United States v. 2005-07-26 | 04-55772 | WANG VMASAITIS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MICHAEL WANG, No. 04-55772
Petitioner-Appellant, D.C. No.
v.  CV-03-07470-CAS
ROBERT MASAITIS, U.S. Marshal, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
February 7, 2005—Pasadena, California
Filed July 27, 2005
Before: Warren J. Ferguson, John T. Noonan, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins;
Dissent by Judge Ferguson
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COUNSEL
Hoyt Sze, Office of the Federal Public Defender, Santa Ana,
California, for the petitioner-appellant.
Mark C. Krause, Office of the United States Attorney, Los
Angeles, California, for the respondent-appellee.
OPINION
HAWKINS, Circuit Judge:
We must decide whether, under the Treaty Clause of the
Constitution, the United States may enter into a “treaty” with
a non-sovereign entity, such as Hong Kong. We conclude that
such a treaty is constitutional, and therefore uphold the valid-
ity of the “Agreement Between the Government of the United
States of America and the Government of Hong Kong for the
Surrender of Fugitive Offenders” (“Extradition Agreement”).
We also hold that a magistrate judge has jurisdiction under the
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Federal Magistrates Act to issue a Report and Recommenda-
tion (“R & R”) regarding a habeas petition without the defen-
dant’s explicit consent.
I. BACKGROUND
In 2003, Hong Kong Magistrate Bina Chainrai issued a
warrant authorizing Michael Wang’s arrest. The warrant listed
eighteen counts of theft (adding up to $15,834,000 in Hong
Kong currency) and two counts of dealing with property
known or believed to represent proceeds of an indictable
offense. After the Hong Kong Department of Justice formally
requested Wang’s surrender pursuant to the Extradition
Agreement, the United States filed a request to extradite him.
United States Magistrate Judge Rosalyn M. Chapman held a
hearing, found that all of the requirements for the extradition
had been met, and issued an order certifying Wang’s
extraditability.
Wang filed a habeas petition challenging the extradition
order, contending (1) that the court lacked subject matter
jurisdiction to certify extradition because the Extradition
Agreement between the United States and Hong Kong is not
a proper “treaty” under the Constitution, and (2) that no prob-
able cause supports certain charges against him. Wang’s
habeas petition was heard by Magistrate Judge Chapman, who
issued a R & R to District Judge Christina A. Snyder.
Although Wang did not explicitly consent to Magistrate Judge
Chapman’s review of his habeas petition, Wang made no
objection to her appointment. Judge Snyder conducted a de
novo review of the R & R, approved and adopted the R & R,
and entered an order denying the petition for habeas corpus.
II. DISCUSSION
On July 1, 1997, the United Kingdom returned sovereignty
over Hong Kong to China. See 22 U.S.C. § 5701. The Hong
Kong Special Administrative Region (“HKSAR”) of China
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was set up “to enjoy a high degree of autonomy on all matters
other than defense and foreign affairs.” Id. The transfer of
sovereignty implemented a “one country, two systems” pol-
icy, “under which Hong Kong will retain its current lifestyle
and legal, social, and economic systems until at least the year
2047.” Id.
From 1977 to June 30, 1997, extradition relations between
the United States and Hong Kong were governed by an extra-
dition treaty between the United States and the United King-
dom. In light of the transfer of sovereignty over Hong Kong
from the United Kingdom to China, the United States and
Hong Kong concluded the Extradition Agreement, for which
President Clinton requested the Senate’s advice and consent
to ratify “as a treaty.” China had already approved Hong
Kong entering into the agreement. The Senate subsequently
ratified the Extradition Agreement. See 143 Cong. Rec.
S 11165 (Oct. 23, 1997).1
A. Political Question
The government argues that the constitutionality of the
Extradition Agreement is a nonjusticiable political question,
framing the issue as whether Hong Kong is a “sufficiently
sovereign foreign power for the purpose of entering into a
treaty.” However, this court need not decide the status of
Hong Kong’s sovereignty. Rather, the constitutional issue that
Wang has raised is whether the term “treaty” in the Treaty
Clause encompasses agreements with non-sovereigns, such as
Hong Kong — and that question is clearly justiciable under
Baker v. Carr, 369 U.S. 186, 217 (1962).
The Second Circuit’s separation of justiciable and nonjusti-
ciable issues regarding the Hong Kong Extradition Agreement
is instructive:
1The Department of State listed the Extradition Agreement in “Treaties
in Force, A List of Treaties and Other International Agreements of the
United States in Force on January 1, 2004.”
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Federal courts lack the authority and institutional
competence to make the political judgments
involved in ascertaining the legitimacy of foreign
systems. Thus, in this case, it is not for the courts to
decide whether the HKSAR government is a legiti-
mate government. Instead, our role is limited to
answering the prior definitional question: what does
the term “foreign government” in the extradition
statute mean? More precisely, the question we must
answer is whether the government of a subsovereign
constitutes a “foreign government” or the govern-
ment of a “foreign country” for purposes of [18
U.S.C.] § 3184. Put another way, for most purposes
of United States foreign relations, the HKSAR gov-
ernment is the government of Hong Kong because it
has been recognized as such by the Executive, but it
is a “foreign government” within the meaning of the
extradition statute only if the judiciary interprets that
term to encompass subsovereigns.
