Medellin Gets Yet Another Day at the U.S. Supreme Court: This Time He Should Win

Jose Medellin, the Mexican national facing a death sentence in Texas, is getting his second day at the U.S. Supreme Court today. Medellin is seeking to suspend his execution due to U.S. violations of the Vienna Convention on Consular Relations in his arrest and subsequent conviction and the International Court of Justice’s interpretatin of those obligations. Medellin’s earlier petition to the Court was dismissed on prudential grounds but he’s back now, fortified this time with the support of the Bush Administration.

Medellin has a much better chance this time, largely because the Texas state courts issued a strangely unpersuasive opinion rejecting his claims, and especially because he has the power of the Presidency behind him in the form of an executive memorandum from President Bush purporting to order the Texas courts to implement the ICJ judgment.

I’ve been critical of attempts to directly implement the ICJ’s relevant judgments without action or support of the political branches. So I agree that Medellin should not be able to directly enforce the ICJ’s judgment in U.S. courts. But now that the President has entered the fray, I’ve come to the conclusion that the ICJ’s judgment should now be followed.

Although lots of people I respect disagree on this point(including my friend and sometime co-author John Yoo and my friend and sometime guest-blogger Michael Ramsey), I don’t think this is an unprecedented or dangerous exercise of presidential power against the states. This doesn’t open the door to the President unilaterally overriding state laws based on “foreign policy concerns,” as Ramesh Ponnuru of NR argues here.

In my view, the President’s authority here flows from his traditional authority to settle claims disputes with other countries pursuant to international dispute resolution agreements. Franklin Roosevelt nullified U.S. citizen property rights under state law to settle claims with the former Soviet Union in U.S. v. Belmont. Ronald Reagan nullified similar U.S. citizen rights to settle claims with Iran in Dames & Moore v. Regan. In this case, President Bush is also acting to settle claims with Mexico pursuant to two international agreements: the Optional Protocol of the Vienna Convention on Consular Relations and the U.N. Charter. The fact that neither of these agreements is “self executing” is not dispositive, because neither the Belmont nor Dames & Moore agreements were “self executing” either. Moreover, this power was confirmed just four years ago by the Supreme Court’s decision in American Insurance Association v. Garamendi. In this case, the U.S. Senate ratified not one, but two agreements, both of which could easily be read as an implied delegation of power to the President to settle claims with foreign countries through a particular dispute settlement system (the ICJ).

To be sure, this does increase the President’s power vis-a-vis the state governments, and I do worry about that. My preferred mechanisms for implementation would have been the state government’s independent decision to follow the ICJ’s judgment (as they sort of did in Oklahoma in a similar case). But the ICJ’s judgment, however flawed, does mean something and some part of the U.S. government must be able to implement it, if that is the considered judgment of the U.S. government’s foreign policy apparatus. The President, in my view, also has the power to refuse to implement the ICJ’s order, at least as a matter of domestic U.S. law.

There are lots of other interesting issues and I’m sure I have missed some arguments, but ultimately I think Medellin should (finally) win here. And I think that there is a decent chance the U.S. Supreme Court will agree.