Comment on Medellin

by Edward Swaine

[Edward Swaine is an Associate Professor of Law at the George Washington University Law School. ]

The quick scorecard on Medellin is pretty simple: Texas wins, the ICJ loses, and the President loses. I have lots of reactions to what the opinions say about the ICJ, non-self-execution, and even comparative law, but let’s just focus on this bottom line.

The first two claims have already been spun. As to Texas, Peter makes the point that freedom may have a price. (And Justice Stevens thought that Texas might step up and take one for the team; I suppose hope springs eternal.) As to the ICJ, Chief Justice Roberts suggests that a sparer approach to self-execution is indispensable for U.S. treatymaking, since any other approach might “hobble” U.S. willingness to enter into agreements by causing too much anxiety about what courts would do. If this reasoning is accepted – and there’s something to it, though I am not persuaded – it probably applies even more forcefully to dispute-resolution mechanisms, so this decision could be celebrated as a shot in the arm for U.S. willingness to go before the ICJ! (Not that it will particularly improve the reception once we get there, but you can’t have it all.)

So what about the third result — the President’s loss? I myself have argued that President should be understood to have the authority to implement even some non-self-executing treaty obligations via the Take Care Clause, which is a constrained kind of power — it authorizes only to the extent it binds. The Court gives that the back of the hand. It also rejects what the executive branch was arguing, which depended on the power to make sole executive agreements, and should be understood as cutting back on attempts to extrapolate from that line of precedent. As many have pointed out, however, the circumstances giving rise to this assertion of presidential power are pretty unusual: Not only is the President trying to embrace an ICJ decision that the United States lost, but he is doing so while continuing to insist that the ICJ was wrong. Not too appealing a pitch, and not too likely to come up in the near future, even if the Court has single-handedly saved dispute resolution.

So is there a countervailing upside for the President, like there is for the ICJ? Something much more substantial, to my reckoning – if not exactly to my liking. The near presumption against self-execution, the reliance on domestic political branches to confirm that presumption, and the deference to executive branch treaty interpretation, among other things, all force the conclusion that it will be yet harder in the future to invoke treaty obligations in court contrary to executive branch interests. Even a marginal change along this line of authority is quite important to presidential authority, since it applies in many more circumstances, and in many cases of keener concern to the President, than will the case’s holdings with regard to ICJ decisions. Geneva Conventions, anyone?

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