The Supreme Court handed down its decision in Medellin v. Texas today. Chief Justice Roberts wrote the majority opinion, which held that neither a judgment of the International court of Justice nor the President's executive order directing state courts to follow the ICJ's judgment constituted federal law that pre-empts a state's pre-existing bar on the litigation of subsequent habeas petitions. Justice Stevens concurred in the judgment, while Justice Breyer wrote a dissent on behalf of himself and Justices Souter and Ginsburg.
This appears to be quite a significant win for Texas (and states) that wil lhave significant ramifications for both separation of powers and the application of international law in U.S. courts. While I have yet to read the opinion, I think it is significant that C.J. Roberts wrote an opinion for a unified majority. There's no hair-splitting Kennedy concurrence here, nor is there an opinion from either Justice Thomas or Scalia complaining that the Chief made too many concessions.
Here's an early AP report on the decision. SCOTUSBlog has some instant reactions here and here. Opinio Juris is also hosting an insta-symposium on the decision that should fill up in the next few days. Time permitting, I'll have more once I've digested the case as well.
Related Posts (on one page):
- Democracy and International Human Rights Law:
- The UN Human Rights Council and the Influence of Nondemocratic States on International Law:
- The U.N. "Human Rights Council" Again Urges Speech Suppression:
- Should the United States Obey the Decisions of the International Court of Justice?
- Reflections on Medellin:
- A Texas-Sized Win for Texas in Medellin:
I take your point, but I am reminded of Chris Rock's comment on black America's reaction to the O.J. verdict: "'We won! We won!' Really? What did we win?" Unless you want to posit some nightmare slippery-slope scenario that has the World Court taking over American criminal procedure jurisprudence, I'm not sure how this result is good for anybody. In particular, one wonders how the logic of this decision will play out in the realm of trade and commercial treaties.
Actually, to be fair, my problem is with Foster v. Nielson and I can let Roberts slide on stare decisis but I would have liked it overturned entirely. At the very minimum, it would make the Senate much more careful about ratifying treaties - as it is now, they can ratify whatever they want as a piece of international theater while comfortably knowing that it will not be respected by the US - what a sham.
Behold the Roberts Supreme Court, home of robed elites parsing ancient text. What a fine College of Cardinals.
Now, I'm really starting to wonder what is going on with U.S. v. Santos. It's been over five months.
Somebody has to do it, otherwise, what's the point of having the ancient text in the first place?.
Them grapes a little sour this morning? Thought so.
How interesting that the oft-derided Youngstown test got trotted out, once again. Rather eloquently too, I might add.
As a Texan, I'm really ashamed that Texas Prosecutors can't be a bit more zealous in following their duty to advise non-citizens of their rights under the Vienna Convention (although in Medillin's case, since he had been here since preschool, it would not suprise me a bit if he claimed to be an American Citizen upon his arrest, in which case there was no basis to advise him of his Consular rights), and I really wonder why Texas Courts couldn't show a bit more flexibility in the interest of international relations - Heaven Forbid that I have to admit that Oklahoma took a much more reasonable and rational approach to the Avena Decision than did Texas.
Finally, as someone who likes to travel abroad, I'm more than a little concerned that Texas' cavalier attitude to its obligations under the Vienna Convention will result in a reciprocal attitude by some foreign countries, especially Mexico (which, for very valid historical reasons, including our theft at gunpoint of California, Arizona and New Mexico, has since 1848 been very jealous of guarding its sovereignty from "gringo" interference). I'd be much more comfortable about traveling in the future if Texas took action to alleviate tensions about Medillin -- perhaps Governor Perry could commute his sentence to life without parole "in the interest of international relations", and Congress took steps to compel state prosecutors to advise all accused of their rights to consular assistance if they are citizens of a signatory to the Vienna Convention.
But wait -- I thought they would vote to uphold anything President Bush wanted to do, since they're just his lackeys!
Argh -- What's a partisan hack to think?? Which knee-jerk reaction governs??
(head explodes)
As this case was a matter of domestic law (tried in a Texas court--not a federal one) the President has no authority (at least, that's what the court decided). The ramifications of which are probably not as extreme as you'd think (most international treaties don't specifically deal with domestic issues). However, it does bring into question some other things you may not have thought about...
