Yesterday, the Court of Criminal Appeals of Texas rejected the claim of Jose Ernesto Medellin that a Presidential memo to the U.S. Attorney General entitled him to habeas relief because of violations of his rights under the Vienna Convention on Consular Relations. (Read the court's decision here.) The President's memo invoked his foreign affairs power and the Supremacy Clause to assert authority to waive procedural default rules in state courts, and the U.S. government argued on Medellin's behalf in the Court of Criminal Appeals. In particular, the memo asserted that the President had the authority to require states to comply with the International Court of Justice's ruling in the Avena case. There, the ICJ held that state rules of procedural default could not be invoked to defeat Vienna Convention rights to consular consultation. The ICJ's ruling made considerable sense because a central feature of the Vienna Convention is that it confers a right of arrestees to be notified of their right to consular consultation; a suspect who has not been notified of his rights to consultation can hardly be said to knowingly waive those rights when he doesn't then seek consultation in a timely manner. (For further discussion of this point, see my FindLaw column on the same issue in the earlier ICJ litigation in the LaGrand case.)
Nonetheless, in June of this year, in the Sanchez-Llamas case, the Supreme Court ruled that notwithstanding Avena, states could apply procedural bars to Vienna Convention claims. Neither the Vienna Convention nor its optional protocol (from which the U.S. has withdrawn prospectively) made ICJ rulings directly operative in the U.S., the Justices said. The question for the Texas Court of Criminal Appeal was whether the Presidential memo changed that. Its answer was no: The President is without constitutional authority to convert an international obligation that the Supreme Court says is not binding on U.S. courts into one that is.
There are countless interesting aspects to this case but I'll just mention one here. It may be less of a defeat for internationalists than it at first appears. For if the President cannot overenforce an international obligation, then perhaps neither can he underenforce one. If that's right, then we might see yesterday's ruling invoked for the proposition that other international obligations that the Bush Administration has tried to avoid are nonetheless binding on federal and state courts, at least unless and until superseded by Congress.