More on Medellin: Why the President Can’t Win

Some really quick unreflective thoughts on the latest Medellin decision:

(1) The ICJ’s interpretation in Avena is still wrong

The Supreme Court’s decision last summer in Sanchez-Llamas did not necessarily foreclose reliance on the ICJ’s interpretation of the Vienna Convention on Consular Relations in this Texas proceeding. But the Texas Court of Criminal Appeals showed no inclination to reach out and extend rights beyond what the Supreme Court required in Sanchez-Llamas. So the ICJ’s interpretation of the Vienna Convention on Consular Relations is confirmed to have no effect in U.S. courts. I think this is a correct holding and have little doubt it will be sustained on appeal.

(2) Is Youngstown a Federalism Case?

The Texas Court spent a lot of time placing this case in the famous Youngstown framework. But Youngstown is a separation of powers case, not a federalism case. President Bush is not trying to affect a federal court’s interpretation of the laws on behalf of a unilateral executive. He is trying to affect a state court’s interpretation of the law on behalf of the national government as a whole.

Now I’m sympathetic to the idea that federalism can act as a constraint on an exercise of even a federal foreign affairs power. But I’m not ready to say it is the SAME constraint as that which Youngstown arguably imposes on executive encroachments of the federal legislative or judicial powers.

(3) President Alone – No. President plus Mexico – Yes

The Texas court had to get around a bunch of longstanding and recent Supreme Court precedent authorizing unilateral presidential preemption of inconsistent state laws. The most recent case, American Insurance Association v. Garamendi, involved presidential actions related to an executive agreement with Germany that preempted a California law.

The Texas court avoided Garamendi by drawing a distinction between an executive memorandum or order and an executive agreement. The former is just a unilateral act whereas the latter has the force of law.

Huh? Putting aside the argument that the President does have at least two treaties to support his exercise of power over the states (as opposed to the one measly executive agreement in Garamendi), this analysis leads to an odd result. When the President acts pursuant to the UN Charter and or the Vienna Convention after an ICJ decision, his act has no effect on state law. If the President signed an executive agreement with Mexico, his acts have full effect over the states.

I’m not sure I buy this distinction. I doubt the Supreme Court will buy it either, but I could be proven wrong.

(4) President Bush Gets No Deference No Matter What

In Hamdan, President Bush acted to try enemy aliens in military commissions pursuant to his interpretations of the relevant statutes, treaties, customary international law. The Supreme Court shot him down on almost all of these fronts giving him almost no deference in the interpretation of those foreign affairs laws.

In Medellin, President Bush acted to try to protect foreign national rights pursuant to his interpretation of relevant treaties. The Texas court shot him down here as well.

The lesson here: President Bush always loses, no matter what substantive result he is trying to achieve.