{"id":10829,"date":"2025-03-28T12:58:01","date_gmt":"2025-03-28T16:58:01","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/ilj\/?p=10829"},"modified":"2025-03-28T13:33:56","modified_gmt":"2025-03-28T17:33:56","slug":"the-charming-betsy-canon-time-to-ride-the-tide-of-loper-bright","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2025\/03\/the-charming-betsy-canon-time-to-ride-the-tide-of-loper-bright\/","title":{"rendered":"The Charming Betsy Canon: Time to Ride the Tide of Loper Bright"},"content":{"rendered":"

Michael Jacobson* & Stephen Finan**<\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The <\/span>Charming Betsy <\/span><\/i>canon of interpretation, articulated by the U.S. Supreme Court in 1804, <\/span>states<\/span><\/a> that \u201c[a]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.\u201d\u00a0 The Supreme Court has never caveated or altered this longstanding canon of interpretation.\u00a0 And yet, various court decisions in recent years have taken different approaches to interpreting and applying this canon in cases involving international law.\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0In the past, courts\u2019 potential application of the <\/span>Charming Betsy<\/span><\/i> canon in cases arising out of government agency action may have come into conflict with the Supreme Court\u2019s standard of deference to agencies\u2019 interpretations of ambiguous statutes under <\/span>Chevron v. NRDC<\/span><\/i><\/a>.\u00a0 However, last year the Supreme Court overturned <\/span>Chevron<\/span><\/i> deference and replaced it with a new standard in <\/span>Loper Bright\u00a0Enterprises v. Raimondo<\/span><\/i><\/a>.<\/span>\u00a0 <\/span>Now, \u201c[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority\u201d irrespective of an agency\u2019s interpretation.\u00a0 The Supreme Court explained that lower courts shall read an ambiguous statute \u201c[as] if no agency were involved\u201d and determine \u201cthe best reading\u201d \u201cafter applying all relevant interpretive tools.\u201d1<\/a><\/sup>1 The Court held that \u201ccourts need not and under the [Administrative Procedure Act] may not defer to an agency interpretation of the law simply because a statute is ambiguous.\u201d<\/span><\/span>\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0This sea change in administrative law compels courts to stop deferring to strained agency interpretations of law when a better reading exists.\u00a0 Courts are now likely to lean more on traditional forms of statutory interpretation.\u00a0 In doing so, the <\/span>Charming Betsy<\/span><\/i> canon elevates the importance of reading statutes in a manner that is in accordance with relevant international law as courts determine the best reading of a statute.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0In this article, we explore the future of the <\/span>Charming Betsy<\/span><\/i> canon of interpretation in a post-<\/span>Loper Bright<\/span><\/i> world.\u00a0 This issue is particularly timely as the Trump Administration has announced new trade-restrictive actions relying upon novel legal authorities.\u00a0 The new administration imposed tariffs on <\/span>Canada<\/span><\/a> and <\/span>Mexico<\/span><\/a> (following a 30-day pause) for the stated purpose of stemming immigration and fentanyl flows into the United States before removing and delaying those tariffs again, imposed additional new tariffs on <\/span>China<\/span><\/a> for the same reason<\/span>, imposed expanded tariffs on imported <\/span>steel<\/span><\/a> and <\/span>aluminum<\/span><\/a>, and took initial steps to implement <\/span>\u201creciprocal\u201d tariffs<\/span><\/a> to \u201ccorrect longstanding imbalances in international trade and ensure fairness across the board.\u201d\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Trade-restrictive measures are commonly implemented through agency action, and thus reviewing courts may be applying the <\/span>Loper Bright<\/span><\/i> standard of statutory interpretation.\u00a0 In doing so, the courts may need to assess how best to apply the <\/span>Charming Betsy<\/span><\/i> canon of interpretation as they seek the best meaning of a statute.\u00a0\u00a0\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0This article proceeds as follows.\u00a0 First, we provide a brief summary of the <\/span>Charming Betsy <\/span><\/i>canon of interpretation, including its scope and usefulness to courts\u2019 statutory interpretation.\u00a0 Next, we examine different instances where courts have recently applied (or not applied) the <\/span>Charming Betsy<\/span><\/i> canon under various types of international law.\u00a0 Then, we look back to the <\/span>Solar Safeguards <\/span><\/i>case involving imports from Canada, which arose out of one of the first trade-restrictive measures imposed by the Trump Administration, in early 2018.\u00a0 This case provides an example of a court\u2019s decision to disregard <\/span>Charming Betsy <\/span><\/i>arguments and uphold the government\u2019s action, despite on-point international law that disallowed such action.\u00a0 Indeed, an international tribunal later read the relevant international law in a manner that led to a reversal of the underlying agency decision.\u00a0 We then look ahead to <\/span>Charming Betsy<\/span><\/i>\u2019s increased pertinence following the <\/span>Loper Bright<\/span><\/i> decision.\u00a0 Finally, we set forth a step-by-step guide to applying the <\/span>Charming Betsy <\/span><\/i>canon that courts should consider employing in a post-<\/span>Chevron<\/span><\/i> world.<\/span><\/p>\n