Cheung v. United States, 213 F.3d 82, 89 (2d Cir. 2000) (cit-
ing Baker v. Carr, 369 U.S. at 212). Though we answer a
slightly different definitional question — whether the Presi-
dent may enter into a treaty with a non-sovereign under the
Treaty Clause — the principle is the same, relying on Baker’s
distinction between discerning a nation’s sovereignty (a polit-
ical question) and interpreting the impact of that status on the
law (a judicial one):
While recognition of foreign governments . . .
strongly defies judicial treatment . . . and the judi-
ciary ordinarily follows the executive as to which
nation has sovereignty over disputed territory, once
sovereignty over an area is politically determined
and declared, courts may examine the resulting sta-
tus and decide independently whether a statute
applies to that area.
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369 U.S. at 212 (footnote omitted). China’s sovereignty over
Hong Kong (and by corollary Hong Kong’s subsovereign sta-
tus) has been resolved by the executive branch, and we do not
question that judgment. However, this court may examine the
resulting status of Hong Kong, and decide whether the Treaty
Clause applies to Hong Kong as a constitutionally cognizable
treaty party.
Baker’s six factors to determine whether an issue is a non-
justiciable political question supports finding justiciability
here:
Prominent on the surface of any case held to involve
a political question is found [1] a textually demon-
strable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judi-
cially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or [4] the impossi-
bility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for
unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrass-
ment from multifarious pronouncements by various
departments on one question.
Id. at 217. “Unless one of these formulations is inextricable
from the case at bar, there should be no dismissal for nonjusti-
ciability on the ground of a political question’s presence.” Id.
(emphasis added).
[1] Justice Powell distilled the Baker test into three inqui-
ries: “(i) Does the issue involve resolution of questions com-
mitted by the text of the Constitution to a coordinate branch
of Government? (ii) Would resolution of the question demand
that a court move beyond areas of judicial expertise? (iii) Do
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prudential considerations counsel against judicial interven-
tion?” Goldwater v. Carter, 444 U.S. 996 (1979) (Powell, J.,
concurring). In applying the Baker/Goldwater factors, it is
important to note that “it is error to suppose that every case
or controversy which touches foreign relations lies beyond
judicial cognizance,” Baker, 369 U.S. at 211, and that “not
every matter touching on politics is a political question.”
Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S.
221, 229 (1986) (citing Baker, 369 U.S. at 209).
1. No Textually Demonstrable Commitment
[2] The issue here is whether the term “treaty” in the Treaty
Clause encompasses agreements with non-sovereigns. On this
issue of constitutional interpretation, there is no “textually
demonstrable constitutional commitment of the issue to a
coordinate political department,” Baker, 369 U.S. at 217, i.e.
to the President. Rather, the text is silent, and the dissent con-
cedes as much. (See Dissent at 8661-62.)
2. No Lack of Judicially Discoverable and Manageable
Standards; No Requirement for an Initial Policy
Determination
[3] The second Goldwater factor lumps together the second
and third Baker inquiries — whether there is “a lack of judi-
cially discoverable and manageable standards” and whether a
decision is impossible “without an initial policy determination
of a kind clearly for nonjudicial discretion.” See Goldwater,
444 U.S. at 999 (Powell, J., concurring). Nowhere do we
make an explicit or implicit policy determination that an
extradition agreement, or foreign relations generally, with
Hong Kong is a good or bad thing. The neutral analysis of the
Indian treaty line of cases to fill in the silence of the Treaty
Clause utilizes regular means of constitutional interpretation.
“Resolution of the question may not be easy, but it only
requires us to apply normal principles of interpretation to the
constitutional provisions at issue.” Cf. id. The dissent’s dis-
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agreement with the Indian treaty analogy does not make the
analysis judicially unmanageable or policy-oriented.
3. Prudential Considerations
[4] The remaining Baker inquires may be seen as prudential
considerations, the third of the Goldwater inquiries. The dis-
sent is concerned that addressing the requirements of the
Treaty Clause would risk the nation’s ability to speak with
one voice in the field of foreign affairs with Hong Kong. (Dis-
sent at 8669.) Though a valid concern, it is overstated. Even
if the court were to find that the Treaty Clause did not encom-
pass agreements with non-sovereigns, the President could still
enter into an executive agreement, or pass legislation with
both houses of Congress, that would establish identical extra-
dition obligations (and other treaty obligations) between the
United States and Hong Kong.
[5] The court is “cognizant of the interplay” between the
interpretation of the Treaty Clause and the conduct of this
Nation’s foreign affairs, but one of the judiciary’s characteris-
tic roles is to interpret the Constitution, and “we cannot shirk
this responsibility merely because our decision may have sig-
nificant political overtones.” Cf. Japan Whaling, 478 U.S. at
230 (addressing whether two statutes required the Secretary of
Commerce to act contrary to an executive agreement, despite
contention of “embarrassment from multifarious pronounce-
ments by various departments”). Thus, we conclude that the
issue presented is justiciable.
