The anti-commandeering doctrine and foreign policy federalism - the missing issue in Medellin v. Texas.

• Author: Jackson, Craig
• Position: The Medellin v. Texas Symposium

1. INTRODUCTION

   The Supreme Court recently issued its opinion in the case of Medellin v. Texas, (1) a criminal case involving U.S. treaty obligations to facilitate contact between arrested foreign nationals and their nation's local consulate. (2) In that decision, the Court ruled on some crucial issues having to do with some of the most contentious subjects of constitutional law theory: separation of powers, and international law in the domestic context. (3) The result is a decision that has made it much more difficult for issues involving international obligations of the United States to be litigated in domestic courts, even where the President orders judicial resolution of those matters. What the Court failed to do was to address another crucial issue--that of federalism within the context of international obligations of the federal government and whether the federal government may mandate a state's compliance with an international obligation of the federal government. Indeed, the central event in this part of a long developing case and the genesis of Medellin is the fact that the President has sought to resolve the matter by requiring state courts to follow a ruling of the International Court of Justice (ICJ) in Case Concerning Avena and Other Mexican Nationals, (4) There the ICJ ruled that under the Vienna Convention on Consular Relations (VCCR) Article 36, (5) the United States had an obligation to see that foreigners arrested and ultimately convicted of capital crimes in the United States have the opportunity to consult with their nation's consulate. Since law enforcement officials in various states of the Union failed to do so in the cases raised by Mexico, the ICJ said that the United States should review and reconsider each of the cases of fifty-one Mexicans on various state death rows to determine if the failure to allow contact with local Mexican consulates affected their defenses. Because the implementation the ICJ decisions would have required state cooperation, the President issued a memorandum/order mandating this cooperation from state courts in states with any of the Mexican nationals covered by the ICJ's ruling. (6) Medellin v. Texas is the result of an effort of one of the Mexican nationals to implement the ICJ ruling within the U.S. court system. (7) Yet the Supreme Court's decision renders the obligation to follow the ICJ's ruling as a matter of questionable application domestically, while at the same time declaring the President's actions to implement international obligations beyond his powers. (8) The peculiar instance here is the government, through the President, sought to send the mandate to state court systems, which no doubt raised concerns from a separation of powers standpoint. (9)

   As a result of the issuance of the decision without addressing federalism, the issue of whether state officials (of any branch) may be compelled to implement federal international obligations--remains a live issue. This issue is the focus of this article. The scope of examination will be about the ability of the federal government to mandate compliance by the states at any level. Though the Supreme Court did not directly address the issue, Texas did in its brief. What Texas calls "commandeering" in its brief is essentially a mandate by the federal government directing compliance with federal law--United States treaties and the obligations (such as the requirement to review in this case) that flow from them. (10)

   According to the Court, Congress, instead of the President, possesses law making power, and can, (and may someday) seek implementation of international obligations at the state level, a scenario that, according to the Court's ruling in Medellin, should not be problematic. Yet beyond separation of powers, the issue of federalism raises the question of how far, if at all, the federal government may go in mandating implementation of international obligations at the state level.

   As the question of the scope of the Tenth Amendment's vision of federalism arose from the President's order to state courts, Texas argued for a resolution based on the anti-commandeering doctrine, a theory of recent vintage within the past thirty years that serves to prevent the federal government from "commandeering state functions" and state officials. (11) This position was a relatively minor part of its overall argument, but when one looks at the nature of international law, particularly the nature of international law in this case, it is clear that a total abstention from requiring states to take or avoid certain actions affecting U.S. international obligations would be disastrous. The kinds of national responsibilities that have evolved in international law since the Second World War involve responsibilities frequently handled at the local level in federal states. (12) As in the present case, without the ability of the federal government to intervene at the state level, it will not be possible to consistently fulfill U.S. treaty obligations in such matters. Unfortunately, this failure has been the pattern of U.S. practice for such obligations in these areas. (13)

   The controversy surrounding the issue of requiring state compliance in matters of treaty obligations begins with Supreme Court precedent relegating states to a secondary role in matters of national treaty obligations. (14) When it comes to treaties, the Tenth Amendment alone is not a barrier--states may not exert authority in areas covered by federal treaty obligations, and this conclusion is based on a nearly nine-decade-old precedent that has fared better in the federalism debate than cases involving domestic issues. (15) This barrier to state action is based in large part on the role of the national government in making foreign policy and the need of the nation to speak with one voice. (16) That same impetus forms the basis for the thesis of this paper--that the national government is empowered to require that states act or refrain from exerting authority in areas that affect international obligations of the national government. Of course, that authority is limited. No treaty may undermine civil liberties. In the context of state-federal relations, certainly no treaty may supersede constitutionally protected civil liberties. (17)

   What remains unresolved is that of commandeering (or, to state it another way, mandating state compliance with the national government's international obligations) which is really a separate, though related matter. The anti-commandeering principle prohibits the federal government from coercing the states to implement federal policy by federal legislation or official action. (18) It is at once an extension of how the federalism rules are understood and at the same time a necessary precondition to any credible system of federalism.

   However, if it is reasonable to consider the President's Order an attempt to commandeer the state courts in order to implement federal policy, the President's Order is regarded as unconstitutional under present case law whose decisions are based upon traditional Tenth Amendment analysis. Currently, there is no case law testing the same proposition within the context of the treaty power which is not limited by federalism concerns. Indeed, this article will discuss reasons why the commandeering doctrine should be interpreted along traditional Tenth Amendment lines, including the limitation of that amendment with regard to the treaty power.

   This article, as well as the other articles in this Symposium, was written before the Court's decision. As the Court did not rule on the commandeering/federalism issue in Medellin, but most surely will in the future, the remainder of this article will be published as written, with the exception of this introduction and the conclusion, and some portions inside the article which reflect the timing of the decision.

   The article begins with a summary of the events leading to the case before the Supreme Court. Part II looks at the defendant Medellin's trip through the criminal justice system from the crime to the Mexican government's involvement, and the steps to the Supreme Court twice, as well as the International Court of Justice's decision on which this issue is based. Part III reviews the key policy reasons why the United States must not be hampered by federalism concerns in pursuit of its foreign policy and treaty interests. The maxim that the government must speak with one voice in international matters is chronicled in this nation's Supreme Court case law and scholarly commentary. A companion policy comes from the debilitating limitations placed on the United States' ability to lead in the human rights area because present notions of federalism limit this country's ability to take part in treaties that address matters typically under state control in such a federal system.

   Part IV reviews case law establishing the preeminence of foreign policy and the foreign affairs power over state power in treaties and the need to implement at the state level national obligations that are immune from Tenth Amendment scrutiny. Part V discusses the anti-commandeering doctrine which it argues is implicitly limited to domestic matters because its development establishes that it is suited for U.S. domestic matters and not foreign affairs matters. That part also acknowledges that even if the Court addresses the anti-commandeering doctrine in Medellin and finds it only applicable to domestic affairs, there remains a strong chance that the Senate will decline to ratify treaties without federalist limits, and that the whole Congress in implementation legislation will decline to mandate state compliance anyway. Finally, this paper suggests a solution or compromise that may loosen Congress's apprehension, which would allow the Court to defer to Congress in matters dealing with traditional issues in diplomacy, while reviewing legislation mandating compliance in other areas using...