I. A Summary of the <\/span><\/b>Charming Betsy<\/i><\/b> Canon of Interpretation<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The <\/span>Charming Betsy <\/span><\/i>canon of interpretation <\/span>states<\/span><\/a> that \u201c[a]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.\u201d\u00a0 There are a few key elements to this canon of interpretation for courts to consider when applying it.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Crucially, this canon only applies when there is a \u201claw of nations\u201d\u2014or international law\u2014that is relevant to the case.\u00a0 Although the Supremacy Clause of the Constitution elevates treaties as the \u201csupreme Law of the Land\u201d on par with federal statutes2<\/a><\/sup>2 In fact, as explained by Sec. 115 of the U.S. Foreign Relations Restatement, treaties \u201csupersede[] as domestic law any inconsistent preexisting provision of a law or treaty of the United States.\u201d<\/span><\/span> (and enacted with signature of the President and agreement of two-thirds of the Senate), other sources of international law are equally applicable under the <\/span>Charming Betsy<\/span><\/i> canon as \u201claws of nations.\u201d3<\/a><\/sup>3 See, e.g.<\/i>,\u00a0Trans World Airlines, Inc. v. Franklin Mint Corp<\/i>., 466 U.S. 243, 252 (1984) (applying the Charming Betsy<\/i> canon to avoid conflict with a treaty); Fed. Mogul Corp. v. United States<\/i>, 63 F.3d 1572, 1581-82 (Fed. Cir. 1995) (applying the Charming Betsy canon to avoid conflict with a Congressional-Executive agreement); Weinberger v. Rossi<\/i>, 456 U.S. 25, 32 (1982) (applying the Charming Betsy<\/i> canon to avoid conflict with an executive agreement concluded without congressional approval).<\/span><\/span> One important category of international agreements that <\/span>applies<\/span><\/a> under <\/span>Charming Betsy<\/span><\/i> are trade agreements which are enacted under U.S. law as Congressional-Executive Agreements.\u00a0 These agreements are signed by the President and voted into law by both the House and the Senate.\u00a0 Prominent trade agreements enacted as Congressional-Executive Agreements include, for example, the <\/span>North American Free Trade Agreement (\u201cNAFTA\u201d)<\/span><\/a> and the subsequent <\/span>United States-Mexico-Canada Agreement (\u201cUSMCA\u201d)<\/span><\/a> between the United States, Canada, and Mexico, as well as the <\/span>Agreements of the World Trade Organization (\u201cWTO\u201d)<\/span><\/a>.\u00a0 There are also other sources of international law that might be relevant to a <\/span>Charming Betsy <\/span><\/i>analysis and that require less involvement of Congress, such as Executive Agreements (which do not require congressional action) and customary international law.\u00a0 For example, the <\/span>Vienna Convention on the Law of Treaties<\/span><\/a> has never been enacted by the United States but is a widely accepted source of customary international law that is used to interpret treaties and may be relevant in the <\/span>Charming Betsy<\/span><\/i> context.\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Additionally, the <\/span>Charming Betsy<\/span><\/i> canon advises courts to avoid conflict between U.S. federal law and international law wherever possible.\u00a0 The 1988 U.S. Foreign Relations Restatement Section 115 explains the need to \u201creconcile[]\u201d acts of Congress with international law and that courts \u201cwill endeavor to construe them so as to give effect to both.\u201d4<\/a><\/sup>4 Restatement (Third) of the Foreign Relations Law of the United States, \u00a7 114 (1987). <\/span><\/span> Courts are tasked to read international law in congruence with U.S. law.\u00a0 The best reading of a statute is one that does not violate international law.\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0It is possible that there are rare instances in which no possible construction of a statute allows it to be read in congruence with international law.\u00a0 For example, if a statute is clear\u2014previously known as <\/span>Chevron <\/span><\/i>\u201cStep 1\u201d\u2014then courts may choose to apply that clear meaning irrespective of international law.5<\/a><\/sup>5 \u201c[A]n unambiguous statute will prevail over a conflicting international obligation.\u201d Timken Company v. United States<\/i>, 240 F. Supp. 2d 1228, 1240 (Ct. Int\u2019l Trade 2002) (citing Fed.Mogul Corp. v. United States<\/i>, 63 F.3d 1572, 1581 (Fed. Cir. 1995)); see also<\/i> Corus Staal BV. v. United States<\/i>, 593 F. Supp. 2d 1373, 1385 (Ct. Int\u2019l Trade 2008) (holding that Charming Betsy<\/i> did not apply in the case because there were clear statutory requirements and Federal Circuit precedent). <\/span><\/span> In addition, statutes could expressly provide for a means of interpretation or context to avoid ambiguity.\u00a0 However, where statutes are ambiguous, <\/span>Charming Betsy<\/span><\/i> should apply.6<\/a><\/sup>6 The Timken<\/i> court notes \u201can ambiguous statute should be interpreted so as to avoid conflict with international obligations.\u201d<\/span><\/span><\/p>\n

II. Although courts generally apply the Charming Betsy <\/em>canon, different federal judges have taken divergent approaches to how they apply it.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0More than 200 years after the Supreme Court\u2019s decision in <\/span>Charming Betsy<\/span><\/i>, courts across the federal system continue to find this interpretative canon applicable.7<\/a><\/sup>7 See, e.g.,<\/i> Weinberger v. Rossi<\/i>, 456 U.S. 25, 32 (1982); Fed. Mogul Corp. v. United States<\/i>., 63 F.3d 1572, 1575 (Fed. Cir. 1995); Allegheny Ludlum Corp. v. United States<\/i>, 367 F.3d 1339 (Fed. Cir. 2004).<\/span><\/span> \u201c[D]eeply embedded in American jurisprudence,\u201d<\/span><\/a> Charming Betsy<\/span><\/i> is <\/span>\u201ca rule of statutory construction sustained by an unbroken line of authority.\u201d<\/span><\/a>\u00a0 As the Supreme Court <\/span>noted<\/span><\/a> in 1988, Charming Betsy \u201chas for so long been applied by this Court that it is beyond debate.\u201d\u00a0 In fact, Justice Neil Gorsuch <\/span>cited approvingly<\/span><\/a> to the doctrine in a 2023 dissenting opinion.\u00a0 Similarly, Justice Amy Coney Barrett <\/span>expressed approval<\/span><\/a> of the doctrine prior to taking the bench as a helpful tool for textualist jurists.8<\/a><\/sup>8 Justice Barrett concluded that \u201c[a]t least when a substantive canon promotes constitutional values, the judicial power to safeguard the Constitution can be understood to qualify the duty that otherwise flows from the principle of legislative supremacy.\u201d<\/span><\/span>\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Despite widespread acceptance of this canon, courts have not applied the canon in a uniform manner.\u00a0 Below we review the various ways the doctrine has been interpreted and applied by the courts.\u00a0<\/span><\/p>\n