B. The United States May Enter Into a Treaty with a Non-
Sovereign
We review whether a constitutionally valid extradition
treaty exists de novo. In the Matter of Then v. Melendez, 92
F.3d 851, 853 (9th Cir. 1996).
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1. The Text, Framer’s Intent, and the Indian Treaties
[6] The text of the Treaty Clause of the United States Con-
stitution2 and the extradition statute3 are silent as to the defini-
tion of the term “treaty.” “The power to make treaties is given
by the Constitution in general terms, without any description
of the objects intended to be embraced by it. . . .” Holmes v.
Jennison, 39 U.S. 540, 569 (1840). Treaties enacted pursuant
to Article II receive a presumption of constitutionality. See In
re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d
1301, 1309 (9th Cir. 1982).
[7] Wang argues that the United States cannot constitution-
ally enter into a “treaty” with a non-sovereign such as Hong
Kong. However, there is no credible source that supports the
proposition that the Treaty Clause permits only a treaty with
a sovereign nation. Indeed, it would be difficult for the
Founders to have this thought at the drafting of the Constitu-
tion, since, as Wang concedes, non-sovereign entities “were
not prevalent in 1787.”
The Second Circuit has upheld the constitutionality of the
Hong Kong Extradition Agreement.4 See Cheung, 213 F.3d
82. The reasoning of the Second Circuit is persuasive:
Although the term “treaty” is commonly understood
in modern usage as a “contract[ ] between indepen-
dent nations,” the term was not necessarily so lim-
2The Treaty Clause states that the President “shall have Power, by and
with the Advice and Consent of the Senate, to make Treaties, provided
two thirds of the Senators present concur.” U.S. Const. Art. II, § 2, Cl. 2.
318 U.S.C. § 3184 authorizes extradition of fugitives from foreign coun-
tries “[w]henever there is a treaty or convention for extradition between
the United States and any foreign government.”
4Ninth Circuit, Tenth Circuit, and Fourth Circuit district courts have
also upheld this treaty. In Re Coe, 261 F. Supp. 2d 1203 (C.D. Cal. 2003);
In the matter of Seong-I, 346 F. Supp. 2d 1149 (D. N.M. 2004); United
States v. Sai-Wah, 270 F. Supp. 2d 748 (W.D. N.C. 2003).
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ited in the mid-19th century (or now) when the
federal extradition statute was enacted. It is true that
at the time Congress passed the act, the United States
had ratified only two extradition treaties, both with
sovereign nations — France and England. However,
the United States had also ratified hundreds of trea-
ties with Indian tribes or nations. From the first years
of our constitutional republic, the Indian treaties
have enjoyed a status “on a par with foreign trea-
ties.” This has been the case even though Indian
treaty partners have been described as “domestic
dependent nations” insofar as they had ceded powers
generally associated with sovereignty, including the
right freely to carry out foreign relations and trade.
Thus, it is clear that the term “treaty” had a mean-
ing broader than an agreement between fully sover-
eign or independent entities.
Cheung, 213 F.3d at 89-90 (citations omitted).
[8] The Supreme Court’s treatment of United States treaties
with Indian nations, despite an evolving debate about their
sovereignty status,5 as constitutionally valid, see, e.g., United
States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196
(1876),6 Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172, 204 (1999),7 strongly suggests that the Treaty
5As the Supreme Court described in United States v. Lara, 124 S. Ct.
1628, 1634-35 (2004), Congress has “authorized at different times very
different Indian policies;” “[s]uch major policy changes inevitably involve
major changes in the metes and bounds of tribal sovereignty.”
6“From the commencement of its existence, the United States has nego-
tiated with the Indians in their tribal condition as nations, dependent, it is
true, but still capable of making treaties.”
7In discussing an 1837 treaty with the Chippewa Indians, the Court
stated:
Indian treaty rights can coexist with state management of natural
resources. Although States have important interests in regulating
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Clause does not preclude the United States from entering into
treaties with non-sovereigns.
2. The Significance of 25 U.S.C. § 71
Wang also argues that the 1871 implementation of 25
U.S.C. § 71,8 which prohibits future contracts “by treaty” with
Indian nations (without invalidating or impairing prior trea-
ties), demonstrates that the Congress and President interpreted
the term “treaty” only as an inter-sovereign agreement. Thus,
Wang argues that Cheung incorrectly concluded that the
United States may enter into a treaty with a non-sovereign “by
mistakenly assuming that pre-1871 Indian tribes were non-
sovereign entities.”
[9] First, it is a stretch to argue that based on United States
relations with Indian nations via an 1871 statute, without any
interpretation of the Treaty Clause, the term “treaty” should
be constitutionally defined solely as between two sovereigns.9
Whatever the Congress and the President may have believed
in 1871 about treaties and sovereignty, it is well-established
that it is the judicial branch that is endowed with the duty of
wildlife and natural resources within their borders, this authority
is shared with the Federal Government when the Federal Govern-
ment exercises one of its enumerated constitutional powers, such
as treaty making. U.S. Const., Art. VI, cl. 2.
(citing, as an example, Forty-Three Gallons of Whiskey, 93 U.S. 188).
