Ignoring Constitutional Text
In Sanchez-Llamas v. Oregon, the Supreme Court engaged in a practice that, sadly, is becoming increasingly common in cases where an individual litigant raises a claim or defense on the basis of a treaty. The Court ignored the relevant constitutional text. Despite the fact that the text of the Supremacy Clause explicitly addresses a central issue in the case, the majority analyzed the case as if the Supremacy Clause simply did not exist.
Sanchez-Llamas presented two distinct questions about judicial remedies for violations of the Vienna Convention on Consular Relations (the VCCR). This comment focuses on the question whether, and in what circumstances, state procedural default rules preclude state habeas petitioners from raising VCCR claims. Whenever U.S. law enforcement officers arrest a foreign national, Article 36 of the VCCR obligates the United States to notify the arrestee that he or she has a right to consult with a consular official. In the Bustillo case, which was consolidated with Sanchez-Llamas in the Supreme Court, Virginia violated article 36 by failing to notify Mr. Bustillo of his right to consult with a consular officer.
The question arises: who committed the violation? The answer to this question depends on who had the duty to inform Mr. Bustillo of his rights under the VCCR. The Court’s analysis in Sanchez-Llamas is premised on the unstated assumption that the arresting officer is the only person who had a duty to inform Mr. Bustillo of his rights. That assumption is wrong. The text of the Supremacy Clause specifies that “the Judges in every State shall be bound” by treaties. It bears emphasis that the Constitution does not say that police officers are bound by treaties, or that lawyers are bound by treaties: it says that “judges in every State” are bound by treaties. Thus, under the express terms of Article 36, the U.S. was obligated to “inform [Mr. Bustillo] of his rights under” the VCCR. Moreover, under the express terms of the Supremacy Clause, that obligation was directly binding on every judge in the State of Virginia who conducted pre-trial or trial proceedings in Mr. Bustillo’s case. (Mr. Bustillo never learned about his VCCR rights until after the trial was over.) In short, every judge in the State of Virginia who presided over pre-trial or trial proceedings violated Mr. Bustillo’s rights under the VCCR.
The majority in Sanchez-Llamas stated that our adversarial system “relies chiefly on the parties to raise significant issues and present them to the courts . . . at the appropriate time for adjudication.” This is undoubtedly true, but it begs the question: what was the appropriate time to raise the issue of the VCCR violation? If the violation was complete before trial, as the Court tacitly assumed, then the appropriate time to raise the issue would have been at trial. In fact, though, under the express terms of the Supremacy Clause, the trial court had an ongoing duty to inform Mr. Bustillo of his rights under the VCCR: a duty that the court continued to violate throughout the trial.
The distinction between a violation that is complete before trial and a violation that continues throughout the trial is fundamental. As the Court in Sanchez-Llamas properly noted, it is the defense attorney’s responsibility to raise an issue at trial if the violation occurred before trial. But in cases where a judge violates a duty owed to a criminal defendant, and the judge continues to violate that duty throughout the trial, our legal system generally provides some form of meaningful post-conviction review. The State of Virginia never provided meaningful post-conviction review for Mr. Bustillo. In Sanchez-Llamas, the Supreme Court condoned the state’s failure to do so.
The Framers included treaties in the Supremacy Clause to resolve a concrete problem. Under the Articles of Confederation, judges in state courts consistently refused to enforce treaties. The Framers thought they had solved this problem by stipulating in the text of the Supremacy Clause that “the Judges in every State shall be bound” by treaties. As Alexander Hamilton explained in Federalist No. 22, “[t]he treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must . . . be ascertained by judicial determinations.” Unfortunately, courts today routinely ignore the Supremacy Clause and decide treaty cases as if the Clause did not exist. In doing so, they perpetuate the problem of treaty violations by state officers, the very problem that the Framers thought they solved by making treaties directly binding on state courts.