a. Federal courts regularly apply <\/span><\/b>Charming Betsy<\/i><\/b> in cases not involving international trade agreements.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Judges readily apply <\/span>Charming Betsy<\/span><\/i> to interpret statutes in accordance with international obligations, particularly in non-trade contexts.\u00a0 If a statute is ambiguous, courts generally employ <\/span>Charming Betsy<\/span><\/i> as an interpretative tool to determine the best meaning of the statute.\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0For example, in <\/span>Weinberger v. Rossi<\/span><\/i>, the Supreme Court <\/span>reviewed<\/span><\/a> a statute that prohibited employment discrimination against U.S. citizens at overseas military installations, \u201cunless such discrimination [was] permitted by a \u2018treaty\u2019 between the United States and the host country.\u201d\u00a0 At the time of the statute\u2019s passing, the U.S. had an existing agreement with the Philippines to provide Filipino citizens with preferential treatment for employment.\u00a0 The question before the Supreme Court was whether the term \u201ctreaty\u201d should be understood as it appears in the Constitution or whether it also encompasses executive agreements like the Base Labor Agreement between the U.S. and Philippines.\u00a0 The Supreme Court ultimately applied the <\/span>Charming Betsy<\/span><\/i> canon to interpret the statute in a manner that avoided conflict with U.S. international obligations under the executive agreement.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0There are several other examples.\u00a0 In<\/span> a case involving international tax law, the Court of Federal Claims <\/span>applied<\/span><\/a> the <\/span>Charming Betsy<\/span><\/i> canon to \u201cto interpret [a domestic statute] not to conflict with the provision of a foreign tax credit under paragraph 2(b) of Article 24 of the 1994 Treaty.\u201d\u00a0 In a case involving intellectual property rights, <\/span>Fox Television Stations, Inc. v. Aereokiller<\/span><\/i>, <\/span>LLC<\/span><\/i>, the Ninth Circuit <\/span>applied<\/span><\/a> the <\/span>Charming Betsy<\/span><\/i> canon to conclude that interpreting\u00a0\u00a7 111\u00a0of the Copyright Act so as to include Internet-based retransmission services would risk putting the U.S. in violation of certain treaty obligations.\u00a0 And, in a case involving terrorism and UN agreements, <\/span>United States v. Palestine Liberation Organization<\/span><\/i>, the U.S. District Court for the Southern District of New York <\/span>strained<\/span><\/a> to find an unambiguous statute ambiguous, applying the <\/span>Charming Betsy<\/span><\/i> canon to interpret the statute in a manner that did not conflict with U.S. international obligations.9<\/a><\/sup>9 The Court found the text of the Anti-Terrorism Act of 1987 ambiguous where it made it illegal for the Palestinian Liberation Organization, \u201cnotwithstanding any provision of law to the contrary, to establish or maintain an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States\u201d and applying Charming Betsy<\/i> as it conflicts with a UN Treaty providing that \u201cfederal, state or local authorities of the United States [would] not impose any impediments to transit to or from the headquarters district by the United Nations . . . on official business.\u201d <\/span><\/span> The Court unequivocally stated: \u201cthis court is under a duty to interpret statutes in a manner consonant with existing treaty obligations.\u201d\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Clear and consistent application of this canon appears to be uncontroversial and consistent when trade agreements are not the source of international law.<\/span><\/p>\n

b. Charming Betsy<\/i><\/span><\/b> is not useful where the statute is clear.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Most courts also agree as to when <\/span>Charming Betsy<\/span><\/i> does not apply\u2014where the statute is clear, international law will not override that clear meaning.10<\/a><\/sup>10 Comm. Overseeing Action for Lumber Int\u2019l Trade Investigations of Negotiations v. United States<\/i>, 483 F.Supp.3d 1253 (Ct. Int\u2019l Trade 2020) (citing Chevron<\/i>, U.S.A, Inc. v. Natural Res. Def. Council, Inc<\/i>. 467 U.S. 837, 842-43 (1984) (\u201c[w]hen, as here, the court concludes that Congress\u2019s intent is clear, \u2018that is the end of the matter\u2019 [] the court \u2018must give effect to the unambiguously expressed intent of Congress.\u2019\u201d); Government of Quebec v. United States<\/i>, 105 F.4th 1359 (Fed. Cir. 2024) (choosing not to apply Charming Betsy<\/i> where the statute was clear); Nippon Steel Corp. v. United States<\/i>, 732 F. Supp. 3d 1353 (Ct. Int\u2019l Trade 2024) (choosing not to apply Charming Betsy<\/i> where \u201cCongress has spoken clearly.\u201d).<\/span><\/span> In <\/span>Nippon Steel Corp. v. United States<\/span><\/i>, the U.S. Court of International Trade (\u201cCIT\u201d) <\/span>concluded<\/span><\/a> that \u201c[t]he Charming Betsy canon is a canon of statutory interpretation\u2014not a matter of constitutional law\u2014and therefore it is \u2018not [a] mandatory rule[].\u2019 Congress is free to override the canon via legislation.\u201d\u00a0 Nippon Steel\u2019s arguments failed because Congress had spoken.\u00a0 Similarly, in <\/span>Government of Quebec v. United States<\/span><\/i>, the U.S. Court of Appeals for the Federal Circuit (\u201cFederal Circuit\u201d) <\/span>concluded<\/span><\/a> that the statutory language is clear and therefore, <\/span>Charming Betsy<\/span><\/i> was inapplicable.\u00a0 This rule of application stems from the understanding that <\/span>Charming Betsy<\/span><\/i> \u201c<\/span>acts as a rebuttable presumption<\/span><\/a> that Congress did not intend to place the United States in breach of international law\u201d and to rebut that presumption, Congress <\/span>must provide<\/span><\/a> an \u201caffirmative expression of congressional intent.\u201d\u00a0 Where congressional intent to diverge from international obligations is clear, Congress has rebutted the presumption against breach.<\/span><\/p>\n