825 U.S.C. § 71 states, in relevant part: “No Indian nation or tribe
within the territory of the United States shall be acknowledged or recog-
nized as an independent nation, tribe, or power with whom the United
States may contract by treaty; but no obligation of any treaty lawfully
made and ratified with any such Indian nation or tribe prior to March 3,
1871, shall be hereby invalidated or impaired.”
9It is worth noting that the 1871 passage of 25 U.S.C. § 71 had as much
to do with the irritation of the House of Representatives with being left out
from the regulation of Indian affairs as it had to do with Indian sover-
eignty. See Blake v. Arnett, 663 F.2d 906, 910 (9th Cir. 1981) (describing
1871 Act “at least in part the result of political infighting in Congress.”).
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constitutional interpretation. Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803) (“It is emphatically the province and
duty of the judicial department to say what the law is.”). And,
to date, there is no Supreme Court precedent specifically
holding that a treaty between a sovereign and non-sovereign
is unconstitutional.
Second, as Cheung points out, pre-1871 decisions did refer
to Indian nations as non-sovereign, or at least as less than
fully sovereign. See, e.g., Cherokee Nation v. Georgia, 30
U.S. 1, 17-18 (1831);10 see also Johnson v. M’Intosh, 21 U.S.
10The Supreme Court recounted the status of Indian tribes:
[Indian tribes] are considered as within the jurisdictional limits of
the United States, subject to many of those restraints which are
imposed upon our own citizens. They acknowledge themselves in
their treaties to be under the protection of the United States; they
admit that the United States shall have the sole and exclusive
right of regulating the trade with them, and managing all their
affairs as they think proper . . . . Treaties were made with some
tribes by the state of New York, under a then unsettled construc-
tion of the confederation, by which they ceded all their lands to
that state, taking back a limited grant to themselves, in which
they admit their dependence.
Though the Indians are acknowledged to have an unquestionable,
and, heretofore, unquestioned right to the lands they occupy, until
that right shall be extinguished by a voluntary cession to our gov-
ernment; yet it may well be doubted whether those tribes which
reside within the acknowledged boundaries of the United States
can, with strict accuracy, be denominated foreign nations. They
may, more correctly, perhaps, be denominated domestic depen-
dent nations. They occupy a territory to which we assert a title
independent of their will, which must take effect in point of pos-
session when their right of possession ceases. Meanwhile they are
in a state of pupilage. Their relation to the United States resem-
bles that of a ward to his guardian.
They look to our government for protection; rely upon its kind-
ness and its power; appeal to it for relief to their wants; and
address the president as their great father. They and their country
are considered by foreign nations, as well as by ourselves, as
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543, 574 (1823) (Indian “rights to complete sovereignty, as
independent nations, were necessarily diminished”); but see
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832)
(describing Indian nations as “distinct, independent political
communities, retaining their original natural rights, as the
undisputed possessors of the soil”).
[10] Thus, the United States’ history of treaties with non-
sovereign Indian nations fills in the silence of the Treaty
Clause and the extradition statute with respect to the term
“treaty”: it is constitutional for the United States to enter into
a treaty with a non-sovereign, such as Hong Kong.
C. Appointment of Same Magistrate Judge to Handle
Extradition Certification and Habeas Challenge Was
Proper
[11] We review the “scope of authority and powers of a
magistrate judge” de novo. United States v. Sanchez-Sanchez,
333 F.3d 1065, 1068 (9th Cir. 2003). The jurisdiction and
powers of magistrate judges are enumerated in 28 U.S.C.
§ 636 of the Federal Magistrates Act. Section 636(b)(1)(A)
allows a district judge to designate a magistrate to hear and
determine any pretrial matter, except eight types of motions
(none of which pertain to Wang’s case). Section 636(b)(1)(B)
permits a district judge to designate a magistrate to conduct
hearings and submit proposed findings of fact and recommen-
dations for the disposition of (1) any motion excepted in
§ 636(b)(1)(A), (2) applications for posttrial relief made by
individuals convicted of criminal offenses, and (3) prisoner
petitions challenging conditions of confinement. Finally, there
being so completely under the sovereignty and dominion of the
United States, that any attempt to acquire their lands, or to form
a political connexion with them, would be considered by all as an
invasion of our territory, and an act of hostility.
30 U.S. at 17-18 (emphasis added).
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is a catch-all provision, § 636(b)(3), which permits a district
court judge to assign the magistrate any additional duties not
inconsistent with the Constitution and the laws of the United
States.
The United States District Court for the Central District of
California issued General Order 01-13, which fills in specific
additional duties assigned to magistrate judges. Federal
habeas corpus petitions and extradition proceedings are
among the types of cases assigned to magistrates. The Order
explains that once a case is randomly assigned to a magistrate
judge for a report and recommendation (as Magistrate Judge
Chapman was assigned to Wang’s extradition proceeding), all
subsequent habeas corpus cases filed by the same party shall
be assigned to the same magistrate judge. Thus, under Gen-
eral Order 01-13, Magistrate Judge Chapman was well within
her authority to issue a R & R for Wang’s habeas petition.
