Volume 43 | Number 1 Fall 2007
V. Conclusion
Key provisions in the Military Commissions Act of 2006 are designed to restrict judicial application of the Geneva Conventions.87 These provisions raise important constitutional questions about the scope of Congress’ power to limit judicial enforcement of treaties that are the supreme Law of the Land. Any serious effort to resolve those constitutional questions must confront the persistent conflict between the nationalist and transnationalist models of treaty enforcement. If the Supreme Court endorses the nationalist model, then the MCA provisions restricting judicial application of the Geneva Conventions would easily pass constitutional muster. But if the Supreme Court endorses the transnationalist model, those MCA provisions would be vulnerable to a constitutional challenge.
In recent cases involving the judicial enforcement of treaties, U.S. courts have been sharply divided between those who apply the nationalist model, and those who apply the transnationalist model. This division is manifested in lower court opinions implicating the Geneva Conventions.88 Within the Supreme Court, the division between nationalist and transnationalist camps is evidenced by the split between the majority and the dissent in Hamdan v. Rumsfeld.89 At present, it is difficult to predict the outcome of the ongoing conflict between the nationalist and transnationalist models. The most likely outcome, though, is that the Supreme Court will attempt to chart a middle course, and in the process will create further confusion and ambiguity in existing doctrines related to the judicial enforcement of treaties in U.S. courts.
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Footnotes
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