Tuesday, March 25, 2008

Supreme Court to Bush: Don't Mess With Texas

Today's Supreme Court decision in Medellin v. Texas has something for everyone. To greatly oversimplify, Texas violated Medellin's rights under the Vienna Convention on Consular Relations when it failed to inform him, upon arrest, of his right, as a foreign national, to consult with diplomatic authorities from Mexico. Medellin was eventually convicted of murder and sentenced to death, but then on state collateral review, he raised his Vienna Convention objection for the first time. That was too late, under the Texas rules, and so the Texas courts didn't reach the merits of his claim. Meanwhile, the International Court of Justice (ICJ) said that states are entitled to enforce reasonable procedural rules affecting how someone raises a Vienna Convention claim, but that rules like the Texas rule are not reasonable under the circumstances. (The best argument for the ICJ position is that the procedural default is a Catch-22: The prisoner doesn't raise his objection in a timely fashion because he wasn't informed of his Vienna Convention rights, which is itself the violation.) The Supreme Court, in the Sanchez-Llamas case two years ago, said that while the ICJ's interpretation of the Vienna Convention was entitled to "respectful consideration," it alone was the final arbiter of the meaning of this treaty as far as domestic effect was concerned. The Court then said that states (Oregon and Virginia in that case) could apply their procedural default rules. That left the United States in breach of its international legal obligations but provided no remedy for individual claimants. Enter President Bush, an unlikely champion of international law and the procedural rights of criminal defendants: He issued a memorandum directing state courts to give effect to the ICJ's ruling in the Avena case. In Medellin's case, the Texas Court of Criminal Appeals told the President to take a walk.

Today's ruling pitted two politically conservative positions---1) distrust of foreign and international law and 2) states' rights---against a third one---3) Presidential power. The combination of the first two was enough to overcome the third. Hence, a victory for Texas and a defeat for the Bush Administration (although I suspect that many in the Bush Justice Department and throughout the Administration are perfectly happy to lose this one).

The Medellin case will likely be cited for some time for the proposition that treaties are rebuttably presumed to be non-self-executing. Justice Stevens, who concurs in the judgment but not in the opinion of CJ Roberts, writes that the UN Charter---which obligates state parties to "undertake[] to comply with the decision of the [ICJ] in any case to which it is a party"---is not crystal clear but is, on balance, best read to commit the compliance decision to the political branches. And he agrees with CJ Roberts that this means Congress, for the President has neither any delegated or inherent power to convert a non-self-executing treaty into a self-executing one by memo.

The dissent by Justice Breyer makes much of the language of the Supremacy Clause: ". . .
all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." That's the same language that makes the Constitution itself applicable without any implementing legislation, and so one would think that the default rule ought to be that treaties are self-executing---unless they expressly purport not to be. A treaty that only obligated the United States "to enact legislation implementing this treaty" would still be the "supreme Law of the Land," but what it would guarantee would still depend on Congressional action.

In two important senses, very little was really at stake in Medellin. First, even if Medellin had won, all he would have gotten would be an opportunity to try to prove that his lack of consular consultation prejudiced his defense. And it's hard to see how he could have shown that, a point Justice Stevens makes in chastising Texas for not following the lead of Oklahoma by voluntarily providing the hearing the President purported to require.

Second, the disagreement over whether to presume that treaties are self-executing or non-self-executing, or whether to have no presumption at all, is a disagreement only over the default rule. If there is the political will to make a treaty self-executing, there will almost always be the political will to enact implementing legislation that renders the self-execution question moot: It's a very rare law that can garner support of 2/3 of the Senate (required for treaty ratification) but can't also get a majority of the House.

Still, there is a real difference here. The relevant treaties in play are multilateral ones over which the U.S. is merely one of many actors able to negotiate language. Further, disputes over treaty application occur long after ratification, when the political dynamics in Congress may have changed significantly. And finally, as we know from many contexts, default rules matter enormously.

Posted by Mike Dorf


Sobek said...

"Today's ruling pitted two politically conservative positions---1) distrust of foreign and international law and 2) states' rights---against a third one---3) Presidential power."

I disagree with your characterization of Presidential power as a conservative position. The conservatives I know value Presidential power only to a limited extent -- most specifically, the prosecution of military and related actions -- not carte blanche by virtue of the office.

And in this case, interpretation of international treaties are by no means within that limited scope of broad presidential powers, so has no effect here.

Michael C. Dorf said...

So the conservative position says the President has inherent power to VIOLATE U.S. treaty obligations by, say, authorizing interrogation methods forbidden by the Geneva Conventions, but lacks inherent power to require COMPLIANCE with U.S. treaty obligations? Got it. Thanks.

Sobek said...

Did ... did you just wink at me? Prof. Dorf, I'm flattered, but I'm a married man.