The issue presented here is whether, in this scenario, the mag-
istrate judge exceeded the authority granted under § 636(b)(3)
— the catch-all provision.11
[12] Wang argues that Magistrate Judge Chapman lacked
jurisdiction under § 636 to submit a R & R because he did not
explicitly consent to his habeas petition being handled by a
magistrate. Under United States v. Gomez-Lepe, 207 F.3d
623, 628-29 (9th Cir. 2000), consent is the most important
factor in determining what the catch-all provision encom-
passes, when the matter at issue is a “critical stage” of the
proceedings (as opposed to a “subsidiary” one). Gomez-Lepe
goes on to explain that “where discretion is exercised, the
scope of [the] magistrate judge’s authority is construed more
narrowly.” Id. at 629. For example, duties that require a “final
and independent determination of fact or law” would necessi-
tate consent. Id.
11As the government concedes, § 636 does not explicitly provide for the
preparation of a R & R regarding a habeas petition challenging an extradi-
tion order. Therefore, the magistrate judge’s jurisdiction, if any, must lie
in the catch-all provision § 636(b)(3).
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[13] Here, the magistrate judge’s R & R was not a final and
independent determination of fact or law, as the district judge
reviewed the habeas petition de novo. Thus, the issuance of
the report was not a “critical stage” of the proceedings.
[14] United States v. Rivera-Guerrero, 377 F.3d 1064 (9th
Cir. 2004), makes clear that Magistrate Judge Chapman did
not exceed her authority in issuing the R & R. In Rivera-
Guerrero, the district court had erred in delegating to the
magistrate judge a final determination regarding involuntary
medication.12 We acknowledged that the issue of involuntary
medication is of “clear constitutional importance” and
“[a]llowing a magistrate judge to make the ultimate decision
in a matter of such clear constitutional import would raise
serious Article III concerns.” Id. at 1070. However, the court
found “no statutory or constitutional concerns raised by
allowing the magistrate judge to submit proposed findings and
recommendations on the involuntary medication determina-
tion to the district court for de novo review.” Id. The court
went even further, making a broad statement about delega-
tions to magistrates involving de novo review by the district
judge:
Raddatz makes clear that the delegation to magis-
trate judges of matters that implicate constitutional
rights for proposed findings and recommendations is
constitutional so long as the findings and recommen-
dations are subject to de novo review by an Article
III judge.
Id. (citing United States v. Raddatz, 447 U.S. 667, 683
(1980)).
[15] There is no reason to question the de novo review
12The Rivera-Guerrero court analyzed the issue both as a duty under
§ 636(b)(1)(B) and § 636(b)(3), id. at 1070, so the decision’s reasoning
applies here.
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done by Judge Snyder here. The Order adopting the R & R
states that “the Court reviewed the Petition and other papers
along with the attached Report and Recommendation . . . as
well as petitioner’s objections and respondent’s response to
petitioner’s objections, and has made a de novo determina-
tion.” Considering this de novo review, there was no violation
of the Federal Magistrates Act or a deprivation of review by
an Article III judge.13
CONCLUSION
For all of the foregoing reasons, the extradition of Wang is
constitutional, and the issuance of the R & R by Magistrate
Judge Chapman comported with the Federal Magistrates Act.
AFFIRMED.
FERGUSON, Circuit Judge, dissenting:
Not every constitutional question requires judicial scrutiny
or resolution. While the judiciary has the power to address
questions concerning the content of treaties, see Eastern Air-
lines, Inc. v. Floyd, 499 U.S. 530, 534-35 (1991), the question
of whether the President may enter into treaties with non-
sovereigns is left to the politically accountable branches of
government. The majority announces a flawed and unneces-
sary constitutional ruling on this issue. Because we should
dismiss Wang’s appeal for lack of justiciability, I must dis-
sent.
13Of course, de novo review of a R & R is only required when an objec-
tion is made to the R & R, United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc) (“Neither the Constitution nor the [Federal
Magistrates Act] requires a district judge to review, de novo, findings and
recommendations that the parties themselves accept as correct”), as Wang
objected in this case.
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I.
The majority rules that whether the President has the con-
stitutional authority to enter into treaties with non-sovereigns,
like Hong Kong, is a clear justiciable question under Baker v.
Carr, 369 U.S. 186, 217 (1962). Instead of “discerning a
nation’s sovereignty (a political question),” the majority states
that we are only “examin[ing] the resulting status of Hong
Kong” and “decid[ing] whether the Treaty Clause applies to
Hong Kong as a constitutionally cognizable treaty party.”
Maj. op. at 8650. What constitutes a “constitutionally cogni-
zable treaty party,” however, is a question of foreign policy
that the judiciary cannot address. In fact, all of the Baker fac-
tors support dismissing Wang’s appeal and leaving resolution
of this question to the political process.
A.
First, mindful of the fact that not “every case or contro-
versy which touches foreign relations lies beyond judicial
cognizance,” Baker, 369 U.S. at 211, the question of whether
Hong Kong is a constitutionally cognizable treaty partner is
committed to the political branches because it is inextricably
linked to the President’s broad authority in the field of foreign
relations.
