Medellin v. Texas: Another Set of Early Thoughts

by Ernie Young

As lead counsel on the scholars’ amicus brief in support of Texas, I am not entirely unbiased here. But when one can get scholars with as diverse views of executive power as John Yoo and Erwin Chemerinsky to sign on to a brief arguing that the President has gone too far, it shouldn’t be entirely surprising to find that the Court agrees. Here are some early thoughts on the opinions:

1. This opinion certainly gives aid and comfort to those who have argued for a general presumption that treaties are not self-executing, although it might be a stretch to say it holds as much. The Chief’s majority opinion does strongly reject the dissenters’ opposite presumption, and that is important in itself. But keep in mind that the Chief carefully distinguishes between the different ways that treaties may or may not be self-executing. The Vienna Convention is plainly self-executing in that it binds the Houston police to give warnings without further implementing legislation, and it may be self-executing in the sense that individuals can assert violations on their own in court (the Court doesn’t decide). What the Court rejects is that the ICJ’s judgments under the treaty are self-executing in the sense of being directly enforceable in domestic courts. But Medellin was on unusually weak ground here to argue otherwise, given that the Executive had taken the position that such judgments are not self-executing, and both the Executive and the Court (in Sanchez-Llamas) were on record that the judgment to be enforced was incorrect on the merits. These things are going to have to be fought out treaty by treaty, which is probably the right result.

2. The presidential power holding, although it takes a back seat to the self-execution holding in the majority opinion, may be more sweeping in at least one sense. The Court holds pretty categorically that the President lacks power unilaterally to execute a treaty that is otherwise non-self-executing. In fact, the Court says that a determination that the treaty is non-self-executing means that Congress has implicitly disapproved actions to execute the treaty, placing presidential actions to execute it in Category 3, not 2, under Youngstown. Given the broad and amorphous nature of many of the non-self-executing treaties to which we are parties—think of some of the more open-ended trade or human rights instruments—a contrary holding would have been a broad grant of power to the President indeed.

3. The majority also takes what seems to be a major bite out of the sole executive agreement cases like Garamendi, Dames & Moore, and (looking further back) Pink and Belmont. Chief Justice Roberts says that these cases “involve a narrow set of circumstances” concerning the settlement of claims against foreign nations. It will be harder, in future, to cite Garamendi and Dames & Moore for open-ended presidential authority to create binding federal law by sole executive agreements without congressional action.

4. The internationalism of Justice Breyer’s dissent is really quite striking, as is the extent to which this case replicates the usual left-right split on the Court. (Justice Stevens concurs in the result, but his heart seems to be with the other liberals in dissent.) I think that’s unfortunate. The legal question dividing the Court in Medellin concerned the domestic effect of international law, and the allocation of authority between domestic and supranational courts. That should be a left-right issue only on the most cynical view of international law, which is that it provides a vehicle to achieve more liberal results on issues like the death penalty than the domestic political consensus would otherwise stand for. But even if we take that view, the truth is that both liberals and conservatives have things to gain and things to fear from increasing or decreasing the influence of international law and institutions in the domestic legal system. Free market conservatives may approve (and liberals disapprove) of decisions by supranational trade tribunals rejecting local environmental or labor laws, for instance. Reasonable people can differ about the extent to which we should open up the domestic legal system to international law and courts, but they should not differ on the traditional left-right grounds.

Some More Quick Thoughts on Medellin

by Mark Movsesian

[Mark Movsesian is the Frederick A. Whitney Professor of Contract Law at St. John’s University School of Law.]

Thanks to Chris for inviting me to say a few quick words about today’s very significant decision.

Hooray for Dualism: Just as he did two years ago in Sanchez-Llamas, CJ Roberts endorsed a dualist approach to the judgments of international tribunals. Dualism teaches that international and domestic regimes are entirely independent; in the absence of a domestic act of incorporation, international judgments cannot serve as rules of decision in domestic courts. Because there was no valid act of incorporation in this case – the Court believed that the Bush Memorandum did not qualify – Avena did not bind American courts.

This approach is entirely sensible. As a formal matter, neither the Optional Protocol nor the UN Charter can fairly be read to provide for direct effect for ICJ judgments. The functional arguments for dualism are as strong as well. By reserving the final decision on international judgments to domestically accountable actors, dualism promotes legitimacy and avoids unnecessary friction between national and international bodies. Moreover, dualism actually increases the likelihood that nations will create international tribunals. If international judgments automatically bound domestic courts, without any further act on the part of domestic authorities, nations would be much more wary of signing up to international regimes.

