in time” rule means that Congress can by ordinary federal legislation abrogate the effect of a treaty as U.S. law. That subsequent legislation, however, does not affect the validity of the treaty for purposes of international law or the obligations that the U.S. has incurred under the treaty.31 At the international level, the result of subsequent inconsistent federal legislation is to compel the U.S. to go into default with regard to its treaty obligations.32 C. Effect of a Treaty on State Law Under the Supremacy Clause, a self-executing treaty, or federal implementing legislation for a treaty that is not self-executing, at the very least supercedes inconsistent state law.33 Because federal law is “supreme” with regard to inconsistent state law, this is true without regard to whether the inconsistent state law was enacted before or after the treaty. The impact of preemption on state law, however, can potentially go well beyond simply superceding inconsistent state law.34 If the Court finds that the self-executing treaty or federal implementing legislation was intended to “occupy the field,” then all state regulation within the scope of the field will be preempted, even if it is consistent or supplementary or, indeed, even if it deals with an issue with regard to which the federal law is silent.35 Further, the U.S. Supreme Court has found that state law can conflict with federal law not only when its requirements are at odds with the federal law, but also if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”36 Under this type of conflict preemption, even identical, consistent or supplementary state regulation will be preempted if the state regulation interferes with the method by which Congress chose to carry out the goals of the federal statute.37 31
Restatement (Third) §115(1) & (2).
32
Henkin, supra note 7, at 164.
33
U.S. Constitution, Art VI, sec. 2 (“all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”); Henkin, supra note 7, at 242. 34
Henkin, supra note 7, at 242.
35
Id. at 242. Cf. Hines v. Davidowitz, 312 U.S. 52 (1941) (striking down Pennsylvania’s alien registration law although it was consistent with the federal alien registration law because the Court found Congress had intended to occupy the field). 36
Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88 (1992).
37
Id.; e.g., American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) (California statute requiring insurance companies to provide information to facilitate resolution of Holocaust victims’ claims conflicted with the spirit and goals of executive agreements between the president and various foreign entities intended to induce voluntary compensation instead of litigation and coercive sanctions.). -9-