c. The CIT and the Federal Circuit have applied <\/b>Charming Betsy<\/i><\/b> in different ways in various cases involving trade agreements.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Different cases before the federal courts that hear issues involving tariffs and trade measures\u2014the CIT and the Federal Circuit\u2014have taken varied approaches to the <\/span>Charming Betsy<\/span><\/i> canon.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0For example, in <\/span>Federal-Mogul<\/span><\/i>, the Federal Circuit faithfully <\/span>applied<\/span><\/a> the <\/span>Charming Betsy <\/span><\/i>canon in a case involving antidumping duties.\u00a0 The court found that where \u201cthe Act presented [the agency] with a choice between methodologies for calculating dumping margins\u201d and \u201c[t]ax-neutral methodologies clearly accord with international economic understandings,\u201d the court should not read a violation of an international obligation into the statute and should interpret the statute in a manner consistent with those international obligations.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0However, the Federal Circuit in <\/span>Allegheny Ludlum Corp. v. U.S.<\/span><\/i> took<\/span><\/a> a somewhat different approach.\u00a0 In that case, the court was tasked with determining whether the sale of a steel company\u2019s assets from the French government to private individuals could extinguish pre-sale subsidies.\u00a0 In determining that 19 U.S.C. \u00a7 1677(5)(F) does not distinguish between an asset sale and stock sale, the Federal Circuit found that the \u201ctrial court correctly grounded its judgement in the statute and this court\u2019s precedent,\u201d however went further and concluded \u201c[a]nother consideration also supports the trial court\u2019s analysis . . . Section 1677(5)(F) \u2018must be interpreted to be consistent with [international] obligations.\u2019\u201d\u00a0 The court found that disparate treatment under [Commerce\u2019s] methodology would contravene a WTO appellate body report <\/span>\u201cspecifically reject[ing] the argument that sales of assets should be treated differently from sales of stock for assessing countervailing duties.\u201d\u00a0 The court thus recognized <\/span>Charming Betsy<\/span><\/i> as a \u201cguideline that supports the trial court\u2019s judgment.\u201d11<\/a><\/sup>11 Similarly, in Meyer Corporation v. United States<\/i>, the Federal Circuit used Charming Betsy principles to further support the conclusion that 19 U.S.C. \u00a7 1401a does not require a Thai manufacturer to show its \u201cfirst-sale\u201d price was unaffected by Chinese nonmarket economy influences (arguing \u201c[f]urther, the trade laws \u2018must be interpreted to be consistent with [international] obligations, absent contrary indications in the statutory language or its legislative history.\u201d) 43 F.4th 1325 (Fed. Cir. 2022).<\/span><\/span>\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0In addition, Judge Restani of the CIT in a <\/span>law review article<\/span><\/a> took a somewhat different view of how to apply <\/span>Charming Betsy<\/span><\/i> principles to statutory interpretation<\/span>. <\/span><\/i>\u00a0She argued that <\/span>Charming Betsy<\/span><\/i> should be used as a means to interpret legislative intent: \u201cIf the statute is unclear, but the international agreement is clear, it likely should aid the court\u2019s interpretation, but perhaps not based upon the <\/span>Charming Betsy<\/span><\/i> principles, as they have been understood.\u00a0 Rather, the statute is intended to implement the agreement, and the relevant WTO agreement may be viewed as secondary legislative history.\u201d12<\/a><\/sup>12 See also<\/i> Corus Staal BV v. U.S. Dept. of Commerce<\/i>, 259 F. Supp.2d 1253 (Ct. Int\u2019l Trade 2003) (Restani, J.) (finding that WTO decisions may help inform a court\u2019s decision, however when faced with an ambiguous statute and ambiguous international agreement, the agency interpretation controls).<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Other court decisions have taken the approach of seeking to point out conflict between U.S. law and international agreements under <\/span>Charming Betsy <\/span><\/i>analyses as a basis to disregard the international law, rather than to seek harmony between statute and international law as the age-old canon entails.\u00a0 For example, in <\/span>Nippon Steel v. United States<\/span><\/i>, the CIT cites 19 U.S.C. \u00a7 2504(a) of the Trade Agreements Act of 1979, which states that \u201c[n]o provision of any trade agreement approved by the Congress . . . which is in conflict with any statute of the United States shall be given effect under the laws of the United States\u201d to <\/span>conclude<\/span><\/a> that where \u201cthe GATT and a federal statute collide, the statute governs, sinking the <\/span>Charming Betsy<\/span><\/i> canon in the process.\u201d\u00a0 The Federal Circuit <\/span>made a similar finding<\/span><\/a> in <\/span>Corus Staal BV v. Department of Commerce<\/span><\/i>.13<\/a><\/sup>13 The Court concluded that \u201c[n]either the GATT nor any enabling international agreement outlining compliance therewith (e.g., the [Antidumping Agreement]) trumps domestic legislation; if U.S. statutory provisions are inconsistent with the GATT or an enabling agreement, it is strictly a matter for Congress.\u201d<\/span><\/span>\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0However, the <\/span>Charming Betsy<\/span><\/i> canon, as <\/span>articulated<\/span><\/a> by the Supreme Court, requires that the statute is interpreted to be consistent with the international obligation, when such \u201cpossible construction remains.\u201d\u00a0 The canon is not designed to find conflict, but instead to find harmony between statute and international law.\u00a0 As one commentator <\/span>explains<\/span><\/a>, the canon should be invoked to \u201cevaluat[e] the proper U.S. stance toward [international law]\u201d rather than give international law positive legal force.\u00a0 Indeed, in the <\/span>Federal-Mogul Corp. v. United States<\/span><\/i> decision, the Federal Circuit <\/span>acknowledged<\/span><\/a> the 19 U.S.C. \u00a7 2504(a) requirement not to give effect to a provision of a trade agreement that conflicts with statute, but noted \u201cGATT agreements are international obligations, and absent express Congressional language to the contrary, statutes should not be interpreted to conflict with international obligations.\u201d\u00a0 It is not incongruent to read statutes consistently with trade agreements.\u00a0 In particular, <\/span>19 U.S.C \u00a7 2504<\/span><\/a>, a standard provision commonly found in U.S. trade agreements\u2019 implementing legislation, does not restrict courts\u2019 ability to read statutes congruently with trade agreements, but rather reflects a core tenet of the <\/span>Charming Betsy <\/span><\/i>canon\u2014that clear statutory language controls, and that the trade agreement should be read to be consistent with statute.<\/span><\/p>\n

III. A Case Study: The <\/b>Solar Safeguards<\/i><\/b> Case<\/b><\/span>14<\/a><\/sup>14 Hogan Lovells US LLP was counsel to several different Canadian parties in the solar safeguards proceedings, including the original investigation before the U.S. International Trade Commission, the CIT, the Federal Circuit, and the USMCA Panel.<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Some of the very first trade-restrictive measures imposed by the first Trump Administration were the <\/span>global safeguard measures<\/span><\/a> on solar cells and modules.\u00a0 Leveraging authority under <\/span>Section 201 of the Trade Act of 1974<\/span><\/a>, President Trump signed a <\/span>presidential proclamation<\/span><\/a> resulting in an initial 30% tariff and an annual 2.5-gigawatt tariff-free quota.\u00a0 This was the culmination of the <\/span>first safeguards investigation<\/span><\/a> in the United States since 2001 and implicated a massive amount of annual trade, primarily imports from Southeast Asia and South Korea.15<\/a><\/sup>15 There was also a global safeguards investigation on washing machines around the same time as the solar safeguards investigation, and the remedies for both cases were imposed on the same day (February 7, 2018).<\/span><\/span> This is a useful case for a post\u2013<\/span>Loper Bright<\/span><\/i> Charming Betsy <\/span><\/i>analysis for two reasons.\u00a0 First, it involves a major trade measure imposed by the first Trump Administration and subsequent legal challenges, which gives a window into what might be ahead.\u00a0 Second, it offers a useful natural experiment on the <\/span>Charming Betsy<\/span><\/i> canon, where a reviewing court sets aside <\/span>Charming Betsy<\/span><\/i> arguments in its statutory interpretation, and later, an international tribunal came to a contrasting conclusion, interpreting the statute\u2019s best meaning through the lens of the USMCA, a source of international law.\u00a0 This case shows how courts that seek the best meaning of a statute in light of the <\/span>Charming Betsy <\/span><\/i>canon might come to a different conclusion than if they were to give deference to the government\u2019s reading or to read the statute without regard to international law.<\/span><\/p>\n

