A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!

I wanted to jump in with a quick response to Marty’s awesome post about what is, without question, the most surprising (and for me, delightful) part of the Medellin opinion: Justice Stevens’ concurrence.

I love this concurrence, especially because I am (to put it mildly) rarely fond of Justice Stevens’ forays into foreign relations law. This is, after all, the author of both Rasul and Hamdan. But give the Court’s senior justice his due: Justice Stevens seems to be genuinely constrained by his view of the law, and not his very clear policy preferences (to rule for Medellin). This may be true of the other Justices, but it is much harder to tell.

So here’s my take on his thinking: Article 94 does not, in his view, require the United States to comply with the ICJ ruling. All it has to do is “undertake to comply,” which in his reading, is not a mandatory obligation. So the Supremacy Clause is imposing a non-mandatory obligation on the U.S. here and neither authorizes the President’s action nor requires Texas to do anything. All Texas is obligated to do is whatever the U.S. is obligated to do, which is to “undertake to comply,” which is non-mandatory.

To put it another way, the “obligation” here for Texas is one of upholding honor and integrity with respect to conduct with foreign nations. Justice Stevens is recognizing here something that I have argued in a number of law review articles (at greatest length here): state governments have often believed they had the primary duty to manage certain aspects of foreign relations that intersected their domain. And the federal government has often agreed that the states have this task, and has left such questions to the states. (Recall that in both the Breard and LaGrand cases, President Clinton basically took that position with respect to those earlier ICJ rulings).

This is why Stevens is asking, pleading, for Texas to come to its senses and give Mr. Medellin his hearing. He is recognizing that, in the U.S. system, the states often are the only governmental entities empowered to fulfill certain treaty international law obligations (although they have no constitutional duty to do so). It is a bit a strange result, but it is actually (in my reading of historical practice) hardly unprecedented.