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