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Abstract

The Supreme Court recently decided a case involving an apparent conflict between a treaty provision and a subsequent act of Congress. A Japanese subsidiary corporation, Sumitomo Shoji America, Inc., claimed a provision of the Treaty of Friendship, Commerce, and Navigation of 1953 between the United States and Japan exempted it from the prohibition against discrimination embodied in title VII of the Civil Rights Act of 1964. The Court did not reach this issue because it found Sumitomo Shoji America, Inc. to be a United States corporation and unable, therefore, to invoke the provisions of the treaty. The issue raised in Sumitomo Shoji America, Inc. v. Avagliano is "clearly of widespread importance." Treaty provisions identical to those involved in Sumitomo are found in numerous commercial treaties between the United States and countries having branch and subsidiary corporations in the United States. It is likely that one of these branch corporations will seek to invoke the treaty provision as an exemption from title VII. Eventually, the Supreme Court may have to resolve the apparent conflict between the treaty provision and title VII of the Civil Rights Act of 1964. The supremacy clause places acts of Congress and treaties on equal footing as law of the land. Thus, the Constitution does not resolve the conflict. A judicially developed solution, the later-in-time doctrine or posteriores priores, traditionally has been invoked to resolve such conflicts. The doctrine was stated succinctly by Justice Field nearly one hundred years ago . . . . Justification for the doctrine is premised on Congress' independent legislative power to enact domestic law. The effect of the doctrine, however, is the unilateral termination of the domestic operation of a treaty provision by Congress by inconsistent legislation. Termination of the domestic operation of a treaty provision results in the inability of the United States to fulfill its international obligations, forcing breach of the treaty by the United States or presidential notice of termination in the international sphere. This raises serious questions regarding Congress' constitutional role in treaty termination, especially in light of the recent case of Goldwater v. Carter. This Commentator asserts that Congress has no unilateral constitutional role to play in treaty termination. The later-in-time doctrine, therefore, allows Congress to play an unconstitutional unilateral role in treaty termination "through the back door" by enacting inconsistent legislation.

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