02 Mar Medellin: A Response to Comments
I am gratified for some of the comments below to my very long post on Medellin. Please indulge me as I follow up with a further clarification of why I believe the ICJ judgment should not be enforced by the courts.
I agree with Andreas that enforcing the ICJ judgment would not necessarily make the ICJ a higher court. Rather, the analogy would be to that of the U.S. Supreme Court and the highest court of particular state, say New York. The U.S. Supreme Court is bound, in a sense, to follow the interpretations of the highest New York court on questions of New York law. Similarly, if the U.S. Supreme Court was applying French law on a question, it seems reasonable to say that it would have to follow the interpretations of the highest French court.
But what is going on here is a bit different. Under Andreas’ view, the U.S. has delegated the authority to interpret U.S. treaty law (which is the law of the land under Article VI) to an international court. So under Andreas’ view, the ICJ is the final interpreter of a type of law (treaty law) that the U.S. Supreme Court would otherwise have the last word on.
I think such delegations would be constitutionally suspect if made without some limitations, and the better view is to consider such delegations to grant international tribunals the power to intepret the international law consequences only of a treaty. The question of whether or how the U.S. would apply that interpretation as a matter of domestic law should remain a question within the discretion of the political branches (Congress and the President).
The political branches might decide that the treaties should be enforced by the courts absent any constraints or limitations. This remains constitutionally suspect, but much less so if Congress and the President have been forced to state, on the record, that they have granted the international court this authority. Then they are accountable for the international court’s decision, and not the international court itself. Or, as is more commonly the case, the political branches decide to reserve to themselves (usually the President) the question of how or whether to enforce the international court judgment as a matter of domestic law.
This is what the U.S. government has done with WTO and NAFTA decisions and I think this is the best way to understand what the U.S. treatymakers did here with the Vienna Convention and the ICJ Statute as well. Sometimes international lawyers like to suggest that the WTO is all powerful and complied with so we should also comply with other international tribunals, but they should remember that there is a constant give and take within the U.S. system over whether and how to comply. And the one institution that has no say whatsover is the federal courts.
So in that way, the President’s action yesterday conforms to this approach. I think it raises some new problems, e.g. the question of the President’s power over the states, but those problems, while real, are I think far less significant the problem raised by the international court’s power over the domestic U.S. court system.
Comity is everyone’s favorite fallback position. The idea here is that domestic courts should give weight to the international court’s interpretation of the treaty or whatever law. I think this is right, but the whole point of comity is that it is not mandatory on the comity-conferring court. Thus, the U.S. Supreme Court should try, whenever possible, to defer to foreign and international court interpretations. But if there are strong countervailing domestic law obstacles to providing comity, e.g. a federal statute denying jurisdiction, then comity cannot override that domestic law obstacle.
When the Medellin case goes back to Texas court, which I believe will happen, the Texas court will have to figure out what it means to be “required” to give comity to the ICJ decision. Does a federal determination of comity override a mandatory state law policy? I don’t know and this will be the next tricky question facing the lawyers for Medellin, Mexico, and the state of Texas in this case.
Julian, Thanks for your response, which I think is very helpful to clearly understand what the debate is about. But there is one point that troubles me in your argument: You argue in favour of dualism (and for the control of the executive branch over international law – government by men, not law, in that sphere), but the Constitution has decided otherwise. That is what Article VI is about. Of course, later case law has it that a treaty must be self-executing, and that makes perfect sense as far as it goes. But, according to the ICJ determination, Article 36 is self-executing, like it or not, by giving rights to individuals. The US has consented to the ICJ interpreting the treaty. Fine. The rest is the application of the judgment in the domestic legal order. One caveat only – if the interpretation of the ICJ would violate other provisions of the Constitution, it may not be enforceable. This is an other area of disagreement between us: You think that the 10th amendment may be violated by a direct application of Article 36 VCCR, I think that there is nothing in the Constitution which suggests so. If it were not for… Read more »
I would like to thank Julian and Andreas as well. Andreas, given your caveat stated above I can now see how this does not elevate the ICJ above the USSC. Might I request one clarification? You submit that Article 36 does not violate the 10th amendment. You are not contending that a hypothetical treaty that did violate the 10th amendement could not be reversed by the USSC. Do I understand this correctly?
Andreas/Allan: What would it mean for a treaty to “violate” the Tenth Amendment? That Amendment is a tautology, imposing no independent prohibitions of its own. Are you perhaps referring to the “anticommandeering” doctrine of Printz/NY v. US? (A preposterous doctrine to begin with — but let’s assume it will have some staying power outside the treaty context.) Would the notification required by Vienna violate Printz if enacted by statute? Unclear (see SOC’s concurrence in Printz). Assuming it would, why can the *President* order the states to abide by the ICJ decision, as he did on Monday pursuant to his *implied* foreign affairs powers? If the President can require such state compliance, surely a treaty can, right?
My take on the Tenth amendment is that it actually is a rather sweeping prohibition. As regards the federal level of government if it isn’t explicitly permitted it is prohibited. In what way do you consider the President’s foreign affairs powers to be implied? Article 2 Section 2 seems rather explicit. Are you contending this goes beyond that?
Well, your questions put me in a difficult position. I am not an expert on the 10th Amendment. My take is that international treaties and their interpretation (the latter is in dispute between Julian and me, if I understand him correctly) are made a federal issue by Article VI. If a treaty compels the US to do X, it is by virtue of the treaty clause a federal issue.But of course, as Julian has correctly pointed out, there must be a limit what a treaty can require. To give an absurd example, a hypothetical treaty that would force the US to abolish the states, or leave the states no room for legislating themselves about any meaningful issue, may well be unconstitutional (but would never pass the Senate anyway). My point is that one could hardly claim that Article 36 VCCR is endangering the states and their powers as such.As to the separation of powers, I must confess I am quite disturbed by the executive’s assertion of the power to determine whether an international treaty is implemented and would tend to regard it unconstitutional, but am ready to defer to the experts on the issue. When Article VI makes self-executing treaties… Read more »