a. Overview of the <\/b>Solar Safeguards<\/i><\/b> case<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The statutory scheme for global safeguard measures can be found in <\/span>Sections 201\u2013204<\/span><\/a> of the Trade Act of 1974.\u00a0 <\/span>Global safeguards investigations<\/span> <\/a>begin before the U.S. International Trade Commission (\u201cUSITC\u201d), which investigates the market through detailed questionnaire submissions, a public, full-day hearing, and briefs from interested parties; makes a binding determination on whether to authorize safeguard measures; and then issues a nonbinding recommendation to the President on what measure(s) to impose.\u00a0 Then, the statute grants the President the authority to impose (or not impose) safeguard measures as he or she chooses, with some specific statutory limitations and constraints.\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Separately, the <\/span>NAFTA Implementation Act<\/span><\/a> provided for a distinct and specific legal test for imposition of global safeguard measures on imports from Canada and\/or Mexico.\u00a0 That legal test also can be found in the text of the NAFTA and parallel text in the subsequent USMCA, although there are important differences between the NAFTA\/USMCA and their implementing legislation, as addressed below.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0In the S<\/span>olar Safeguards<\/span><\/i> case, the USITC made affirmative findings for global imports, thereby authorizing the President to impose safeguard measures on a global basis\u2014which he did.\u00a0 However, the USITC in a 3\u20131 vote made negative findings for imports from Canada because the Commission found that imports from Canada were not a substantial share of imports nor did they contribute importantly to the serious injury caused by global imports under the NAFTA Implementation Act\u2019s separate test.\u00a0 In every other global safeguard case prior, a negative finding from the USITC ended the matter for imports from Canada (or Mexico).\u00a0 However, for the first time ever, in this case President Trump disregarded the Commission\u2019s negative findings and <\/span>imposed<\/span><\/a> safeguard measures on Canada in the same manner as were imposed on all other imports.<\/span><\/p>\n

b. U.S. court litigation arising out of the <\/span><\/b>Solar Safeguards<\/i><\/b> case<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The President\u2019s imposition of safeguard measures on imports from Canada led to litigation before the CIT, which was then appealed to the Federal Circuit.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Three Canadian solar panel producers\/exporters and a U.S. affiliated importer requested an injunction to halt application of the safeguard measure as applied to imports from Canada.\u00a0 Plaintiffs (supported by the Canadian Government as an amicus curiae) argued that the NAFTA Implementation Act was ambiguous in certain aspects and that international law\u2014the NAFTA\u2014made clear the proper interpretation of U.S. law in this case.16<\/a><\/sup>16 For example, the NAFTA Implementation Act refers to \u201cquantitative restrictions\u201d while the NAFTA text refers to \u201crestrictions\u201d when addressing a condition of imposing a safeguard on imports from Canada\u2014allowing for reasonable growth of such imports. Plaintiffs and the Government of Canada argued that the statute should be read in accordance with the NAFTA text and that the safeguard measures, which imposed restrictions on imports from Canada, should be subject to these conditions.<\/span><\/span> Notably, Article 802.5(b) of the NAFTA <\/span>expressly provides<\/span><\/a> that \u201c[n]o Party may impose restrictions on a good in [a safeguard] action . . . that would have the effect of reducing imports of such a good from a Party below the [recent] trend of imports.\u201d\u00a0 Plaintiffs argued that <\/span>Charming Betsy<\/span><\/i> should lead the court to read the statute as preventing application of safeguard measures on Canada, at least in the manner that was done in this case.17<\/a><\/sup>17 See, e.g.<\/i>, Memorandum in Support of Plaintiff\u2019s Motion for Temporary Restraining Order and Preliminary Injunction at 33\u201334, Silfab Solar v. United States<\/i>, 296 F. Supp. 3d 1295 (Ct. Int\u2019l Trade 2018) (No. 18-00023); Reply in Support of Plaintiff\u2019s Motion for Temporary Restraining Order and Preliminary Injunction at 14\u201317, Silfab Solar<\/i>, 296 F. Supp. 3d 1295 (No. 18-00023); see also<\/i> Amicus Curiae Brief of Government of Canada at 8\u201311, Silfab Solar<\/i>, 296 F. Supp. 3d 1295 (No. 18-00023).<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The CIT <\/span>upheld<\/span><\/a> the safeguard measure on imports from Canada, irrespective of these <\/span>Charming Betsy <\/span><\/i>arguments.\u00a0 The CIT instead found that the plain meaning of the statute did not require interpretation in light of the international law on point.18<\/a><\/sup>18 \u00a0Id.<\/i> at 32\u201333.<\/span><\/span> The Federal Circuit <\/span>affirmed<\/span><\/a>.\u00a0\u00a0<\/span><\/p>\n

c. The USMCA panel reached different conclusions under international law.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Separately from the court cases brought by Canadian solar producers, the Government of Canada brought a NAFTA dispute against the United States on the basis that the solar safeguards measures on imports from Canada violated <\/span>NAFTA Articles 802\u2013803<\/span><\/a>.\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Because of the difficulty of forming an international panel under the NAFTA, which plagued NAFTA state v. state dispute settlement for many years, no panel was ever formed.\u00a0 Soon after the USMCA entered into force in 2020, Canada brought a USMCA dispute on the same basis.\u00a0 Due to fixes to the panel formation process in the USMCA, a USMCA panel was quickly formed and heard this case.\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0In February 2022, the USMCA panel <\/span>unanimously ruled<\/span><\/a> in favor of Canada on all counts\u2014finding that the safeguard measures violated the USMCA.\u00a0 The USMCA panel explained that multiple aspects of the safeguard measures as applied to Canada were contrary to the text of the USMCA (which paralleled the text of the NAFTA).19<\/a><\/sup>19 \u201cThe Panel doubts that the United States\u2019 claim that the applied measure was structured to ensure no reduction in imports from Canada despite the substantial increase in tariffs or that the measure allowed for reasonable growth in Canadian imports by means of geographical proximity would satisfy the test under Article 10.2.5(b). Such argument is inconsistent with the reading of the clear prohibition in Article 10.2.5 (\u201cNo Party may impose restrictions that . . .\u201d), requiring some action to ensure that the conditions of 10.2.5(b) are met. The Panel doubts that a passive acknowledgement of the geographical proximity of Canada (and Mexico) to the U.S. market would constitute an \u201callowance for reasonable growth\u201d within the meaning of Article 10.2.5 (b).\u201d<\/span><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Several months after the USMCA panel\u2019s decision, the United States and Canada <\/span>entered into<\/span><\/a> a memorandum of understanding (\u201cMOU\u201d) that included removal of the safeguard tariffs on imports from Canada.\u00a0 Following this MOU, imports of solar panels from Canada were permitted to enter without regard to any safeguard\u2014four and a half years after they were imposed in a manner that was upheld by the CIT and Federal Circuit, but ultimately found to be in violation of the USMCA.<\/span><\/p>\n

d. Takeaways from the <\/span><\/b>Solar Safeguards<\/i><\/b> dispute<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0The solar safeguards dispute is a prominent example of the importance of the <\/span>Charming Betsy <\/span><\/i>canon in assisting U.S. courts to find the best meaning of a statute.\u00a0 If the courts had applied the <\/span>Charming Betsy <\/span><\/i>canon and read the NAFTA Implementation Act in concert with the on-point international law contained in the NAFTA, the courts may have come to a different conclusion and avoided several years of application of an unlawful measure and irreversible economic damage.\u00a0<\/span><\/p>\n

