David C. Weiss, The International Boundary Commission, Treaty Interpretation, and the President's Removal Power, 41 LOY. U. CHI. L. J. (forthcoming).

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Article Abstract:

The International Boundary Commission is a body originally chartered by treaty between the United States and Canada in 1908. Although the treaties establishing the Commission require that the commissioners be segregated from politics and insulated from political removals, in 2007 President George W. Bush asserted his power to fire the U.S. representative to the Commission following a controversy over a private retaining wall that entered the swath of border-land that the Commission is required to keep clear. No President had ever claimed such a right.

This controversy provides the best occasion for discussing important questions regarding the removal power and related separation of powers concerns since the landmark case of Morrison v. Olson. The unique facts of the case and the obscurity of the Boundary Commission also provide leverage on questions regarding the treaty power and self-execution in the wake of MedellĂ­n v. Texas. This Article recovers the obscure history of the Boundary Commission and uses the removal, treaty-making, self-execution, non-delegation, and Appointments Clause doctrines to argue that self-executing treaties should be able to limit the removal of inferior officers within constitutionally-dictated parameters. Concluding that the treaties establishing the Boundary Commission were such limitations, the Article claims that the President's removal of the U.S. Commissioner violated U.S. law and in doing so harms U.S. reputation in international law, contributes to a perception that the United States, at times, can be an uncooperative international actor, and undesirably politicizes an office created to promote technocratic expertise.