Medellin: My Early Thoughts
The Supreme Court’s Medellin decision today brings to an end a fascinating decade-long series of interactions between the U.S. Supreme Court, the International Court of Justice, and various state governments. Beginning in 1998, the Supreme Court has now weighed in four times on the ICJ’s various interpretations of the Vienna Convention on Consular Relations, the UN Charter, and the ICJ Statute (once in Breard, twice in Medellin, once in Sanchez Llamas). But although I could wish for yet more litigations, I think this is the last one, and it has been (from a legal academic standpoint) a wonderful ride.
The Court’s decision today may be the most important of the four decisions, since it tries to clarify a number of questions about the self-executing treaties and relationship of international judgments and state law, and the President’s power (or lack thereof) to carry out such international judgments. As a whole, Chief Justice Roberts’s decision is clear and (mostly) convincing. And it rightly rejects the more aggressive claims of groups like the ICJ Experts and other international lawyers that filed amicus briefs.
Here are the key holdings, as I see them:
The key portion of the majority’s opinion is its analysis of the key treaty provisions (the Optional Protocol to the Vienna Convention on Consular Relations and Article 94 of the U.N. Charter) to conclude that these treaty provisions are not meant to be self-executing. The line between self-execution and non-self-execution has always bedeviled courts and commentators, but the Court here doesn’t seem deeply troubled. All you have to do is carefully analyze the text of the treaty to determine the intent of the treaty-makers, and perhaps consider some external sources such as the executive’s interpretations of the treaty and other states’ practice under the treaty.
2) The Enforceability of International Court Judgments
The question of whether an international court judgment is enforceable directly in US courts is entirely a question that turns on the particular treaty or statute or executive agreement in question. There is no presumption in favor of enforcing international court judgments. On the other hand, as the Court makes clear, there is no reason that Congress or the treaty-makers could decide to give international court judgments direct enforceability. They just haven’t done so here.
3) The President’s Limited Domestic Foreign Relations Power
Surprisingly, given the general media focus and interest in this case, the President’s attempt to enforce the ICJ judgments through a “Memorandum” does not occupy the Court too much (nor the dissent). The logic is again all about self-execution. If the treaty is not self-executing, then it is not federal law, and therefore it gives the President no further authority. Following Youngstown, therefore, we are at best in category two, where there is no express congressional authority. The President’s general foreign affairs power, recognized by the Court in Dames & Moore and, most recently, in Garamendi, is limited too executive agreements involving civil claims by U.S. citizens against foreign states. (Why this doesn’t also extend to claims by Mexican citizens against U.S. states, or the US in general, is not addressed other than that there is not longstanding practice in such cases).
My General Take:
I am on board for most of the Court’s analysis, which seems fairly sensible and reasonable. It is not overreaching, since it makes clear that there are indeed treaties that are self-executing, and international court judgments that could be self-executing (just not these ones).
The most important part of the Court’s opinion deals with self-execution, since its analysis there is the key the rest of the decision. And I don’t think it creates a “presumption” against self-execution, even against self-executing international court judgments (even though it perhaps ought to). But that is a subject of deep complexity, which I hope others tackle in more depth today.
Where I part from the Court is its rather brief dismissal of its own precedents in Dames & Moore and Garamendi, which I read to recognize that the President could preempt state law claims by virtue of sole executive agreements or a general foreign relations power. This power, it seems to me, seems to fit pretty well here since we have a Presidential attempt to settle a claim by a foreign government by preempting inconsistent state court judgments. But the Court is unimpressed and suggests this would be too different since those cases involved civil claims by U.S. citizens against foreign governments, whereas this involves interference with a state’s police powers.
My instinct has always been that somewhere, somehow, someone in the federal government has the power to vindicate the ICJ judgment led me astray. Absent legislation from Congress, an ICJ judgment is basically meaningless as a matter of domestic law.
There is one legal entity, of course, that has the power to give effect the ICJ judgment as well: the State of Texas. It is interesting that Justice Stevens’ surprising concurrence rested in the end on a plea to Texas to come to its senses and give Medellin a hearing. Good luck! Still, Justice Stevens recognizes that, in effect, we are going to have to rely on state governments to carry out ICJ judgments, absent Congressional action. The States, I’ve argued in prior work, are becoming substantially important foreign policy players. This decision will only enhance this role.