The majority narrowly reframes the issue for purposes of
the first Baker test, as whether the term “treaty” in the Treaty
Clause encompasses agreements with non-sovereigns. Maj.
op. at 8651. But the real issue here is not as simple as the
majority would have us view it. While it is undisputed that the
judiciary has the power to interpret the language of the Con-
stitution, including the Treaty Clause, see Cooper v. Aaron,
358 U.S. 1, 18 (1958) (per curiam) (“the federal judiciary is
supreme in the exposition of the law of the Constitution, and
that principle has ever since [Marbury v. Madison] been
respected by this Court and the Country as a permanent and
indispensable feature of our constitutional system[ ]”), not
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every constitutional question requires judicial interpretation.
See Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105
(1944) (“If there is one doctrine more deeply rooted than any
other in the process of constitutional adjudication, it is that we
ought not to pass on questions of constitutionality . . . unless
such adjudication is unavoidable.”). In its most basic form,
the real question before us is whether it is the role of the judi-
ciary or the political branches to decide what constitutes a
treaty partner. The Constitution commits the latter to answer
this question.
As Chief Executive, U.S. Const. art. II, § 1, cl. 1, and Com-
mander in Chief, U.S. Const. art. II, § 2, cl. 1, the President
is “the guiding organ in the conduct of our [nation’s] foreign
affairs.” Ludecke v. Watkins, 335 U.S. 160, 173 (1948); see
United States v. Pink, 315 U.S. 203, 229 (1942) (“[T]he Presi-
dent . . . is the ‘sole organ of the federal government in the
field of international relations.’ ”) (citation omitted). In addi-
tion to granting the President the power to make treaties with
the advice and consent of the Senate, U.S. Const. art. II, § 2,
cl. 2, the same clause of the Constitution confers upon the
President the sole power to “appoint Ambassadors, other pub-
lic Ministers, and Consuls,” while a subsequent section vests
the President with the authority “to receive Ambassadors and
other public Ministers.” U.S. Const. art. II, § 3. The Presi-
dent’s further authority to recognize foreign powers logically
derives from his ample constitutional authority in the realm of
foreign affairs. See Banco Nacional de Cuba v. Sabbatino,
376 U.S. 398, 410 (1964) (“Political recognition is exclu-
sively a function of the Executive.”); Pink, 315 U.S. at 229
(“Objections to the underlying policy as well as objections to
recognition are to be addressed to the political department and
not to the courts.”); United States v. Sandoval, 231 U.S. 28,
45-46 (1913) (recognition of Indian tribes is also left to the
political branches).
Here, the President, acting within his grant of constitutional
authority, engaged in diplomatic relations with Hong Kong
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while under British and now Chinese rule. On the basis of this
preexisting relationship, the President considered Hong Kong
a foreign power—sovereign or non-sovereign—with which
the United States could cooperate and reach various agree-
ments, including an extradition agreement. To effectuate his
interest in establishing an extradition policy with Hong Kong,
the President entered into the Hong Kong Extradition Agree-
ment (HKEA) with the Senate’s approval pursuant to the
President’s constitutionally committed power to “make Trea-
ties, provided two thirds of the Senators present concur.” U.S.
Const. art. II, § 2, cl. 2. The HKEA is, therefore, a Senate-
approved treaty that represents the President’s ongoing inter-
est in maintaining foreign relations with Hong Kong.
It is not the role of the courts to question whether the Presi-
dent properly exercised his political power by entering into a
treaty with Hong Kong in the process of conducting foreign
affairs. See Harisiades v. Shaughnessy, 342 U.S. 580, 589
(1952) (explaining that “the conduct of foreign relations . . .
[is] so exclusively entrusted to the political branches of gov-
ernment as to be largely immune from judicial inquiry or
interference”) (footnote omitted); United States v. Belmont,
301 U.S. 324, 328 (1937) (stating that “the conduct of foreign
relations was committed by the Constitution to the political
departments of the government, and the propriety of what
may be done in the exercise of this political power [is] not
subject to judicial inquiry or decision”) (referring to Oetjen v.
Central Leather Co., 246 U.S. 297, 311 (1918)). By virtue of
wielding the power to make treaties, appoint ambassadors,
and recognize foreign governments, all part of the President’s
extensive power to conduct foreign relations, the President is
necessarily entrusted by the structure of the Constitution with
the power to determine who makes a proper treaty partner.
See Alperin v. Vatican Bank, No. 03-15208, slip op. 6643,
6671 (9th Cir. June 9, 2005) (citing Nixon v. United States,
506 U.S. 224, 240-41 (1993) (White, J., concurring)) (“ ‘The
courts . . . are usually left to infer the presence of a political
question from the text and structure of the Constitution.’ ”);
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Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1511
(D.C. Cir. 1984) (en banc) (“The first [Baker test] requires the
court to determine whether the text of the Constitution implic-
itly or explicitly commits the stated claim to the political
branches.”).
Moreover, given the President’s broad textual grants of
authority in conducting the nation’s foreign affairs, the
Supreme Court has reasonably invoked the political question
doctrine distinctly in the area of foreign affairs. See Oetjen,
246 U.S. at 302. In particular, with regard to treaties, the
Supreme Court has held that it is a political question whether
a treaty survives when one country becomes part of another.