For instance, does this mean that the President does not have the power to commute or pardon people who were convicted in state courts? Something to think about.
Also, if I'm correct there *are* instances in history where state governments have formed treaties with other nations. As an example, it would be interesting if California decided to independently sign on to something like Kyoto. Someone care to point out some historical examples where states signed treaties?
-Riskable
http://riskable.com
"Privacy protects you from the morals of others. One person's meaningless private information is another's smoking gun."
As for states signing treaties, that's barred by the plain language of the Constitution. However, I believe they can sign certain agreements with other countries, subject to federal controls. For instance, the Interstate Emergency Management and Civil Defense Compact (a Cold War mutual aid compact largely, but not completely, supplanted by EMAC) allows for foreign states to join it, although I don't believe that any ever have.
Give it a rest. Ever hear of spoils of war? Next you're going to say land should be given back to the Hapsburgs. If there's a lesson to be learned from Mexico's 1848 boo-hoo plight it's that countries should invest enough to safeguard their defense and territorial integrity.
I refuse to believe that any person who has thus far commented on this decision -- which is barely four hours old -- has actually read the entirety of either of the opinions, much less digested them enough to speak coherently about them or render a reasoned comment on them.
So really, save the histrionics until you've actually read the opinions and thought about the law involved. Seriously.
And yes, I have read both the majority and dissenting opinions. No, a couple of hours is not enough time to digest their full implications, but just like with every other decision of the Court, if you follow the issue closely and know the arguments at stake you can have an educated - if preliminary - response to a decision rather quickly.
I offer up as the first order of important business the repossession by the State of Maine (first in the nation) of Machias Seal Island (from the Canucks; inhabitants are several Atlantic puffin families and a lighthouse).
The world by and large looks at the U.S. with envy and hatred -- coveting our goods while loudly complaining about us, and incessantly demanding more, more, more. The intense anti-American hatred is so thick you could cut it with a knife.
Almost none of the countries that signed Kyoto have been honest enough to abide by it. They do not keep their agreements. But, had the U.S. signed Kyoto, there would be an army of lawyers intent on forcing Americans onto bicycles and into into mud huts -- no matter how bad that would be for American citizens.
With the exception of mutual defense pacts and trade agreements, Americans would be much better off without any treaties. If we insist on handing out taxpayers' money to other countries, the least our government should do is to limit our payout to those countries that publicly and privately support the U.S. Anything less is a gross disservice to the American taxpayers who foot the bill.
Sorry, can't remember any historical instances of states signing "treaties" off the top of my head, but states are allowed by Art. I, sec. 10 of the Constitution to sign "compacts" with foreign powers, subject to congressional consent, just as they can sign compacts among themselves. States can also act internationally without making a compact, but they are subject to preemption, although, depending on what exactly the Medellin case today says, it seems that the preemption possibility may have lessened somewhat (of course Medellin is just about what Texas does in Texas, so once we're all done reading the opinion and it gets hashed out over time it may not have any effect).
Nothing in the opinion suggests that the courts of the state of Texas would not have to comply with claims under the Vienna convention if those claims were properly presented in a timely manner.
Good point. I like both puffins and lighthouses.
Somebody should get a hold of Scalia's copy of the Constitution which discusses the role of the House of Representatives in reference to treaties of the United States.
No, utterly and complete incorrect. None of the Justices of the Supreme Court would agree with that statement in any way. The Constitution is precisely to the contrary. See, for example, US Const. art. vii ("This Constitution, and the laws of the United States which shall be made in pursuance thereof; and 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, anything in the Constitution or laws of any State to the contrary notwithstanding.").
The question in this case was a lot more complicated than that --- in a nutshell, the manner in which the state courts had to comply with a treaty.
"If you are a stinking foreigner you have the right to consult your stinking consulate to better protect your interests than the stinking lawyer we're going to appoint for you for free." My Spanish is not good enough to accurately translate this into the actual warning that would be required.
Did they ask?
I'm sorry... in which reality does a state have any obligation (beyond whatever amusing opinion you'd like to call 'a moral obligation') to comply with a treaty per se?
treaty law - they mean zero in the US without an act
of Congress (at least outside the
transactional arena).
The old saw about international law (there
is no such thing) rears its head.
