Custom term paper om Does the Supreme Court of the United States influence America’s foreign policy

In view of the Supreme Court’s recognition of the necessity of flexibility in the laws affecting foreign relations…. We are of the opinion that 1934 act does not grant an unconstitutional delegation of authority to the President. Decision. The court held in favor of the United States. The congressional delegation of authority under the 1934 statute was constitutional because Congress had provided the president with a sufficiently discemible standard to guide any decisions in carrying out the purposes of the Act.
When a law or regulation of the federal government directly conflicts with those of the state (or local) government, the federal law will still generally prevail when Congress has expressed the intention that the federal law shall prevail or when that intention may be inferred from the legislation or from circumstances. For example, when Congress enacts a comprehensive scheme of legislation, such as regulations governing commercial aviation, it includes an implication, known as federal preemption that the federal rule will prevail over an inconsistent state rule. The inconsistent state law will be void to the extent it conflicts with the federal scheme. Burma is a poor Asian country, about the size of Texas, with a population of about 48 million. Since 1962, a military dictatorship, has ruled Burma with an icon hand. Burma is known for state monopolization of leading industries, a bloated bureaucracy, corruption, an inadequate infrastructure, a shortage of foreign exchange, and disproportionately large military spending at the expense of social programs. According to reports from the U.S. State Department and International Organizations, the military government uses violence, intimidation, harassment, and fear to remain in power. There is no freedom of association or freedom of travel. It is illegal to own or possess an unregistered computer modem, and foreigners entering Burma with a computer are likely to have it confiscated. There are reports of tourists being harassed for taking pictures of men in uniform. In 2007, a crackdown by the military on Buddhist monks and pro-democracy demonstrators resulted in Burma’s worldwide condemnation at the United Nations.
Economic Sanctions against Burma. In 1996, the Commonwealth of Massachusetts, several major U.S. cities, and Congress sought to ban U.S. business with Burma. Massachusetts passed a law prohibiting all commonwealth and municipal government: agencies from buying goods or services from any person or firm that does business in Burma. Congress took a different strategy. The federal statue banned all economic aid to the Burmese government except for humanitarian assistance, denied U.S. entry visas to Burmese citizens, and authorized the president to prohibit “new investment” in Burma if the Burmese government continued its violent suppression of democracy. The powers delegated to the president were specific and directed him to work with other Asian countries to promote democracy in Burma through diplomatic means. In 1997, the president issued an executive order and imposed further restrictions on new investment as Congress had directed. The president’s order was based on both the 1996 statue and the International Emergency Economic Powers Act. Criminal penalties for violations ranged from up to 10 years’ imprisonment, up to $500,000 in corporate fines, and up to $250,000 in individual fines. In Crosby v. National Foreign Trade Council, the U.S. Supreme Court struck down the Massachusetts law on the basis of federal preemption. Justice Sourter explained why the state law must give way to the federal statute. He noted the difference between the federal and state sanctions. The Massachusetts sanctions were immediate and direct in prohibiting business in Burma. The federal sanctions were more flexible, gradually allowing the president to increase pressure on Burma as needed and to do so through both specific legal and diplomatic means. The court reasoned, “If the Massachusetts law is enforceable, the president has less to offer and economic and diplomatic leverage as a consequence.” Thus, the state law undermined the intended purpose and “natural effect” of the federal act. In deciding that federal law preempted the state statute, the Court repeated that the federal government must “speak with one voice” in foreign policy matters and that Congress had left no room for states or municipalities to become involved. Many U.S. and European companies – Eddie Bauer, Levi Strauss, Liz Claiborne, Pepsi, and others – have stopped doing business in Burma. Only time will tell whether this economic pressure and international diplomatic efforts aided by U.S. sanction will help to bring democracy to Burma.