Terlinden v. Ames, 184 U.S. 270 (1902). A plurality of the
Supreme Court has also stated that whether the President may
unilaterally terminate a treaty is by its nature a political ques-
tion. Goldwater v. Carter, 444 U.S. 996 (1979). Most applica-
ble here, one of our sister circuits has held specifically that the
question of what constitutes a treaty requiring Senate ratifica-
tion is a political question, Made in the USA Found. v. United
States, 242 F.3d 1300, 1302 (11th Cir. 2001), cert. denied,
534 U.S. 1039 (2001), while another has persuasively
explained that the making of international agreements is tex-
tually committed to the political branches:
While the treaty power of the Executive expressly
involves the participation of the Legislature,
nowhere does the Constitution contemplate the par-
ticipation by the third, non-political branch, that is
the Judiciary, in any fashion in the making of inter-
national agreements or the recognition of foreign
governments. . . . [T]his is one of those areas of for-
eign relations textually committed to the political
branches to the exclusion of the Judiciary.
Antolok v. United States, 873 F.2d 369, 381 (D.C. Cir. 1989)
(emphasis added).
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Although the Constitution does not spell out a pronounced
textual limit on the authority granted to the President to make
treaties under Article II, it is clear, from both its text and
structure, that the Constitution grants the President expansive
power in the area of foreign affairs. The power to make trea-
ties, with the advice and consent of the Senate, necessarily
implies in the President the power to choose the nation’s
treaty partners — sovereign or non-sovereign. By intervening
in this case, the majority forgets that we must defer to the
political branches in political questions even where we think,
as the majority does here, that we can provide a basis for
sanctioning the President’s contested action. See id. at 383
(explaining that “it is against that very invasion that the politi-
cal question doctrine protects the political realm from judicial
invasion”).
B.
Second, the courts lack judicially manageable standards to
determine what constitutes a constitutionally cognizable treaty
partner under the Treaty Clause. As in Goldwater and Made
in the USA Found., the crux of the challenge in the present
case is not centered on the treaty’s substantive provisions, but
rather on what it means to adopt a treaty. In Goldwater, for
example, the Supreme Court addressed the abrogation of a
treaty, a plurality of the Court holding that the question of
whether the President could unilaterally terminate a treaty is
governed by political standards. 444 U.S. 996. In Made in the
USA Found., the Eleventh Circuit addressed the proper proce-
dures for enacting a treaty, concluding that whether the Senate
needs to ratify the North American Free Trade Agreement
(NAFTA) is a political question. 242 F.3d 1300. Here, we are
being asked to address with which foreign governments the
President may enter into a treaty. The Constitution is silent
with regard to how we address any of these questions.
Such decisions require that we consider areas beyond our
judicial expertise. Indeed, in Made in the USA Found., the
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Eleventh Circuit held that it lacked the legal tools to decide
what constitutes a treaty requiring Senate ratification in part
because “the Treaty Clause [ ] fails to outline the circum-
stances, if any, under which its procedures must be adhered
to when approving international agreements.” 242 F.3d at
1315. Ninth Circuit Judge Betty B. Fletcher, sitting by desig-
nation, cited Goldwater distinctly as supporting authority:
there, “the Supreme Court declined to act because the . . .
Treaty Clause fails to outline the Senate’s role in the abroga-
tion of treaties.” Made in the USA Found., 242 F.3d at 1315.
Here, too, the Treaty Clause fails to outline the foreign gov-
ernments with which the President may properly enter into a
treaty. See Holmes v. Jennison, 39 U.S. 540, 569 (1840)
(explaining that “[t]he power to make treaties is given by the
Constitution in general terms, without any description of the
objects intended to be embraced by it”). In other words, there
exists no “identifiable textual limit” in the Constitution on the
President’s authority to make treaties with sovereigns or non-
sovereigns. Made in the USA Found., 242 F.3d at 1315.
Not surprisingly, because the Constitution does not speak
to this issue, the majority relies upon a “neutral analysis of the
Indian treaty line of cases,” Maj. op. at 8651, to infer that the
President may enter into treaties with non-sovereigns. The
majority’s position, like the Second Circuit’s position in
Cheung v. United States, 213 F.3d 82 (2d Cir. 2000), presup-
poses that Indian tribes were considered non-sovereign at the
time the President entered into treaties with them. Id. at 90
(finding that “it is clear that the term ‘treaty’ had a meaning
broader than an agreement between fully sovereign or inde-
pendent entities”). The Indian treaty line of cases, however,
is not conclusive; in fact, those cases cast serious doubt on
whether the President in the past recognized Indian tribes as
sovereign or non-sovereign.
The majority explains that in Cherokee Nation v. Georgia,
for example, the Supreme Court described Indian nations as
“domestic dependent nations,” suggesting their non-sovereign
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status. 30 U.S. 1, 17 (1831). In the same case, however, the
Court underscored the unique relationship between Indian
nations and the United States:
The condition of the Indians in relation to the United
States is perhaps unlike that of any other two people
in existence. In general, nations not owing a com-
mon allegiance are foreign to each other. The term
foreign nation is, with strict propriety, applicable by
either to the other. But the relation of the Indians to
the United States is marked by peculiar and cardinal
distinctions which exist no where else. . . . [T]hey
are considered as within the jurisdictional limits of
the United States, subject to many of those restraints
which are imposed upon our own citizens.