I would call this largely death penalty driven (no way is this USSCT going to overturn 51 death penalties).
If it was a business law issue, with the chamber of commerce saying we need the treaty and ICJ ruling to have force, then we would see a completely different result, I suspect.
Why have any treaty negotiations if the treaty will not be self executing or if the negotiating parties will not agree to get Congressional/Parlimentary/Diet/Party Congress, etc. approval right away?
This makes the Court and US lawyers (maybe lawyers and diplomats generally) look parochial. Hopefully, we will see more progressive approaches to international law soon. Why have a more progressive approach? Because business is getting more and more international. Roberts needs to get out of the country a bit more (as do his law clerks, US law students, and US lawyers generally). Same could probably be said for EU, UK, China and Japan lawyers - having freer flow of lawyers world wide, as we have freer flow of widgets,
would fit well with Adam Smith, Wealth of Nations, yes?
That's just rhetoric. The point is, who figures out what the obligations are, and who can enforce them? (political branches, states, US courts, int'l courts) Also, note that there's a distinction between self-execution and conferring an individual right (i.e., a treaty might be self-executing in that it bound the federal or state gov't to act in a certain way, but that doesn't mean individuals can judicially enforce it).
Another observation: although technically the defendant was a citizen of a foreign country entitled to contact his embassy, the reality is, according the opinion, that he was here since pre-school. The defendant was very much an American in terms of his home-base.
In the reality inhabited by the U.S. Constitution, as quoted above?
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and 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, anything in the Constitution or laws of any State to the contrary notwithstanding.
I would tell you to petition to amend the Constitution if you don't like what it says, but it appears that the Supreme Court has already amended it for you.
In the reality where the United States Constitution unequivocally and specifically says that "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, anything in the Constitution or laws of any State to the contrary notwithstanding." So, you know, in this reality. '
A swing and a miss . . .
Yeah, good point. This must be why no one has ever really signed treaties over entire history of the modern international system.
Because the People of the United States are the ultimate sovereigns, and they have delegated the area of foreign relations and treaty making to the federal government.
This isn't just something the United States made up.
In more recent years the treaty power has expanded and now touches many domestic issues. This changes things and makes a simple "treaties are binding" reading troublesome. It doesn't make sense in our Constitutional framework to allow the President and Senate to short-circuit the House of Representatives, which is essentially what we're talking about here. The House of Representatives could (hypothetically) strongly oppose enforcing ICJ decisions in US courts. Should the Senate be able to skip approval of the House on domestic law issues?
Ideally we should have a Constitutional amendment making it clear that treaties on domestic issues are not binding without Congressional implementation.
Is this really accurate from an historical point of view? Weren't there any treaties from the 18th century in which governments agreed how they would treat citizens of the other country when they were in their country?
In any case, it has been clear at least since Asakura v. City of Seattle, decided in 1924 about a 1911 treaty between the U.S. and Japan, that such issues are properly part of the treaty-making power:
(empahsis added)
from the first SCOTUSblog link on this thread. Has some subversive feminazi gotten control of this site?
from the first SCOTUSblog link on this thread. Has some subversive feminazi gotten control of this site?
from the first SCOTUSblog link on this thread. Has some subversive feminazi gotten control of this site?
If they kept up with VC comment threads, they would know better, since it's only a concurrence and not really law at all.
I wonder how the five justices, and their clerks, let that one slip?
Basically the answer is yes. Missouri v. Holland is the classic case on this, upholding the validity of the Migratory Bird Treaty in 1920 or so. Technically there are limits on what could be subject to a treaty, but the Supreme Court has never actually struck down a treaty (that is a full, executed treaty) on these grounds. Of course, that really doesn't "exceed the scope of their sovereign grant of authority to the Federal government" since it is then part of the treaty power of the federal government.
As Oren notes, it's venerable law, but even Marshall nods.
Justice Stevens's concurrence seems sensible enough, particularly its closing:
On the other hand, the costs of refusing to respect the ICJ's judgment are significant. The entire Court and the President agree that breach will jeopardize the United States' "plainly compelling" interests in "ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law." Ante, at 28. When the honor of the Nation is balanced against the modest cost of compliance, Texas would do well to recognize that more is at stake than whether judgments of the ICJ, and the principled admonitions of the President of the United States, trump state procedural rules in the absence of implementing legislation.
