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

by Steve Vladeck

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…

http://opiniojuris.org/2008/03/25/medellin-non-self-executing-treaties-and-the-supremacy-clause/

3 Responses

  1. I suspect “some analysis” may be forthcoming in the detainee cases. I haven’t looked at the details of the opinion yet, but I wouldn’t be inclined to read what you quote here as anything but clumsy gloss of Foster v. Neilson, 27 U.S. 253 (1829); overuled on other grounds, United States v. Percheman, 32 U.S. 51 (1833), which refers not to treaties per se, but to treaty stipulations requiring a specific act of legislation for implementation.

    And it’s worth noting the specifics:

    Foster was concerned with the status of Spanish land grants under the treaty which transferred West Florida (now part of Florida, Mississipi, and Alabama) from Spain to the United States. The matter was decided and then overrulled based on two different translations of the Spanish text…


    “A ‘treaty of amity, settlement, and limits, between the United States of America and the king of Spain,’ was signed at Washington on the 22d day of February 1819. By the 2d article ‘his catholic majesty cedes to the United States in full property and sovereignty, all the territories which belong to him, situated to the eastward of the Mississippi, known by the name of East and West Florida.’

    “The 8th article stipulates, that ‘all the grants of land made before the 24th of January 1818 by his catholic majesty, or by his lawful authorities, in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.’ ”

    Id, 310.

    The decision was based on the fact that the State legislature had not “ratified and confirmed” the grants…


    “Whatever difference may exist respecting the effect of the ratification, in whatever sense it may be understood, we think the sound construction of the eighth article will not enable this Court to apply its provisions to the present case. The words of the article are, that ‘all the grants of land made before the 24th of January 1818, by his catholic majesty, &c. shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.’ Do these words act directly on the grants, so as to give validity to those not otherwise valid; or do they pledge the faith of the United States to pass acts which shall ratify and confirm them?

    “A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

    “In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

    “The article under consideration does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of congress which [27 U.S. 253, 315] were repugnant to it; but its language is that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.”

    Id., 314-315 (Chief Justice Marshall, per curiam).

    Note that there isn’t a hint in the opinion that the existence of this stipulation regarding land grants renders the entire treaty — and the transfer of West Florida to the United States — null and void absent legislation.

  2. Ok, this is what I don’t get about the opinion–why does the majority assume that ratifying a treaty that is not in the end self-executing means that Congress has affirmatively deceided that no one should have any rights under the treaty unless they affirmatively pass legislation to create such rights? Why isn’t it equally plausible to assume that by ratifying a Treaty like this one Congress is saying that, while the Treaty itself does not create any rights someone can directly rely upon, we are committing this government to respect the norms created by the Treaty and to endeavor to ensure that the Treaty is given effect in an appropriate manner? If you read Congress’s intention in that way, wasn’t President Bush’s action in line with Congress’s intent or–at a minimum–not hostile to it? If that is so, I think his claims of executive power here are much stronger than the Court suggests.

  3. 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.

    I don’t know if this is why the Court shied from holding as you suggest, but I think that once you hold that a treaty is in fact federal law under the Supremacy Clause, it is going to be enforceable in Court. I think cases like Shaw, and more recently Verizon Maryland and Arkansas v. Ahlborn implicitly, but strongly, support the view that the Supremacy Clause itself provides a cause of action to assert the preemptive effect of federal law. If that is so, then the Court couldn’t treat a treaty as “federal law” and yet avoid it being enforced through litigation.

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