3. Supreme Court decisions: native American treaties, international treaties.custom term paper
The treaty power of the United States is found in Article II of the Constitution. Treaties can cover almost any subject of mutual concern to nations, from dealing with global warming to eliminating nuclear weapons testing to enhancing the free movement of trade and investment across national borders. A convention is a treaty on matters of common concern, usually negotiated on a regional or global basis and open to adoption by many nations. Executive agreements, which are made by the president without resort to the formal treaty process in the Senate, under the Constitution, a treaty is considered the “Law of the Land.” It is binding on both the federal and state governments with the same force as an act of Congress. Treaties are said to be either self-executing or non-self-executing (also known as executory treaties). The United States is a party to both types. In the United States and other countries with written constitutions, a self-executing treaty has a “domestic law effect.” This means that once the treaty has been ratified, no further presidential or legislative action is required for it to become binding law. Self-executing treaties there fore provide individuals with specific rights, which the courts will enforce. An executory or non-self-executing treaty requires an act of Congress or of the President to give it legal effect. (In many other nations, including the United Kingdom, all treaties must be put into force through legislation.) Whether a treaty is self-executing or not depends on how a U.S. court interprets the language of the treaty and the history surrounding its negotiation and approval. One self-executing treaty is the Montreal Convention. This international agreement determines the rights and remedies available to those who are injured or whose property is damaged during travel on commercial aircrafts. The Montreal Convention also determines the liability and limitations or liability of the airline. On the other hand, treaties that merely express a nation’s desire to cooperate with other nations in achieving broad social, economic, cultural, humanitarian, or political objectives may not be self-executing. The Charter of the United Nations, for example, is a non-self-executing international “pledge” to abide by common values for the betterment of humankind and is generally considered by U.S. courts not to grant enforceable rights to private parties. Self-executing treaties have the same legal effect as statutes passed by both Houses of Congress. How, then do we resolve conflicts between treaties or statues, the terms of which are inconsistent with one another? In these cases, the rule is that the last in time prevails. A treaty will override an inconsistent prior act of Congress. Similarly, an act of Congress can override an inconsistent prior treaty, provided that Congress had expressed its intention to do so. The rule is easy to understand and is based on the idea that statures and treaties are of equal dignity, meaning they are of equal legal importance. Treaties of commerce, navigation (FCN treaty) and friendship are important to the business community worldwide and thus provide a good example to see the effect of treaties on US. FCN treaties are self-executing bilateral agreements that provide a broad range of protection to foreign nationals doing business in a host country. Although each treaty is different, they all typically state that each country will allow the establishment of foreign branches or subsidiary corporations; the free flow of capital and technology; the equitable and nondiscriminatory treatment of foreign firms, individuals, and products; the right of travel residence; the payment of just compensation for property taken by the state, the privilege of acquiring and owing real estate; and most-favored-nation trading status for goods. The self-executing nature of FCN treaties is illustrated in MacNamara v. Korean Air Lines. This case involved a conflict between a federal statute that protects workers against discrimination in employment and the navigation treaty between Korea and the United States that allows foreign firms to give preference in hiring their own foreign nationals for executive, managerial, and technical positions. MacNamara brought this action against his former employer, Korean Air Lines (KAL), for discrimination under Title VII of the Civil Rights Act of 1969 and the U.S. Age Discrimination in Employment Act. KAL is a Korean company. MacNamara, an American citizen, was a district sales manager in Philadelphia who had worked for the defendant airline since 1974. In 1982, at age 57, he was dismissed from employment. KAL claimed that his dismissal was plan of Kal’s reorganization plan, which included merging the Philadelphia and Atlanta offices into one office located in Washington, D.C. KAL had also dismissed six American managers and replaced them with four Korean citizens. The Korean citizen who replaced MacNamara was 42 years old. After exhausting his administrative remedies, MacNamara filed suit claiming that KAL had discriminated against him on the basis of race, national origin, and age. KAL moved to dismiss on the ground that its conduct was defended by the Treaty of Commerce, Navigation and Friendship between the United States and Korea. The motion to dismiss was granted and the plaintiff appealed. The Korean Navigation treaty is one of sets of commerce, navigation, and friendship treaties the United