The Define and Punish Clause and the Political Question Doctrine

Lyle D. Kossis

Volume 68, Issue 1, 45-96

The Constitution gives Congress the power to “define and punish . . . Offences against the Law of Nations.” Congress has used this power to enact various criminal statutes that proscribe certain violations of international law. In some cases, criminal defendants argue that these statutes are unconstitutional because Congress has incorrectly defined the law of nations. Federal courts routinely entertain this argument. But the political question doctrine prevents federal courts from resolving a question when the Constitution entrusts the political branches with providing an answer. The Define and Punish Clause gives Congress, not the courts, the power to define the law of nations. Accordingly, federal courts should be barred from determining whether Congress has properly defined international law. No court or scholar to date has pursued this argument in detail. This Article takes the first step.

The Article begins by describing the historical underpinnings of the Define and Punish Clause and the contemporary version of the political question doctrine. The Article then explains why the proper definition of international law under the Define and Punish Clause is a political question. It reviews the Clause’s text, structure, and history, applicable Supreme Court precedent, and a variety of practical arguments to illustrate why federal courts have no authority to second-guess Congress’s definition of the law of nations. Finally, the Article concludes by situating its central thesis within the current framework of both constitutional and non-constitutional law. It explains that the Supreme Court has never used international norms to limit Congress’s power under the Define and Punish Clause. It also argues that although Congress has the sole power to define the law of nations, legislative power will remain meaningfully limited, and courts will remain free to interpret other sources of international law.

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