IV. Chevron<\/i><\/b> and <\/b>Charming Betsy<\/i><\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Until June of 2024, courts had long applied <\/span>Chevron<\/span><\/i>\u2019s two-step analysis when reviewing agency interpretations of statutes.\u00a0 Generally, where an agency advocated a statutory construction that comported with the relevant international obligation, <\/span>\u201c<\/span>Charming Betsy<\/span><\/i> and <\/span>Chevron<\/span><\/i> simply reinforce[d] each other.\u201d<\/span><\/a>\u00a0 When courts reviewed agency interpretations that conflicted with clear international obligations, courts typically applied <\/span>Chevron<\/span><\/i>, at the expense of the <\/span>Charming Betsy<\/span><\/i> doctrine.\u00a0 Below, we review how courts interpreted ambiguous statutes that conflicted with international obligations under <\/span>Chevron<\/span><\/i> and then look at how their methods of interpretation may change, now unbridled by the defunct <\/span>Chevron<\/span><\/i> deference doctrine.<\/span><\/p>\n

a. Some courts found that <\/span><\/b>Charming Betsy<\/i><\/b> should be read in conjunction with <\/b>Chevron<\/i><\/b>.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Some courts <\/span>read<\/span><\/a> the two doctrines \u201cin tandem\u201d by generally incorporating the <\/span>Charming Betsy<\/span><\/i> canon into <\/span>Chevron<\/span><\/i>\u2019s Step 2 analysis.\u00a0 While <\/span>Chevron<\/span><\/i> states that a court should normally defer to an agency\u2019s reasonable interpretation, the CIT has <\/span>found<\/span><\/a> that \u201cwhere international obligations arise, the reasonability of the agency\u2019s interpretation must be gauged against such obligations.\u201d\u00a0 When applying <\/span>Charming Betsy<\/span><\/i>, courts have <\/span>generally imported<\/span><\/a> the canon into <\/span>Chevron<\/span><\/i> Step 2 as an aid to determine whether the agency\u2019s interpretation is reasonable.\u00a0 If the agency\u2019s interpretation conflicts with a clear international obligation, courts have <\/span>found<\/span><\/a> the agency\u2019s interpretation of the statute to be unreasonable.20<\/a><\/sup>20 Courts have used Charming Betsy<\/i> as a statutory tool of interpretation to construe a statute contrary to the agency\u2019s \u201cproffered construction.\u201d<\/span><\/span><\/p>\n

b. Some courts found that <\/b>Chevron<\/i><\/b> took precedence over <\/b>Charming Betsy<\/i><\/b>.<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Some courts and commentators alike have advocated for an approach where, even in the face of clear conflicting international obligations, an agency\u2019s interpretation of an ambiguous statute takes primacy over <\/span>Charming Betsy<\/span><\/i>.\u00a0 In <\/span>Suramerica de Aleaciones Laminadas, C.A. v. United States<\/span><\/i>, the Federal Circuit <\/span>held<\/span><\/a> that \u201c[if] Commerce\u2019s interpretation of its statutory power falls within the range of permissible construction . . . that ends our inquiry . . . [E]ven if we were convinced that Commerce\u2019s interpretation conflicts with the [General Agreement on Tariffs and Trade],\u00a0 which we are not, the GATT is not controlling.\u201d\u00a0 Other courts have been <\/span>hesitant to upset<\/span><\/a> Chevron<\/span><\/i> deference \u201cunless the conflict between an international obligation and Commerce\u2019s interpretation of a statute is abundantly clear.\u201d\u00a0 Both the<\/span> Tenth Circuit<\/span><\/a> and <\/span>First<\/span><\/a> Circuit<\/span><\/a> chose not to apply the <\/span>Charming Betsy<\/span><\/i> canon where it arguably could have, ultimately resolving the matter on <\/span>Chevron<\/span><\/i> grounds.\u00a0 Indeed, the First Circuit <\/span>noted<\/span><\/a> the majority\u2019s \u201cfailure to adequately consider the <\/span>Charming Betsy<\/span><\/i> question and the tension between the agency\u2019s interpretation in this case and U.S. treaty commitments.\u201d21<\/a><\/sup>21 The First Circuit concluded \u201cthere is no reason why the judiciary, as a co-equal branch of government, should interpret a statute in such a way that would violate a treaty, absent a clear showing by Congress that it desires this result.\u00a0 Applying the Charming Betsy<\/i> canon is therefore consistent with the judiciary’s role to \u2018say what the law is.\u2019\u201d<\/span><\/span> Similarly, Professor Cass Sunstein and Judge Eric Posner have <\/span>posited<\/span><\/a> that, as an \u201cinternational relations doctrine,\u201d <\/span>Charming Betsy<\/span><\/i> should yield to <\/span>Chevron<\/span><\/i> deference when interpreting statutes related to foreign relations because the executive \u201cis in the best position to balance the competing interests\u201d of the nation and has \u201cbetter information about the consequences of violating international law.\u201d\u00a0 International Law Scholar and Professor Curtis Bradley, who has written extensively on <\/span>Charming Betsy, <\/span><\/i>has also <\/span>prioritized<\/span><\/a> Chevron,<\/span><\/i> arguing that <\/span>Charming Betsy<\/span><\/i> \u201cshould not trump <\/span>Chevron<\/span><\/i> deference, at least where there is a \u2018controlling executive act.\u2019\u201d\u00a0 Justice Kavanaugh as a judge on the D.C. Circuit (who joined the majority in <\/span>Loper Bright<\/span><\/i> in overturning <\/span>Chevron<\/span><\/i>) had previously <\/span>taken the view<\/span><\/a> that <\/span>Chevron<\/span><\/i> should be given priority.22<\/a><\/sup>22 Justice Kavanaugh found that \u201c[t]he basic reason is that the Executive\u2014not international law or an international tribunal\u2014possesses the authority in the first instance to interpret ambiguous statutes and to determine how best to weigh and accommodate international-law principles not clearly incorporated in the statute.\u201d<\/span><\/span>\u00a0<\/span><\/p>\n

c. Applying <\/span><\/b>Charming Betsy <\/i><\/b>in a post-<\/b>Chevron<\/i><\/b> world<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0On June 28, the Supreme Court <\/span>uttered<\/span><\/a> the already infamous words: \u201c<\/span>Chevron<\/span><\/i> is overruled.\u201d\u00a0 The decision was premised on a separation of powers argument that \u201cthe Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches.\u201d\u00a0 The Court\u2019s holding repeatedly points to <\/span>Marbury v. Madison<\/span><\/i>, which concluded that it is the province of the courts to say what the law is, but it also looked to Section 706 of the Administrative Procedures Act which \u201ccodifies for agency cases the unremarkable, yet elemental proposition . . . that courts decide legal questions by applying their own judgment.\u201d<\/span><\/p>\n