The President has the power to tell his subordinates what to do (obviously within the bounds of the law). In the case of the Geneva Conventions, Bush made his argument that the Geneva Convention doesn't apply, or doesn't ban these certain practices, or whatever. When the Court says he can't waterboard (or Congress passes legislation, or he signs a more specific treaty, or is constrained by whatever other source of law) then his Presidential power is circumscribed by that law. I think it's a mistake, but there you have it.

The states, by contrast, are not the President's subordinates, and not subject to his dictates. None of the above analysis applies. Only the questions set forth in the Medellin case (which I haven't had a chance to read yet, so I can't get into the details -- but I will say as a matter of instinct that I would prefer to give foreign nationals their consular rights, and I don't see how Texas would be prejudiced) are relevant, and Presidential power is not implicated.

So while I don't purport to speak for "the conservative position," I do reject the notion that conservativism embraces plenary Presidential power. The President needs to be kept within his sphere of influence like all other government bodies.

Anonymous said...

免費A片, ut聊天室, AV女優, 美女視訊, 免費成人影片, 成人論壇, 情色交友, 免費AV, 線上a片, 日本美女寫真集, 同志聊天室, 聊天室交友, 成人文章, 成人圖片區, 色情網站, 辣妹視訊, 美女交友, 微風成人區, 色美媚部落格, 色情影片, 成人影片, 成人網站, 免費A片, 上班族聊天室, A片,H漫, 18成人, a漫, av dvd, 一夜情聊天室, 微風成人, 成人圖片, 成人漫畫, 情色網, 日本A片, 免費A片下載, 性愛, 成人交友, 嘟嘟成人網, 嘟嘟成人網, 成人貼圖, 成人電影, 成人, 中部人聊天室, 080中部人聊天室, 成人貼圖, 成人小說, 成人文章, 成人圖片區, 免費成人影片, 成人遊戲, 微風成人, 愛情公寓, 成人電影, A片, 情色, 情色貼圖, 情色文學, 做愛, 成人遊戲, 成人影城, 色情聊天室, 色情小說, 一葉情貼圖片區, 情色小說, 色情, 寄情築園小遊戲, 色情遊戲, 成人網站, 麗的色遊戲, 色情網站, 成人論壇, 情色視訊, 情色電影, aio交友愛情館, 言情小說, 愛情小說, 色情A片, 情色論壇, 自拍, 癡漢, , 俱樂部, 豆豆聊天室, 聊天室, 色情影片, 視訊聊天室, 免費視訊聊天, 免費視訊, 視訊交友90739 情人視訊網影音視訊聊天室 免費視訊聊天室 視訊聊天 視訊交友 美女視訊 視訊美女 視訊 免費視訊 免費視訊聊天 視訊聊天室 辣妹視訊 一夜情 色情a片 aio交友愛情館 情色電影 情色視訊 色情遊戲 色情 情色小說 一葉情貼圖片區 色情小說 色情聊天室 情色交友 成人論壇 成人網站 色情網站 情色論壇 小高聊天室 女同志聊天室 6K聊天室 080苗栗人聊天室 080聊天室 聊天室尋夢園 UT男同志聊天室 男同志聊天室 尋夢園聊天室 UT聊天室 聊天室 豆豆聊天室 A片 成人電影 成人貼圖 嘟嘟成人網 美女交友 本土自拍 成人交友 成人影片http://ssff01.3b8mm.com/

Anonymous said...

I am so happy to get some last chaos gold and the lastchaos gold is given by my close friend who tells me that the lastchaos money is the basis to enter into the game. Therefore, I should buy last chaos gold with the spare money and I gain some cheap lastchaos gold from other players.

Anonymous said...

酒店喝酒,禮服店,酒店小姐,酒店經紀,制服店,便服店,鋼琴酒吧,兼差,酒店兼差,酒店打工,伴唱小姐,暑假打工,酒店上班,日式酒店,舞廳,ktv酒店,酒店,酒店公關,酒店小姐,理容院,日領,龍亨,學生兼差,酒店兼差,酒店上班,酒店打工,禮服酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,經紀 彩色爆米花,經紀人 彩色爆米花,酒店傳播,酒店經紀 彩色爆米花,爆米花,童裝,童裝拍賣,童裝大盤,童裝寄賣,童裝批貨,酒店,酒店,童裝切貨,酒店,GAP童裝,酒店,酒店 ,禮服店 , 酒店小姐,酒店經紀,酒店兼差,寒暑假打工,招待所,

Anonymous said...

www.eshooes.com .
[url=http://www.pumafr.com]puma shoes[/url]
[url=http://www.eshooes.com]chaussures puma[/url]
[url=http://www.myshoess.com]nike air max ltd[/url]

Anonymous said...


Anonymous said...

酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店經紀, 酒店打工經紀, 制服酒店工作, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀,,