Thoughts on Medellin v. Texas.

• Author: Monson, Kristofer
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

This article explores how the Supreme Court's decision in Medellin v. Texas affected the scope of presidential powers. After analyzing the Court's rationale and discussing the history of the role of states in treaty ratification, the article ultimately concludes that the Medellin decision properly restricts the ability of the president to bring non-self-executing treaties into force.

CONTENTS I. INTRODUCTION II. BACKGROUND III. MEDELLIN V. TEXAS AND ITS IMPLICATIONS FOR TREATY IMPLEMENTATION A. ICJ Decisions Are Not Self-Executing B. Lack of Presidential Authority to Transform a Non-Self -Executing Treaty into Federal Law Through an Executive Memorandum IV. ANALYSIS OF THE SUPREME COURT'S REASONING V. STATE INVOLVEMENT IN RATIFICATION OF TREATIES VI. CONCLUSION I. INTRODUCTION

At the end of World War II, the victorious Allies imposed a constitution on Japan.(1) The Japanese constitution makes treaties entered into by the government automatically supersede contrary domestic law.(2) This approach made sense: elements of the defeated Empire were unwilling to accept defeat, and the automatic domestic application of international agreements would quell efforts by hardliners in local, regional, and even the national government from reasserting the ultra-nationalist system displaced by peace in the Pacific.

Automatically incorporating multi-national legal norms into domestic law, without further action by domestic policy makers, undoes local political control and power. This is true not only in the international sense, but also internally. It has always been the province of the foreign affairs branch of a sovereign government to honor (or breach) its obligations as it sees fit. It is at least logical (although perhaps politically unworkable) to assume that the executive department of a government could dictate domestic policy in implementing this automatically binding international law.

This analysis is further complicated by the fact that most international agreements are at least initially appealing in the abstract. For example, it is hard to argue against the Kellogg-Briand Pact's asserted goal of making international war "illegal."(3) International agreements often include such teleological goal setting, seeking to establish international standards on issues such as fair wages,(4) the right of self-determination,(5) and sharing natural resources.(6) And yet, these noble objectives are often the same things duly-elected (or for that matter, appointed or hereditary) governments are charged with protecting. Government is in the business of ironing out policy differences that create different interests within the population they represent. Erasing domestic procedures for hashing out these policy differences in favor of achieving an abstract goal, however desirable, creates the impression that the practical impediments to implementing the new policy can be swept aside by its power as an abstract idea. After all, Kellogg-Briand did not work out so well.(7)

2. BACKGROUND

   Medellin v. Texas, using the traditional tools for resolving disputes between the executive and judicial branches in the U.S. system, addressed the difficulty of implementing treaty obligations into domestic law in the context of the U.S. Constitution. The MedeUin majority looked to the text of various international agreements to determine their meaning, an approach the Court justified, in part, by pointing out that plain-text analysis gives greatest effect to the power of the president to pull out of international obligations as appropriate and to the power of Congress to adopt laws that supersede treaty obligations.(8)

   But there is another dynamic at play in the case law governing the internal application of treaty law--the relationship between the states and the federal government. I do not mean to suggest that the states' residual sovereignty somehow overrides federal law establishing international obligations. Rather, I want to investigate the meaning of the president's obligation to consult the Senate before entering into treaties. Judicial interpretation of the abstract ideas in international treaties should not, I submit, be a source of power for either the executive or the judicial branch to make new policies out of whole cloth in the service of abstract principles. This is not only an issue of the relationship between the people of the United States and the federal government, but also of the relationship between the federal government and the states.

   Until the Seventeenth Amendment, the Senate's role in ratification of treaties could be seen as involving the states in the treaty-making process.(9) The senators represented the state legislatures and, as a result, the institutional interests of the state governments. It is only after the Senate became a popularly elected body that the interest of the states, as entities, was severed out of the Constitution's schematic diagram for the exercise of the foreign affairs power.(10) Any understanding of the nature of the president's power with regard to treaties should be understood with regard to the fact that the nature of the entity with which the president must act in concert to effect a treaty obligation has changed significantly.

3. MEDELLIN V. TEXAS AND ITS IMPLICATIONS FOR TREATY IMPLEMENTATION

   The United States Supreme Court's decision in Medellin v. Texas, focused on two legal questions: (1) whether the International Court of Justice's (ICJ) Arena decision was enforceable domestic federal law that preempted contrary state law, (11) and (2) whether a memorandum from the president to the attorney general of the United States, which stated that the United States would discharge its international obligations by having state courts give effect to the Avena decision, was binding federal law that required the states to provide reconsideration and review of capital sentences without regard to state procedural-default rules.(12)

   1. ICJ Decisions Are Not Self-Executing

      Medellin had argued that a treaty becomes law automatically once it is ratified and, therefore, the Court's power to interpret and apply the law was no different from its power to interpret and apply other laws.(13) By virtue of the Supremacy Clause, Medellin argued, the ICJ's Avena decision was directly binding on the state courts.(14) The majority rejected this argument, holding that, in order to be adopted as the law of the United States, a treaty must be "self-executing," meaning that its text manifests an intent to undertake a domestic and substantive obligation, as opposed to a mere diplomatic and international obligation.(15) Substantive domestic law governs court decisions. International diplomatic obligations are a matter for the executive branch to honor or disavow as it sees fit. Given that it is international practice not to treat international obligations as domestic legal norms,(16) it would make little sense to interpret a treaty as self-executing as a background matter.

      Medellin further argued that the treaty was self-executing by virtue of the Optional Protocol to the Vienna Convention.(17) Texas rebutted this argument by pointing out that the Optional Protocol is an accession to jurisdiction but does not otherwise...