States signed with various countries after World War II. Although initially negotiated primarily for the purpose of encouraging American investment abroad, the treaties granted defence to coming from another country business operating in the USA and protected mutual rights. The specific provision of the Korean FCN treaty relied upon by KAL in this case provides as follows: “Nationals and companies of either party shall be permitted to engage, within the territories of the other party, accountants and other technical experts, executive personnel, attorneys, agents, and other specialists of their choice.” (Article VII (1)) We agree with the Courts that Article VII(1) goes beyond securing the right to be treated the same as domestic companies and that its purpose, in part, is to assure foreign corporations that they may have their business in the host country managed by their own nationals if they desire. We also agree with the conclusion of the Sixth Circuit Court of Appeals that Article VII(1) was not intended to provide foreign business with shelter from any law applicable to personnel decisions other than those that would logically or pragmatically conflict with the right to select one’s own nationals as managers because of their citizenship. Insofar as Title VII and the ADEA proscribe intentional discrimination on the basis of race, national origin, and age we perceive no theoretical or practical conflict between them and the right conferred by Article VII (1). Thus, for example, we believe that a foreign business may not deliberately undertake to reduce the age of its workforce by replacing older American with younger foreign nationals. On the other hand, to the extent Title VII and the ADEA proscribe personnel decisions based on citizenship solely because of their disparate impact an older managers, a particular racial group, or persons whose ancestors are not from the foreign country involved, we perceive a potential conflict and conclude that it must be resolved in favor of Article VII(1). Having concluded that KAL cannot purposefully discriminate on the basis of age, race, or national origin, we now turn to the most difficult aspect of this case. To this point we have confined our analysis to liability for intentional discrimination. The reach of Title VII and the ADEA, however, extends beyond intentionally discriminatory employment policies to those practices fair in form, but discriminatory in operation. Title VII and the ADEA liability can be found where facially neutral employment practices have a discriminatory effect of “disparate impact” on protected groups, without proof that employer adopted these practices with a discriminatory motive. The fact that empirical evidence can satisfy the substantive standard of liability would a substantial problem in disparate impact litigation for corporations hailing from countries, including perhaps Korea, whose populations are largely homogeneous. Because a company’s requirement that its employees be citizens of the homogeneous country from which it hails means that almost all of its employees will be of the same national origin and race, the statistical disparity between otherwise qualified noncitizens of national origin and a particular race, and people of national origin and the foreign country’s race is probable to be important. As a result, a foreign business from a country with a homogeneous population, by merely exercising its protected treaty right to prefer its own citizens for management positions, could be held in violation of Title VII. Thus, unlike a disparate treatment case where liability can not be imposed without an affirmative finding that the employer was not simply exercising its Article VII(1) right, a disparate treatment case can result in liability where the employer did nothing more than exercise that right. For this reason we come to conclusion that discordant influence liability under the ADEA and Title VII for a foreign worker founded on its working of hiring its own countrymen as managers cannot be reconciled with Article VII(1). Accordingly, we hold that such liability may not be imposed. Decision. The Court of Appeals reversed and remanded for a trial on the question of whether KAL’s discriminatory treatment was intentional. The court ruled that FCN treaty that authorized foreign employers to engage executives and technical specialist “of their choice” granted a limited exemption to U.S. anti-discrimination laws on the basis of citizenship. Although the treaty does not grant foreign employers a blanket exception to the civil rights laws and employers are liable for intentional discrimination (disparate treatment) on the basis of race, national origin, or age, the treaty permits foreign employers to retain their own nationals in executive and technical positions even where the effect of such personnel decisions is discriminatory and would other wise subject the employer to disparate impact liability under the law. In a U.S. Supreme Court decision relied upon by the MacNamara court, Sumitomo v. Avagliano, 457 U.S. 176 (1982), it was held that Navigation treaty between Japan and the United States did not provide immunity to a Japanese trading company for liability under Title VII of the Civil Rights Act of 1964. In Sumitomo the Court ruled that because the employer was a completely American owned subsidiary of a company of Japan, incorporated under the laws of the United States, it was not a Japanese company but a U.S. one. Thus, it was not entitled to protection under the treaty.