\u00a0 \u00a0 \u00a0The <\/span>Loper Bright <\/span><\/i>decision <\/span>rids courts<\/span><\/a> of the need to defer to agencies when conducting their independent judicial review of questions of law.\u00a0 In addition to these signals, the Court <\/span>presses<\/span><\/a> lower courts to \u201capply[] all relevant interpretive tools\u201d to determine the \u201cbest\u201d interpretation of the statute.<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Courts <\/span>typically employ<\/span><\/a> five types of interpretive tools to \u201csay what the law is.\u201d\u00a0 In a post-<\/span>Chevron<\/span><\/i> world, all five interpretative tools become more important and will be increasingly relied on.\u00a0 First, courts may <\/span>look to<\/span><\/a> the statutory text to determine a term\u2019s ordinary meaning\u2014\u201cwhat the text would convey to a reasonable English user in the context of everyday communication.\u201d23<\/a><\/sup>23 See also<\/i> Frank H. Easterbrook, The Role of Original Intent in Statutory Construction<\/i>, 11 Harv. J.L. & Pub. Pol\u2019y 59, 61 (1988) (\u201cMeaning comes from the ring the words would have had to a skilled user of words at the time, thinking about the same problem.\u201d).<\/span><\/span> Judges may <\/span>leverage<\/span><\/a> dictionaries or books to better understand the word\u2019s ordinary usage.24<\/a><\/sup>24 \u00a0In a dissenting opinion, Justice Scalia used a dictionary definition to interpret the word \u201cuse.\u201d<\/span> <\/span>Second, courts may turn to the broader statutory context of the law, including how the term is used elsewhere in the statute or how the statute is structured.\u00a0 Third, courts can review the statute\u2019s legislative history to decipher congressional intent.\u00a0 Fourth, courts may consider past practices or future scenarios. More specifically, a court could look at how an agency enforced a law previously or how a particular statutory interpretation may operate in the future.\u00a0 Fifth, and most important for our purposes, judges may <\/span>choose to<\/span><\/a> leverage various canons of construction\u2014presumptions about how courts should read the text of a statute that \u201chave been touted for centuries as neutral rules of thumb for reliably interpreting statutes.\u201d\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Unbridled by <\/span>Chevron<\/span><\/i>, courts will increasingly rely on substantive canons like <\/span>Charming Betsy<\/span><\/i> to interpret the \u201cbest\u201d meanings of statutes.\u00a0 <\/span>Charming Betsy<\/span><\/i> requires courts to harmonize an ambiguous statute with U.S. international obligations whenever possible.\u00a0 <\/span>Charming Betsy<\/span><\/i> says the \u201cbest\u201d interpretation of the statute is the one that does not conflict with international law.\u00a0 When interpreting ambiguous statutes, which courts are often called to do, they should turn to canons of interpretation including the <\/span>Charming Betsy<\/span><\/i> canon as a first step in determining the \u201cbest\u201d reading of the statute.\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Substantive canons <\/span>have<\/span><\/a> \u201clong been a prominent feature of American, as well as English, statutory interpretation\u201d and \u201chave been and continue to be routinely invoked by federal and state courts.\u201d\u00a0 However, substantive canons are not without their critics.\u00a0 Professor Bradley <\/span>argues<\/span><\/a> that there are three principal criticisms of canons: 1)\u00a0canons do not effectively constrain judicial decision-making; 2)\u00a0canons do not always represent likely congressional intent and 3)\u00a0canons promote judicial activism as judges may use them to ignore the plain meaning of statutes.\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Certain elements of the <\/span>Charming Betsy<\/span><\/i> canon insulate it from criticisms in a post-<\/span>Chevron <\/span><\/i>world.\u00a0 First, as Professor Curtis Bradley <\/span>notes<\/span><\/a>, many of these historical critiques have been countered by recent \u201cacademic and judicial support\u201d finding that normative canons like <\/span>Charming Betsy<\/span><\/i> \u201crepresent value choices by the [c]ourt\u201d that are \u201cdefensible . . . to the extent that good substantive and institutional arguments can be advanced on their behalf.\u201d\u00a0 Similarly, Justice Barrett has <\/span>acknowledged<\/span><\/a> that a textualist\u2019s obligation of faithful agency to Congress is qualified by substantive canons which serve to uphold constitutional values.\u00a0 <\/span>Charming Betsy<\/span><\/i> represents a canon that is applied not to further policy prerogatives but rather to reinforce institutional values.\u00a0 The canon is \u201c<\/span>a means<\/span><\/a> of both respecting the formal constitutional roles of Congress and the President and preserving a proper balance and harmonious working relationship between the three branches.\u201d\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Second, <\/span>Charming Betsy<\/span><\/i> is a doctrine as old as the Republic.\u00a0 In <\/span>Loper Bright<\/span><\/i>, Justice Gorsuch <\/span>seemed to challenge<\/span><\/a> the dissent\u2019s implication, that with overruling <\/span>Chevron<\/span><\/i>, the Court was getting rid of all substantive canons, by differentiating the deference doctrine from other \u201cinterpretative rules that have guided federal courts since the Nation\u2019s founding.\u201d\u00a0 While the Supreme Court formally announced the <\/span>Charming Betsy <\/span><\/i>canon in 1804,25<\/a><\/sup>25 In fact, Charming Betsy<\/i> was not even the first American case to articulate the underlying principle that statutes should be read in harmony with international obligations.\u00a0 See<\/i> Jones v. Walker<\/i>, 13 F. Cas. 1059, 1064 (C.D. Va. 1800) (concluding it would be \u201ccontrary to the laws and practice of civilized nations\u201d to construe a statute to prohibit British subjects to bring suits in Virginia courts when a construction \u201cmore consonant to reason and the usage of nations can be found.\u201d See also<\/i> Talbot v. Seeman<\/i>, 5 U.S. (1 Cranch) 1 (1801) (adopting a reading of a statute that is consistent with the law of nations because \u201c[b]y this construction the act of Congress will never violate those principles which we believe, and which it is our duty to believe, the legislature of the United States will always hold sacred.\u201d).<\/span> <\/span>the principles underlying the Court\u2019s thinking trace back much further.\u00a0 Professor Bradley <\/span>believes<\/span><\/a> Chief Justice Marshall could have found support for the canon in a pre-constitutional case, argued by none other than Alexander Hamilton, where a New York court read a state law in a way that comported with the Treaty of Paris and the law of nations.\u00a0 In addition, English law <\/span>employs a similar canon<\/span><\/a> and Professor Louis Henkin has found \u201cnumerous statements\u201d where the Supreme Court as early as the late 1700s referred to the law of nations being incorporated into the \u201ccommon law.\u201d26<\/a><\/sup>26 \u00a0Louis Henkin, Foreign Affairs and the United States Constitution 509 n.17 (2d 1996); See also<\/i> United States v. Worrall<\/i>, 2 U.S. (2 Dall.) 384, 392 (1798).<\/span><\/span> In fact, the principles underpinning the doctrine, known as the \u201claw of nations\u201d or <\/span>jus gentium<\/span><\/i>, <\/span>find their roots<\/span><\/a> in ancient Roman law.\u00a0\u00a0<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Third, the <\/span>Charming Betsy<\/span><\/i> canon has been a feature in our judicial system for a long time and in that time, it has elicited no controversy or reaction from the political branches.\u00a0 It <\/span>has become<\/span><\/a> a critical \u201ccomponent of the legal regime defining the U.S. relationship with international law\u201d and is even \u201censhrined in the black-letter-law provisions of the influential <\/span>Restatement (Third) of the Foreign Relations Law of the United States<\/span><\/i>.\u201d\u00a0 Congress has long legislated with <\/span>Charming Betsy<\/span><\/i> as a backdrop and is on notice that it should speak clearly when it intends for a statute to violate international obligations.\u00a0 This argument follows the Supreme Court\u2019s <\/span>understanding<\/span><\/a> that \u201cCongress legislates with knowledge of our basic rules of statutory construction.\u201d<\/span><\/p>\n