Would that treaty override the First Amendment?
Take the Lopez decision, Congress lacked the authority to impose gun free zones around schools, is anyone seriously asserting that if Congress negotiated a treaty with Canada requiring 1000 yard gun free zones around schools that then it would be the law of the land? Congress lacks the power to negotiate by treaty what it lacks the power to do by law.
So the question is does Congress have the authority to pass a law requiring the states to inform alien defendants of their right to access their consuls? I don't think so, it then follows that Congress can not impose that burden by treaty.
In reality, treaties are often intentionally drafted to be purely aspirational documents which are not intended by the parties to be given the force of domestic law.
The treaty at issue falls under that category.
It would seem not, but surely someone else has a citation on point. Otherwise, the Senate and President could theoretically conspire to "amend" the Constitution without the House or 3/4 of the States.
So the question is does Congress have the authority to pass a law requiring the states to inform alien defendants of their right to access their consuls?
Kazinski's comparison to Lopez fails because Lopez involved the Commerce Clause. I would look to the Necessary &Proper Clause. Anyone who's actually up on this stuff got a thought?
This was a case of the President (who I generally support) seriously overstepping his bounds, and I think it's a victory for federalism that SCOTUS drew the line.
I'm also curious just what effect any of this was supposed to have had on this particular case. "Reasonable" notification of a consulate is three days. Medellin confessed within three hours. Lack of consular notification had absolutely nothing to do with his confession.
You know, that is actually not a bad point you make there.
A side note: "purely aspirational" made me think of the Kellogg-Briand pact, in which we renounced war as an instrument of national policy, with the Senate's reservation of a self-defense exception.
If Wikipedia may be credited, the Pact remains law.
I wonder whether this has any connection with the fact that we have not "declared war" since 1941?
As for the people above worried about our standing in the world, give me a break. If the world hates us because we don't do what they want us to do, then, oh well. We'll just have to find the courage to carry on without the approval of those who hate us no matter what.
The United States routinely follows the rulings of the World Trade Organization. Do the treaties creating the WTO or using the WTO include enforcement provisions?
Do US statutes enforce the treaty provisions?
IMHO, this reasoning is confused. Lopez did not hold that Congress was "forbidden" by the Constitution to enact the law at issue. Rather, it held that the law was beyond the enumerated powers of the federal govt., including the Commerce Clause.
The power to make treaties is indeed enumerated in the Constitution. Although that power is not infinitely elastic -- it cannot be used to regulate purely domestic matters -- it is still quite broad. As I quoted above from Asakura, the treaty power "does extend to all proper subjects of negotiation between our government and other nations." In other words anything that touches on foreign relations is within the treaty power enumerated in the Constitution.
In this case, I don't see what is so amazing about holding that the subject matter is within the treaty power. How citizens of one nation are treated when they are within the borders of another nation is, to my mind, something clearly touching upon foreign relations. If an American citizen is mistreated when he or she is abroad, that is a matter of concern for the United States, and specifically for the federal govt. I would expect the State Dept. to be concerned and get invovled in such a case.
The way this issue has been dealt with for centuries is reciprocal arrangements between nations codified in treaties. Our fair treatment of foreigners on U.S. soil is the quid pro quo for foreign countries' fair treatment of U.S. citizens on their soil.
So yes, I think Congress DOES have the power to require states to inform the pertinent consulate or embassy that a citizen of that country is about to be prosecuted in that State.
There is a need to follow this agreement, there just is not the force of law compelling Texas to do so. Parties follow aspirational agreements because it is in their best interest to do so. That is the essence of the Stevens concurrence.
Anderson--Thanks for responding. The aspirational thing was sort of my point; if it's clear that some treaties weren't intended by their drafters/signers/ratifiers to be self-executing, it can't somehow be absurd to consider those treaties non-self-executing in the future, right?
"So too here the lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts."
DID I READ THIS RIGHT??? Are Roberts, Alito, Scalia, and Thomas taking judicial notice of what other countries are doing? Are you kidding me? I never want to hear another conservative complain about Atkins, Roper, and Lawrence ever again!
I suppose that we could sign a treaty declaring that "What the world needs now is love, sweet love" without there being any right to love on which an individual could bring suit.