The Foreign Judgments Analogy: The Court correctly dismissed the idea that enforcing the ICJ judgment would be effectively the same as enforcing a foreign court judgment or an international commercial arbitration award. While it’s true that domestic courts routinely enforce such rulings, foreign court judgments and ICA awards typically deal with commercial disputes that do not impinge on domestic public policy. Here, by contrast, the ICJ ordered the retrial of scores of defendants who had been convicted of serious crimes and indirectly questioned American policy on the death penalty. These are hardly the sort of issues that come up in the foreign-judgments and ICA contexts.

The End of the Road: For the last decade, the American international law academy has been pressing the Court to be more receptive to ICJ judgments. Ten years ago, in Breard, the Court held that a preliminary ICJ ruling merited only “respectful consideration.” Two years ago, in Sanchez-Llamas, the Court declined to treat a final ICJ judgment as binding precedent. And now the Court has ruled that ICJ judgments are not enforceable. For better or worse (on balance, I think it’s for better), it’s clear after this morning that the campaign to change the Court’s mind has failed. New justices might see things differently, of course — though it’s significant that even Stevens voted with the majority today. For now, though, it seems time to move on to other projects.

Local Lad Makes Good: Hollis Cited in Justice Breyer’s Medellin Dissent

by Chris Borgen

Our own Duncan Hollis was cited by Justice Breyer in his Medellin dissent. Justice Breyer cites to Duncan’s essay A Comparative Approach to Treaty Law and Practice, which is from the book National Treaty Law and Practice, co-edited by Duncan, Merritt R. Blakeslee, and L. Benjamin Ederington. The first cite to Duncan’s essay appears on page 11 of the dissent. Other authors from Duncan’s book are cited as well.

Congratulations, Duncan!

Medellin v. Texas: “Modest and Fairly Careful”

by Paul Stephan

A first read through the Medellín opinions leads to tentative observations, subject to revision:

• Chief Justice Roberts’ opinion for the Court is modest and fairly careful. He does not articulate a presumption against self-enforcement, or offer a general interpretive template. The analysis of the Optional Protocol and the UN Charter is specific to those two instruments. As my prior briefs and published work indicate, I find this part of the opinion completely persuasive. I take issue with the glib assumption that a commitment to comply with an international tribunal’s decision implies an automatic assignment to the judiciary of the authority to ensure that the commitment is honored.

• Although the opinion is limited in the sense that it does not offer a general rule for inferring self-executing from treaties, its dicta states strong views (it might be too strong to say it disposes of) concerning several controversies that the academic community has taken seriously. (a) The Court understands self-execution to refer to all forms of domestic enforcement, not just to the existence of a private right of action. Its definition of self-execution in footnote 2 may clarify our discussing going forward, even if some may quarrel with the definition used. (b) Reservations, declarations and understandings that limit or foreclose self-execution of a treaty that might otherwise have domestic effect seem acceptable to the Court. The Sosa Court also hinted as much. (c) And the idea of domestic enforcement of the awards of international tribunals does not seem to cause any great concerns, at least in the abstract. This will disappoint some who have suggested that domestication of such awards might present problems under Article III or other constitutional provisions.

• As a teacher of comparative law, I was delighted to see the Court’s reliance of the evidence of other country’s enforcement of ICJ decisions. I missed seeing a discussion of the recent decision of the German Constitutional Court regarding the Vienna Convention, although it may be too recent, too complex, and too tangential to make any of the briefs. The basic point that domestic implementation of international obligations has a comparative component and that an appreciation of foreign practice enriches our understanding of our own.

• As I was serving in the Executive Branch at the time of the drafting of the U.S. amicus brief and the oral argument, I am disappointed by the last part of the Court’s opinion. I would have thought that there was more to the US’s argument that the Optional Protocol, the UN Charter, and 22 U.S.C. § 287 can be read as assigning to the President the discretion to implement ICJ decisions through changes in domestic law. This argument, to be sure, is neither clear nor ineluctable. Still, I came away feeling that the Chief Justice was a bit like the person who, having a hammer, sees everything as a nail. That is to say, the opinion works so hard to clarify and establish what it means to say that a treaty is not self-executing that it rushes past a plausible and even useful refinement, namely that the treaty makers in advance might specify a nonlegislative mechanism for deriving valid domestic law from an otherwise non-self-executing treaty. To accept this argument, one would have to see Dames & Moore , Belmont and Pink not simply as cases recognizing a limited Presidential power that inheres in Article II, but also an expression of the expectations of the legislative branches when authorizing the President to enter into dispute resolution with foreign states. One might still argue that the treaty makers or Congress have to do more than simply sign on to dispute resolution to give the Executive the authority to choose to implement an international award or not. But here the Court’s opinion struck me as less careful or persuasive than what went before.

