Making Texas Pay for Its Sins, or Why Ernesto Medellin May Live Out His Days in Prison

I’ll venture a cautious prediction beyond the four corners of the opinion: Medellin will not be executed. I don’t think it will result from anything that happens in Washington; Congress just won’t have adequate incentive to help out a brutal murderer in the name of international legal obligation. The Administration might try to push for implementing legislation sufficient to satisfy the Medellin majority. It’s possible that the Government of Mexico itself will make some approaches on the Hill as well as at Foggy Bottom (where diplomatic hands have now been more tightly bound), thus further bringing Congress directly into the arena of international relations on yet another front. But I just don’t see Congress picking up that ball.

The more intriguing possibility is that Mexico starts waving a big stick around Austin with talk of what I’ve called targeted retaliation. If domestic Mexican constituencies (and for that matter, Mexican citizens resident in the US, who can now vote in Mexican presidential elections) are mobilized, the GOM will have to take some action beyond useless diplomatic demarches (nor does the Security Council route look very promising, even from a PR perspective). So why not start talking boycott? I doubt it could be undertaken as an official move, consistent with the international trade regime, but I don’t think it’s at all implausible that Mexican elites (governmental and non) could start quietly talking about redirected trade and investments. Texas had more than $40 billion in annual exports to Mexico as of 2003. That’s serious money and a lot of jobs. (Why buy a Dell when you can go with Gateway?) Even if a very small percentage made its way to California or other states instead, that would have to make Medellin’s execution look a little less like a top priority. And of course we have the Torres case in Oklahoma by way of precedent (which, in Janet Levit’s account, included “implicit threats of economic retaliation”).

So we might be at the end of the federal judicial road, as Mark Movsesian suggests, but that will hardly be the end of the story here. By further gumming up the treaty enforcement process at the national level, the Court pushes decisionmaking downstairs. But that isn’t necessarily a bad place to advance the rule of international law.