Ummm, Bart, have you ever had someone make a promise and then break it? Ever felt anything negative about that person?
The United States entered into a treaty. That is a promise to do something. Can you understand that someone might resent the notion that a country like the U.S. promises to do something, and then simply refuses to follow through?
And as for carrying on, do you ever intend to travel abroad? Have any relatives who plan on it -- for business or pleasure?
Let's say in the course of your travels, you run afoul of the local law. Would you not like to pick up the phone and call the nearest U.S. consulate to help you?
Wouldn't it be nice if we could get the foreign country to agree in advance to allow you to make that phone call? Suppose they did (actually almost all countries did.) Then suppose the local police said, ahh, that is just a treaty. Who cares what you gringo's think. Let's just give you a quickie trial and throw you in the slammer.
Fennel, can you see the difference between quoting foreign decisions (1) when interpreting a treaty entered into by both the U.S. and those foreign countries and (2) when interpreting the U.S. Constitution, a domestic document enacted by the People of the United States?
No, at least in theory. "This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." - Reid v. Covert, 354 U.S. 1, 17 (1956)
On the other hand, it happens all the time in practice.
"Yeah, good point. This must be why no one has ever really signed treaties over entire history of the modern international system."
So why have lawyers out there drafting what are in effect "letters of intent"? Sure it can be done, but why not have the diplomats and lawyers
stay home and play charades? International public law is ripe for improvement, to keep pace with private international law.
Compare Pennzoil/Texaco, where the whole letter of intent idea was thrashed out a bit. Maybe the USSCT could and should say that the treaty gets "self executing" treatment as a presumption and the lawyers and diplomats need to be specific if they want to just have the equivalent of a "letter of intent". Not in a death penalty case, of course, but when ExxonMobil or someone like EM is in trouble.
That is not my quote.
So sorry. Meant Brian G.
Fair point, but I'm not so sure. It seems like the Court is interpreting prior precedent (domestic law) to determine whether this Treaty is self-executing or not. Chile might have a law that all treaties are self-executing. Bulgaria might take the opposite approach. So the same treaty might be implemented differently in different countries depending on domestic law (that's certainly the conclusion other countries will reach after reading this decision!). If this is right, then there's little to distinguish this case from Roper, Atkins, etc.
But, I agree, the issue is overblown. I was just surprised that the cite made it into the opinion without so much as a whimper from Scalia.
Wouldn't it be nice if we could get the foreign country to agree in advance to allow you to make that phone call?"
That's not quite the fact pattern at issue in this case. Texas didn't refuse to allow Medellin to contact the Mexican consulate. They simply didn't tell him he had a right to contact the consulate.
I find it surprising that no one's mentioned that this whole mess probably wouldn't have become an international incident if not for some bad lawyering. Medellin's lawyers failed to raise the issue of consular access at trial, so the Texas appeals court ruled that he couldn't raise the issue on appeal. Had his trial lawyer been on the ball, this whole issue might have been resolved long ago.
Now, as a legal matter, there isn't a distinction, but as a practical matter, it means that these sorts of international agreements can't possibly be very specific or easily applicable to differing situations.
If you don't like that one, how about if Congress ratifies a treaty that requires local law enforcement to conduct background checks on gun purchasers? That seems to paralell this case even better. Congress lacks the authority to require local officials to do background checks on gun purchasers based on the 10th amendment (is that still around?).
Seems exactly the same principles here. I do think that Congress could pass a law requiring a state court judge to notify the defendent of his consular rights at a pretrial hearing, and thus it would be something Congress could ratify a treaty mandating.
Mark Movsesian of St. John's argues contra that Roberts' opinion is a good thing, but he doesn't really address how it is consistent with the Constitution. In fact, he ends his little analysis with this phrase:
Nothing to see here, let's keep it moving.
Maybe the Supremnacy Clause has become quaint.
But what does consular access have to do with Medellin getting a fair trial? He might have had the right for his grandmother to come visit him in jail too, but wasn't so advised, it wouldn't have made any difference whether or not he had a fair trial.
This isn't a case where a defendent had his right to a fair trial violated, or illegal evidence was used, this is one of those cases, and we all know it, where every technicallity possible is being used to void the death penalty. The right to consular access is to help ensure the defendent got a fair trial, well Medillin did get a fair trial. It was a harmless error.