V. Peering Through the Spyglass: A Step By Step Guide to Use of <\/b>Charming Betsy<\/i><\/b> Going Forward<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Consistent with Supreme Court precedent, courts should apply the <\/span>Charming Betsy<\/span><\/i> canon when interpreting statutes that overlap with international law.\u00a0 Courts have even broader discretion to do so in a post-<\/span>Chevron<\/span><\/i> world.\u00a0 Below, we propose a three-phase approach that courts should employ when reviewing agency interpretations of statutes where international law is at play.\u00a0<\/span><\/p>\n

a. Step 1<\/span><\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0First, courts should determine whether a statute is clear.\u00a0 If the statute lacks ambiguity, in particular if Congress expressly declared its intention to legislate in a manner that contradicts an international obligation, courts should apply the statute as written, irrespective of international law.\u00a0 Where Congress has clearly spoken, <\/span>Charming Betsy<\/span><\/i> is inapplicable.\u00a0<\/span><\/p>\n

b. Step 2<\/b><\/span><\/p>\n

\u00a0 \u00a0 \u00a0Second, if the statute is ambiguous, courts should look to international law to guide their interpretation of the best meaning of the statute.\u00a0 In accordance with <\/span>Charming Betsy<\/span><\/i>, courts should interpret the domestic statute in a manner that comports with the United States\u2019s international obligation, with the goal of avoiding conflict between domestic law and international law wherever possible.\u00a0 This interpretive exercise should take precedence over agency interpretation of a statute, in accordance with the Supreme Court\u2019s <\/span>clear directive<\/span><\/a> in <\/span>Loper Bright<\/span><\/i> that courts should seek the best meaning of a statute, irrespective of agency interpretation.\u00a0 Courts have long applied <\/span>Charming Betsy<\/span><\/i> as an aid in the statutory interpretation process in this way.\u00a0 Unbridled by <\/span>Chevron<\/span><\/i>, <\/span>Charming Betsy<\/span><\/i> should be a primary tool employed to interpret ambiguous statutes where coinciding international obligations exist.\u00a0<\/span><\/p>\n

c. Step 3<\/span><\/b><\/p>\n

\u00a0 \u00a0 \u00a0Third, if applicable international law is too ambiguous to guide the interpretation of an ambiguous statute, only then should courts give agencies\u2019 interpretations <\/span>\u201crespect\u201d<\/span><\/a> to the extent they have the \u201cpower to persuade.\u201d\u00a0 Notably, the Supreme Court in <\/span>Loper Bright<\/span><\/i> \u201c<\/span>warmly embraced<\/span><\/a> Skidmore v. Swift & Co.<\/span><\/i>, which calls not for deference, but for respectful attention to the views of the relevant agency.\u201d\u00a0 The Court <\/span>held<\/span><\/a> that interpretations \u201c\u2018made in pursuance of [an agency\u2019s] official duty\u2019 and \u2018based upon . . . specialized experience,\u2019 \u2018constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,\u2019 even on legal questions.\u201d27<\/a><\/sup>27 Interpretations made by the same agencies that initially negotiated the international agreement may have greater power to persuade.\u00a0 See<\/i> Iceland S.S. Co.-Eimskip v. U.S. Dep’t of Army<\/i>, 201 F.3d 451, 458 (D.C. Cir. 2000) (\u201c[W]e give \u2018great weight\u2019 to \u2018the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement.\u201d\u2019).<\/span><\/span> Courts should use the <\/span>Skidmore<\/span><\/i> factors to weigh whether the agency\u2019s interpretation is entitled to such \u201crespect.\u201d\u00a0 Factors for a court to consider <\/span>include<\/span><\/a> the \u201cthoroughness evident in [the agency\u2019s] consideration, the validity of [the agency\u2019s] reasoning, [the interpretation\u2019s] consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.\u201d\u00a0 Under this approach, courts can fulfill their duty to interpret statutes, while relying on agencies\u2019 expertise as a guide when both the statute and applicable international law present true ambiguity, in line with the standard established in <\/span>Loper Bright<\/span><\/i>.<\/span><\/p>\n

VI. Conclusion<\/span><\/b><\/p>\n

<\/b>\u00a0 \u00a0 \u00a0Charming Betsy<\/span><\/i> has been applied by the Supreme Court for over 200 years.\u00a0 While the substantive canon of interpretation has sometimes come into conflict with the <\/span>Chevron<\/span><\/i> doctrine, diminishing its applicability and influence, the <\/span>Loper Bright<\/span><\/i> decision <\/span>requires<\/span><\/a> courts to \u201cexercise their independent judgment in deciding whether an agency has acted within its statutory authority,\u201d \u201capplying all relevant interpretive tools\u201d to determine the \u201cbest\u201d interpretation of the statute.\u00a0 With courts now unmoored from <\/span>Chevron<\/span><\/i>, courts can, and should, more actively leverage <\/span>Charming Betsy<\/span><\/i> to harmonize agency interpretations of ambiguous statutes with international law.<\/span><\/p>\n

[hr gap=”1″]<\/p>\n

*Michael Jacobson<\/strong><\/span> is a Partner at the law firm Hogan Lovells US LLP in the firm\u2019s International Trade and Investment practice, based in Washington, DC.<\/span><\/p>\n

**<\/strong><\/span>Stephen Finan<\/strong><\/span> is a student at the American University Washington College of Law.<\/span><\/p>\n

All views, positions, and conclusions expressed in this article should be understood to be solely those of the authors in their personal capacity.<\/span><\/i><\/p>\n

Cover image credit\u00a0<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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