsistent with pra ctice both in the treaty area and in the enforcement of federal statutory a nd constitutional provisions.