Medellín, Non-Self-Executing Treaties, and the Supremacy Clause

First, my thanks to Kevin, Peggy, and the OJ crew for a chance to post my own initial reaction to Medellín.

Leaving the international law to the international law scholars, and the Court’s odd parsing of the VCCR’s ratification history to those who are more familiar with it, my own interest in the Chief Justice’s majority opinion in Medellín is in his rather bold attempt to clear up decades of uncertainty over just what, for constitutional purposes, a “non-self-executing treaty” actually is. (I assume, for the sake of argument, that the VCCR’s optional protocol is one such treaty.) Footnote 2 of the majority opinion provides the Court’s new definition:

What we mean by “self-executing” is that the treaty has automatic domestic effect upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.

Whereas forests have been felled on the question of whether a non-self-executing treaty merely fails to provide a cause of action, or also fails to provide judicially enforceable rights, I take footnote 2 as resolving that longstanding debate—and doing so in favor of the latter, broader, view. Indeed, in the paragraph leading up to footnote 2, the point is made even more explicitly—that non-self-executing treaties “do not by themselves function as binding federal law.”

If so, this is an extremely important development, and one that seems thoroughly at odds with the plain text of the Supremacy Clause (to wit, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .”). Is the Chief Justice’s view really that non-self-executing treaties are not “treaties” under the Supremacy Clause? If so, then Medellín overrules a litany of earlier cases that declined to draw such a distinction for purposes of the Supremacy Clause, and sub silentio at that…

I had always thought the more compelling argument was that non-self-executing treaties don’t create private rights of action. On that view, they still create positive law, per the Supremacy Clause, but law that could only be privately enforced through otherwise available causes of action.

Where this distinction would make an enormous difference is where a statute provides a cause of action for the enforcement of “treaties,” without specifying whether the treaty must be self-executing or not. An obvious example, of course, is the federal habeas statute, which provides both jurisdiction and a cause of action for claims by a detainee that “he is in custody in violation of the Constitution or laws or treaties of the United States.” (emphasis added).

I’ve argued previously that non-self-executing treaties should nevertheless be enforceable under the habeas statute, given that the Habeas Corpus Act of 1867 deliberately modeled this provision on the Supremacy Clause, and given that non-self-executing treaties, in my view, are still “treaties” under that constitutional provision.

I’m perfectly happy to accept that I might be wrong; it would hardly be the first time. But would it have been so hard for the Medellín majority to provide more than a cursory explanation for why? Given the significance of the implicit suggestion here–that non-self-executing treaties simply aren’t “treaties” under the Supremacy Clause–at least some analysis might have been helpful…