Thursday, March 27, 2008

A Bit About Medellin v. Texas

On Tuesday, the Supreme Court handed down its decision in Medellin v. Texas.  The case presented some interesting questions about the interpretation of treaties and (more directly relating to the proposes of this blog) presidential powers to implement U.S. treaty obligations.

In 1993, José Ernesto Medellín was arrested and charged with a brutal rape and murder in Texas.  Police informed Medellin of his rights under the Constitution but did not tell him about his right, under the Vienna Convention, to speak with a Mexican consular officer.  Medellin was convicted and sentenced to death, and his direct appeals were denied.  Medellin then filed a state habeas corpus motion, which was denied because Medellin had failed to raise an objection to this procedural breach at trial or on direct review.  That judgment was affirmed by the Texas Criminal Court of Appeals. 

However, in 2004 the International Court of Justice (often known as the world court) decided in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) that the United States had violated the Vienna Convention rights of Medellin and 50 other Mexican nationals.  The ICJ ordered the U.S. "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals," without regard to state procedural default rules.  In 2005, President Bush issued a memorandum to the Attorney General purporting to require state courts to comply with the Avena decision.* 

Medellin then filed another habeas petition in Texas, based on the ICJ Avena decision and the President's Memorandum.  The Texas courts concluded that neither was binding on state courts and rejected the petition. 

The Supreme Court granted cert. in Medellin to answer two questions: whether the ICJ judgment in Avena bound state courts by its own effect, and if not, whether the President's Memorandum made Avena binding.  On Tuesday a 6-3 majority of the Court answered both questions in the negative.

The Court's conclusion on the first issue is actually a fairly straightforward bit of treaty interpretation (though it  required a quite lengthy chunk of discussion to explain).  The majority (with Chief Justice Roberts writing) concluded that, by the terms of the treaty provisions creating the ICJ process and the Vienna Convention consular access right  ICJ decisions on the subject are not "self-executing."  This simply means that the protections granted by the Vienna Convention must be implemented by further legislative and regulatory actions, and thus are not directly and immediately binding on state and federal courts.

The more interesting (in my view) aspect of the case is the majority's conclusion that President Bush lacked the power to order state courts to comply with Avena.  The Solicitor General offered two justifications for the President's authority to do so.  First, the President was acting within his powers to implement U.S. treaty obligations and Congress acquiesced in his use of those powers.  Second, the President had authority under an international dispute-resolution power to require state courts to apply Avena.

Although the majority analyzed the Administration's first argument through an application of Justice Jackson's tripartite Youngstown presidential powers framework, the essence of the majority's position is that the President cannot implement non-self-executing treaties by his own fiat.  A key passage:

The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.  As this Court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.”  Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.”  The requirement that Congress, rather than the President implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate.

(Citations omitted.) The majority then dispensed with the Administration's second argument, concluding that the President's international dispute-resolution powers (which have questionably been rooted in the "gloss" of Congressional acceptance) are too narrow to apply in cases such as Medellin.

(Medellin offered a third argument on the question: that the President had the power under the "take care" clause (ie. his duty to take care that laws are faithfully executed), which the Court summarily rejected.)

NRO says that Medellin "is one of the most important international law cases in [the Court's] history."  I'm not completely sure about that, but the case does seem to offer two important take-away points.  First, the majority has, perhaps, announced a tighter standard for determining whether a treaty obligation is self-executing or non-self-executing, with the presumption (perhaps a strong presumption) being that such obligations are non-self-executing.  Second, the Court has restated, in very strong terms, the proposition that the President, in the absence of a grant of authority by Congress, lacks the power to enforce treaty obligations that are not self-executing though judicially-binding mandates.  Although the majority took pains to (in a footnote) state that it was only deciding the case before it, it's hard to see how the Court could find many, or even any, exceptions to that proposition in the future while remaining faithful to this case.

Finally, though it is much less important than the substantive legal implications outlined above, I was taken by the fact that Chief Justice Roberts's majority opinion is more harsh toward the dissenters (Justice Breyer, joined by Justices Ginsburg and Souter) than any of his prior opinions that I can recall.  Here, for instance, is one of a great  number of shots at Justice Breyer and cohorts:

The dissent faults our analysis because it “looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).”  Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty.  The interpretive approach employed by the Court today—resorting to the text—is hardly novel.

From Chief Justice Roberts, that demonstrates an almost Scaliaesqe level of dismissiveness.


* I have included only a fairly cursory explanation of the procedural history of the case here.

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