• If I had had any doubts about the persuasiveness of the majority’s discussion of the non-self-executing issue, Justice Breyer’s dissent would have put them to rest. The Chief Justice was remarkably restrained in his deflection of the dissent’s very problematic claims and proposals.

• This will not end all Vienna Convention litigation. We still have to decide what, if anything, Section 1983 adds: The Circuits are split. So the gift to which Julian refers will keep on giving for at least a little longer.

Medellin and Congress

by Curtis Bradley

There is a way in which the Medellin decision fits very nicely with our discussion last week about congressional-executive agreements. Like Oona’s article, the decision in Medellin is very pro-Congress. The Court’s finding of non-self-execution means that it is reserving to Congress the determinations of whether and how to comply with the ICJ decision. Similarly, the Court’s presidential power holding means that the President must work with Congress if he or she wishes to convert non-self-executing international law into U.S. law. Finally, the Court’s reliance on Justice Jackson’s framework from Youngstown, particularly category 3 of that framework, envisions a significant role for Congress, even in foreign affairs. All of this is to be applauded, in my view.

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…

Medellin’s Lawyer Speaks!

by Julian Ku

My former boss and Medellin’s counsel Donald Donovan (of Debevoise & Plimpton LLP) sends out this reaction to the Medelllin decision.

Donald Francis Donovan of Debevoise & Plimpton LLP, New York, counsel to petitioner Jose Ernesto Medellín, in response to the March 25, 2008 decision of the United States Supreme Court in MEDELLIN v. TEXAS:

We are disappointed in the Supreme Court’s decision, which is a departure from the original intent of the framers of the Constitution and over 200 years of enforcement of treaties by U.S. courts. But the Court unanimously confirmed that the United States has agreed by treaty to comply with the Avena judgment, and that the United States has the means to comply with it. While the Court has held that another step is required, we are confident that the President and the Congress will take that step, to ensure that the United States complies with the commitment that the elected representatives of the American people made when they agreed by treaty to comply with ICJ judgments. Having given its word, the United States should keep its word.

Medellin: It’s About the Death Penalty

by Peggy McGuinness

As the early analysis starts to pour in on the Supreme Court’s Medellin opinion, I did a quick scan of the headlines. As I have argued here and here, the case is, at bottom, about the persistence of the death penalty in the U.S. and the efforts of close allies and neighbors of the U.S. to do something about it. Check out the early headlines, which reflect the centrality of the case to the death penalty and immigration debates:

US High Court Denies Hearing to Death Row Mexicans (Bloomberg)
Court rules against Bush, Mexican on Death Row (Reuters)
Supreme Court overrules Bush, OKs Texas execution (CNN)
Bush Overruled in Death Penalty Dispute (ABC)

Of course, there are the inevitable Texas-themed headlines:

Court doesn’t mess with Texas; denies new trial (Baltimore Sun)

As we read and watch the news coverage of the case, it will be interesting to count the uses of the word “Mexican,” “immigrant,” “murder,” and “death penalty.” And “World Court,” which sounds so much more ominous than “International Court of Justice.”

Medellin: My Early Thoughts

by Julian Ku

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:

1) Self-Execution

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.

Medellin: An Insta-Symposium

by Julian Ku

Thanks to Marty for his pointer on the decision and his instant analysis (which despite being instant, is also still quite interesting). Throughout the day today and into tomorrow, Opinio Juris will post thoughts and comments on the Medellin decision from leading commentators and scholars, in addition to (of course, our substantial “in-blog” expertise. Stay tuned!

Texas Wins Medellin

by Marty Lederman

Six to three. The decision is here. My very quick and preliminary reaction, after having read only a bit of the opinion, is that the presidential power question is not the most important aspect of the opinion. That would be, instead, the Court’s interpretation of Article 94 of the U.N. Charter as merely imposing a future obligation on the U.S. federal political branches to do something to comply with its requirement — and not to impose any independent obligation on the United States, including Texas, to actually take steps to comply with an ICJ judgment. This strikes me as an implausible interpretation, and as potentially very troubling for construction of treaty obligations going forward.

The article reads that the U.S. “undertakes to comply with with the decision of the [ICJ] in any case to which it is a party.”

The Court reads this obligation not to actually require the United States and its component parts to, uh, actually comply with an ICJ decision. Indeed, it apparently permits Texas (part of the U.S., last time I checked) to intentionally refuse to comply with such a decision.

What will this sort of treaty interpretation portend for, say, article 16 of the CAT, which provides that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment”?” Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Chief Justice reasons.