Id. at 16-17 (1831). In Worcester v. Georgia, the Supreme
Court elaborated on the issue, describing Indian nations as
“distinct, independent political communities, retaining their
original natural rights, as the undisputed possessors of the
soil,” to which the United States has applied “[t]he words
‘treaty’ and ‘nation’ ” as it has to “other nations of the earth.”
31 U.S. 515, 559-60 (1832) (stating that “[t]he constitution
. . . adopted and sanctioned the previous treaties with the
Indian nations, and consequently admit[ted] their rank among
those powers who are capable of making treaties”). Thus,
Indian nations may well have been considered sovereign,
instead of non-sovereign, when the President entered into
treaties with them.
The fact that Congress passed 25 U.S.C. § 71, which pro-
hibited treaties with Indian tribes after 1871, furthers this
argument. There, the statute reads, in relevant part:
No Indian nation or tribe within the territory of the
United States shall be acknowledged or recognized
as an independent nation, tribe, or power with whom
the United States may contract by treaty; but no obli-
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gation of any treaty lawfully made and ratified with
any such Indian nation or tribe prior to March 3,
1871, shall be hereby invalidated or impaired.
25 U.S.C. § 71 (emphases added). Wang contends that this
language suggests congressional intent to strip Indian tribes of
their sovereign status and affirm the inter-sovereign nature of
treaties. Yet the statute could also be read as proof that Indian
tribes were never recognized as sovereign nations, but rather
as dependent nations.
While it is unclear whether Indian tribes were sovereign or
non-sovereign at the time the President entered into treaties
with them, what is clear is that Indian nations are historically
distinct. To compare United States-Indian treaties to the
HKEA, therefore, is neither reasonable nor rational and fails
to “fill[ ] in the silence of the Treaty Clause and the extradi-
tion statute with respect to the term ‘treaty.’ ” Maj. op. at
8657; see Alperin, slip op. at 6677 (explaining that courts
must be able “to reach a ruling that is ‘principled, rational,
and based upon reasoned distinctions’ ”) (citation omitted).
Accordingly, the question of whether the President may enter
into treaties with non-sovereigns is not amenable to judicial
scrutiny and better left to the political branches to resolve.
C.
Last, prudential considerations militate against reaching the
merits of Wang’s appeal. The Supreme Court clearly stated in
Baker that it is crucial that the nation speaks with one voice
in the field of foreign affairs. 369 U.S. at 211 (“[M]any such
questions [touching on foreign relations] uniquely demand
single-voiced statement [sic] of the Government’s views.”)
(footnote omitted); see Alperin, slip op. at 6687 (explaining
that it is not the court’s place to “make pronouncements on
foreign policy”). Here, the majority, while upholding the
President’s decision to enter into a treaty with a non-
sovereign, expresses a lack of respect for the President’s han-
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dling of foreign relations by questioning the propriety of the
President’s action. In fact, it provides unwarranted legitimacy
to the President’s action when such intervention is reasonably
avoidable. See Spector Motor Serv., 323 U.S. at 105 (1944)
(explaining that “we ought not to pass on questions of consti-
tutionality . . . unless such adjudication is unavoidable”).
The majority contends that this one-voice concern is “over-
stated” because, even if the court had reached the opposite
result, the President would still have the power to enter into
an executive agreement or pass legislation with both houses
of Congress. Maj. op. at 8652. While I accept that the Presi-
dent may use alternative measures to reach an extradition
agreement with Hong Kong, I submit that there is no reason
to question the President’s decision when both the State
Department and the Senate have sanctioned the present
action. Cf. Alperin, slip op. at 6688 (explaining that the
court’s involvement in a case in which the State Department
has articulated a view on the matter would inevitably show a
lack of respect for how the Executive Branch deals with for-
eign relations); Made in the USA Found., 242 F.3d at 1319
(finding that the Senate’s acquiescence in the procedures used
to approve NAFTA counseled against judicial intervention in
the case); Goldwater, 444 U.S. at 996 (Powell, J., concurring)
(stating that “[t]he Judicial Branch should not decide issues
affecting the allocation of power between the President and
Congress until the political branches reach a constitutional
impasse”). Thus, the issue presented is not justiciable.
II.
The question of whether the President has the constitutional
authority to enter into treaties with non-sovereigns, like Hong
Kong, is by its nature political and, thereby, non-justiciable.
The Baker tests inform us, in fact, that the resolution of the
issue is inextricably linked to the President’s broad authority
in the field of foreign relations; that the judiciary lacks the
legal tools to resolve the issue in a principled manner; and
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that prudential considerations weigh against our involvement
in the case. The majority today, as a result, announces an
unnecessary constitutional ruling that has the effect of seri-
ously threatening the strength of the political question doc-
trine. For these reasons, I must dissent.
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