I admit to being relatively unconcerned about Medellin's fate, though I would like to know more about the 50 other guys. If this was the only appealable issue arising from his trial, then he was doing pretty well for the Fifth Circuit.
As I understand it, the issue is not whether he was advised of his right to consular access during trial, it is whether he was advised of his right before being interrogated (during the course of which he confessed). It's analogous to Miranda, in that had a consular official been present they would probably have told Medellin to keep his mouth shut the same way a lawyer would.
The bad lawyering occurred during his trial, when his lawyer should to have moved to exclude the confession on the grounds that Medellin was not advised of his right to contact the Mexican consulate. Since his lawyer did not do so the Texas appeals court ruled that the issue couldn't be raised on appeal, which led to this case going all the way to the ICJ and the Supreme Court.
What on earth does that have to do with Supremacy?
If the issue is, like you said, that his trial lawyer screwed up, then isn't this just another death penalty case where the defendant was poorly (not necessarily to the point of lacking Due Process) represented at trial? As I recall, inadequacy of representation was one of the many reasons Illinois put a moratorium on the death penalty. I know Texas loves the death penalty but if the lawyer didn't think about raising Medellin's treaty rights how good could he/she have been the rest of the time?
Whereas forests have been felled on the question of whether a non-self-executing treaty merely fails to provide a cause of action, or also fails to provide judicially enforceable rights, I take footnote 2 as resolving that longstanding debate--and doing so in favor of the latter, broader, view. Indeed, in the paragraph leading up to footnote 2, the point is made even more explicitly—that non-self-executing treaties “do not by themselves function as binding federal law.”
That's the part he thinks may conflict with the Supremacy Clause. In a comment to his post, Charles Gittings suggests that Vladeck is simply reading the passage more carefully than it was written.
(AP) The Bush administration has determined that the funding of judicial salaries can no longer legally be made, according to high administration sources. The problem is apparently that, while the statutes do set a clear amount for the salaries of the judges and justices, administration lawyers have determined that the statutes are not self-executing, and the administration therefore without the power to allow the money for salaries to go to the judicial branch.
Administration lawyers have not yet determined whether salaries already paid will have to be returned. It is estimated that the cost to Justice Stevens alone would be in the millions.
Sorry, I did a clumsy synopsis rather than just excerpt the quote as Anderson did.
Gittings' comment doesn't exactly clear up the muddy water for me. Then again I'm just a poor corporate guy who's unconvinced by Chief Justice Marshall's certainty over a clause that uses future tense rather than present tense. But as the Supreme Court has been known to say on occasion, that was then and this is now (and shall be later, if appropriate action is taken).
But he didn't have a right to have consular access before being interrogated. He had a right to have the consulate notified within a "reasonable" amount of time after his arrest, which is three days. He confessed within three hours. If the courts had reached the issue, they would've found the problem harmless.
But I don't understand how the Court could argue that Congress's failure to act on the treaties at issue here is anything other than the “congressional inertia, indifference or quiescence” from which Youngstown said the President could derive support for exercising Presidential powers, in the Twilight Zone created by the absence of either a congressional grant or denial of authority.
I can't speak for Anderson, but where in any of my comments did you get the idea that I did not believe in the distiction between self-executing and non-self-executing treaties. Given its long history, I agree that the doctrine is legitimate indeed. And I would not abandon it by judicial fiat (tinker with it sure, but that's normal). Regardless, however, of whether a treaty is self-executing or not, it is still the "supreme law of the land" binding on the States (which was the precise issue to which I spoke). If it is not self-executing then that means that violations of the treaty need to be dealt with on a diplomatic level, but it does not free every state and federal official from complying with their oath to support &defend the Constitution of the United States (which says treaties are the supreme law of the land, anything in state law notwithstanding). That was my objection to Texas's and its laughing-stock of a judicial system's actions. They don't care about the law. That is why I said above that I thought Justice Stevens hit the nail on the head. Look at the way Oklahoma responded to the ICJ decision -- no problems; give the guy an evidentiary hearing, find that there's no prejudice (as will almost always be the case), and then you are done with the matter.
Why provoke this state-federal conflict? and this international conflict? Why not just take the easy route, that also happens to be the one that clearly complies with our treaty obligations? Texas's judicial system (with its supreme criminal court made up almost solely of ex-prosecutors) is akin to a 3rd world backwater and we should all be ashamed of it. It's an utter joke that tars the reputation of other states with the death penalty who actually try to make sure that people they execute are guilty and had their constitutional rights secured.
Yes and no. See Missouri v. Holland, a Supreme COurt decision from 1920 I think. Basically, the Treaty Clause in conjunction with the necessary &proper clause gives Congress the power to create legislation necessary and proper to bring any Treaty obligations into effect. So, it's just another Congressional power, like the Commerce Clause. But, just like the Commerce Clause, Congress cannot use that power in a way that infringes on guaranteed rights, such as the 1st Amendment right to free exercise of religion and the prohibition on the establishment of religion.
So the question is does Congress have the authority to pass a law requiring the states to inform alien defendants of their right to access their consuls?
If Missouri v. Holland remains good law -- and fwiw, I can't think of any rational reason why it should not be -- then yes, Congress could do that.
Here's my question:
Roberts would leave it to the "political branches" to decide whether to give aggrieved parties (in this case, convicted murderers who weren't advised of their consular communication rights).
As one of the commenters above noted, isn't that exactly what President Bush did? As the chief decider, he decided that Texas should acquiesce in the ICJ's decison.
So if that wasn't enough, what is?
An act of Congress? Precisely what kind of act of Congress could bind a state judicial system? Congress would need find some federal power. I'm not sure what it would be; perhaps the 14th Amendment? Perhaps equal protection to citizens of other countries? But what's "unequal" here? After all, U.S. citizens accused of murder don't have the right to any special consultation with Condoleeza Rice. If anything, the Convention gives aliens more rights than U.S. citizens.
So this is a question for the political branches, but the political branches would seem to have no ability -- short of a Constitutional Amendment, that is -- to implement the Convention's protections.
And that's the problem with this decision. The logic is:
-- the Convention is not self-executing
-- a non-self executing treaty may be made part of U.S. law by an Act of Congress
-- Under the constitution, Congress has no authority to meddle in a purely state function, such as a state's rules of criminal procedure
-- under treaty law (the Vienna Convention on the Law of Treaties, accepted as customary international law even by non-ratifying states), a state-party (the USA) has the obligation to implement the terms of the treaty; treaty obligations are also binding on the component parts of federal states
-- Under the Medellin decision, the federal government is basically powerless to compel the states to implement the provisions of the treaty.
The decision is a rather extreme exercise of federalism. After all, it's not like the Supreme Court has been shy about ramming new "constitutional" doctrines down the throats of state law enforcement. By Supreme Court fiat, law enforcement officers must read suspects their Miranda rights prior to engaging in custodial interrogation. This "right" was fashioned out of nothing.
Yet the federal government here has expressly recognized a "right" -- the right to consular communication -- and the Supreme Court doesn't see fit to bind the states to that right.
And that's kind of how I saw this case coming out: a new "Miranda," in which the S.Ct. says "we're not doing this to comply with the ICJ's order; we're doing this to ensure due process, as an alien's lack of familiarity of a foreign legal system underpins the Vienna Convention's requirements." That would've been the easy way out.
This way is hard ... and rather unsatisfactory I think.
That is such an interesting point that I wonder whether the parties failed to brief it?
But I'm still not certain that would work. For example, a thought experiment:
The Radical Green Party -- an offshoot of the original Greens, who found the original Greens to be far too lax in their commitment to environmentalism -- takes control of Congress and the Presidency in 2030. The Radical Greens similarly take control of the Canadian government in 2030.
The Radical Greens believe that humans are not simply the cause of environmental degradation; humans are, by their very nature, environmental degradation. The best way to eliminate the problem is to adopt a China-style one-child policy. The USA and Canada enter into a treaty -- quickly ratified by the US Senate -- implementing a China-style one-child mandate. Sterilization is mandatory after one live birth.
Utah refuses to follow the new policy. Congress enacts legislation under (as Crazy Train suggests) a combination of the treaty power and the necessary and proper clause.
Question: is the new Congressional legislation binding on Utah? Does it exceed enumerated federal powers?
Also, in response to those who have said "but the political branches did act!"--I'm not sure that works. The constitution allows the political branches to act in particular, specified ways--Congress passes and the President signs laws; Congress alone passes amendments; the Senate votes on treaties; most relevant here, the President has some independent authority to do things on his own. But the final category typically doesn't include directly commanding states to do things via letter--it mostly includes power over the federal gov't. It's like the amicus brief in Heller--even though the majority of Congress signed a brief, that doesn't mean it acted to do anything in the constitutional sense. You have to follow the prescribed process for actions to have any constitutional effect.
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If Missouri v. Holland remains good law -- and fwiw, I can't think of any rational reason why it should not be -- then yes, Congress could do that.
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If Printz v. United States, or New York v. United States, 505 U.S. 144 remain good law then no, Congress can not do that. Like I said before though, there is ample precedent for Congress imposing the burdon on the state courts, and I do think it wouldn't violate the tenth amendment.
But I can not think of any federal mandates on local law enforcement that are not required by the constitution or enforced by budgetary sactions that have been upheld by the courts.
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If Missouri v. Holland remains good law -- and fwiw, I can't think of any rational reason why it should not be -- then yes, Congress could do that.
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If Printz v. United States, or New York v. United States, 505 U.S. 144 remain good law then no, Congress can not do that. Like I said before though, there is ample precedent for Congress imposing the burdon on the state courts, and I do think it wouldn't violate the tenth amendment.
But I can not think of any federal mandates on local law enforcement that are not required by the constitution or enforced by budgetary sactions that have been upheld by the courts.
You don't need to speculate, Reid v. Covert was quite clear on the matter:
In my view, Reid v. Covert forbids that since having children is a fundamental (unenumerated) right. This does, however, require the stretch that the Bill of Rights forbids more than what is expressly listed in amendments 1-8.
I think that the SCOTUS can mandate consular representation as a matter of equal protection. The treaty gives every citizen of the various signatory countries the right to consult with their consulate when charged with a crime abroad. Mexican citizens in the US are afforded the same right as American citizens in Mexico. This would be my preferred way for asserting 14A control (although your thought about due process is also acceptable).
In a sense then, we are stuck with this ridiculous "self-executing" standard forever OR we have to say that, starting now, when the Senate ratifies and the President signs they really mean it.
I thought Thomas was far less diplomatic in dealing with Souter's dissent in Kansas v. Marsh, pretty harsh with that whole "it has no basis in law" line.
Footnote 12 sugests nothing of the kind that "the convention against torture is not capable of being enforced as domestic law". It explicitly refers to domestic law being made to execute an non-self-executing treaty, the exact oposite of what you are reading it as suggesting.
The feds are in charge of foreign affairs under the Supremacy Clause. Treatment of foreign nationals would be part of foreign affairs. If complying with consular notification would be an unfunded mandate, I suppose Texas could always turn felons over to the feds. But, because what goes around comes around; I would expect Texans to treat Mexicans the way Texicans would like to be treated during their forays to Nuevo Laredo, etc.
The treaty power is a distinct power. It does not just mean that Congress and the President can act through treaties. It is a distinct grant of Federal power in issues that reasonably impact foreign policy. This certainly can include how foreign nationals are treated by state law enforcement.
It is, however, clearly bounded by amendments that specifically limit what the government can do.
I would, however, argue that you are quite correct if the treaty doesn't seem to reasonably impact foreign policy. A good example would be a treaty with Canada to enact gun free school zones.
I am not conflating "what Congress may not have the power to do (because the body of the Constitution can be argued not to give it) with what Congress does not have the power to do (because amendments take it away no matter what the body seems to say)."
The court ruled pretty narrowly in this case, that Congress needed to act to implement the treaty before it could be enforced against the states, but I can see the case headed back around again if Congress does act. Because the next issue is can Congress order state and local officials around.
Oren's hypothetical supports Medillin, the local officials were arguing that they shouldn't violate federal law and return the marijuana, even though no one doubts that Congress does have the authority to outlaw marijuana. The state courts ruled that local law enforcement could only enforce state and local laws, and they had to return it because no state or local laws were violated.
The word 'treaty' has already been reserved for things having the force of law.
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).” Post, at 26. 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.
Breyer set himself up for that one, big-time.
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