Three narratives of Medellin v. Texas.

• Author: McGuinness, Margaret E.
• Position: The Medellin v. Texas Symposium

1. INTRODUCTION

   Every once in a while, a Supreme Court case comes along that holds a mirror up to the changing face of the American polity. Medellin v. Texas (1) (Medellin II) is such a case, reflecting divisive national debates over immigration, the death penalty, victims' rights, the scope of executive power, U.S. adherence to international human rights standards, the salience of international law to national security, and the appropriate role of judicial review of political decisions. Which of those issues stands out among the reflected images depends on who is peering into the mirror.

   For international law scholars, the significance of Medellin II lies in its reflection of America's relationship with the world, and in particular America's current ambivalence toward international law and the international regulation of human rights. (2) Medellin II is one in the line of criminal cases in which foreign nationals challenged the failure of law enforcement officials to meet the consular notification requirements of the Vienna Convention on Consular Relations (VCCR), (3) cases that arose because the United States retains the death penalty in the face of international legal abolition. (4) Thus, United States participation in the VCCR-a multinational treaty that codified traditional sovereign prerogatives to protect and provide services to nationals living in foreign states--provided an unexpected portal into the United States courts. This VCCR "norm portal" afforded transnational advocacy networks an opportunity to successfully challenge death penalty practices in the United States

   The facts of the case are well-known: (5) a Mexican national, Jose Medellin, was convicted in Texas state court of rape and murder and sentenced to death. Late in Medellin's appeals process, his lawyers learned that he had not been informed of his right to notify the Mexican consulate of his arrest, as required under Article 36 of the VCCR. His lawyers and the Mexican government pursued several avenues to seeking to set aside or have reconsidered his conviction and/or death sentence. Those disparate efforts took the form of a federal habeas corpus challenge, (6) diplomatic and political efforts, (7) requests for an advisory opinion of the Inter-American Court of Human Rights (IACtHR), (8) successful litigation brought by Mexico against the United States at the International Court of Justice (ICJ), (9) and, finally, a suit by the death row inmate against the State of Texas that twice reached the U.S. Supreme Court. (10)

   Along the way, the case evolved from a simple criminal appeal of a conviction and sentence handed down in a state viewed as the bulwark of capital punishment in the United States, (11) to a symbol of American exceptionalism to international regulation of the death penalty and resistance to international adjudication. (12) It also became a (presumably welcome) opportunity for the administration of George W. Bush to reassert a robust view of executive power-this time over the states and the courts. Medellin illustrates Alexis de Tocqueville's maxim that all the central political debates in the United States sooner or later resolve themselves as judicial questions. (13)

   The ICJ ruled against the United States in Avena, and held that Medellin, along with fifty other Mexican nationals on death row in the United States, was entitled to "review and reconsideration" of his conviction, notwithstanding domestic procedural rules to the contrary. The Supreme Court granted certiorari in Medellin I following the Avena decision. Following President Bush's subsequent determination that the United States would comply with the Avena decision, (14) Medellin I was dismissed on the grounds that certiorari has been improvidently granted. (15) After the Texas Court of Criminal Appeals rejected, on separation of powers and federalism grounds, the President's authority to order a Texas state court to comply with Avena and dismissed Medellin's petition for state habeas relief, the Supreme Court again granted certiorari. (16) The two questions upon which the Court granted review in Medellin II demonstrate how political questions about U.S. participation in the international human rights system came to be judicialized by the combined effect of the ICJ opinion and the President's determination to comply: does the President have constitutional and statutory foreign affairs authority to determine that the states and their courts must give effect to the ICJ's Avena decision; and are the states bound by the Constitution to give effect to the Avena judgment? (17) The case thus raised important questions of executive power, federalism, and the role of Article III courts in enforcing treaty obligations.

   The Court answered both questions in the negative, holding that the Avena decision did not create federal law that was enforceable against the states, and that the President exceeded his executive powers in attempting, through the issuance of the presidential memorandum, to enforce the decision against the states. (18)

   Yet, Medellin II represents more than the sum of its doctrinal parts. The broad socio-political narrative of Medellin II--how the case evolved from a state criminal proceeding, to part of a regional human rights case, to the subject of an interstate proceedings before the ICJ, to the focus of direct diplomatic negotiations, (19) to a rallying point for anti-death penalty activists around the world, to its most recent, (and potentially final, for Medellin himself) second incarnation as a Supreme Court case--reflects the complexities of an increasingly legalized international system. This legalization has extended--through the expansion of the international human rights system--to increased judicialization of the relationship between individuals and the state. Thus, consular protection and notification, once solely the function of the state to extend and enforce in its relationship to other states, has become subject to international and domestic judicial scrutiny. And the death penalty, once a subject of domestic law, has become regulated at the international level.

   As Andrew Guzman has argued, Medellin II is a useful illustration of how and why international law works and important evidence of how "international legal rules affect state behavior." (20) I have described elsewhere the ways in which the political processes in the VCCR death penalty cases interacted with legal processes to bring about the series of ICJ challenges and the challenges to domestic criminal convictions in the United States and how these cases have altered political behavior of the federal and state governments. (21) This essay takes a different turn to explore Medellin II through two dominant legal narratives, which I have labeled Internal/Constitutionalist and External/Internationalist, and an alternative narrative, which I label Transnational/Intersystemic. The two dominant narratives are explored through an examination of the various actors and arguments that appeared in the Supreme Court litigation, either directly or through amici briefs.

   In describing the third, alternative narrative, I attempt to demonstrate the importance of Medellin II to our understandings of international human rights norm creation, transmittal and elaboration. In particular, I am interested in understanding the role of courts and adjudication in that process. I also hope to demonstrate that, while the broader litigation story of Medellin II can, as I have argued elsewhere, (22) be viewed as a step toward integration of the international abolitionist norm in the United States, the final Supreme Court decision in Medellin, rejecting as it did the efforts of both the death row petitioner and the executive to enforce Avena, provides important lessons about the limits and pitfalls of constitutional adjudication as a means of human rights norm integration.

   Paradoxically then, and regardless of the Supreme Court's decision in the case, Medellin II represents a success for the international human rights movement in its entrepreneurial exploitation of an increasingly legalized system, but also a warning signal for the potential hazards of such legalization to the ultimate goals of human rights protection. Opportunistic litigation that exploits norm portals such as the VCCR may carry unintended costs--often in the form of political resistance to the litigation itself--to the long-term development of the international and domestic institutions that are necessary to effective international human rights enforcement.

2. THE THREE NARRATIVES OF MEDELLIN

   The Intern al/Constitutionalist Narrative (23) takes the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case. The External/Internationalist Narrative takes the tenets of public international law as providing first order principles for understanding the case and deciding the outcome. These two narratives dominate the arguments of the parties and the amici. (24) The Transnational/Intersystemic Narrative seeks to explain the cases through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur.

   The two dominant narratives-Internal/Constitutional and External/Internationalist-adopt distinct vocabularies and set out boundaries within which the case can be understood. Despite the fact that the case was decided as a matter of domestic constitutional law (and thus within the Internal/Constitutionalist Narrative), each of these narratives is revealed in the arguments the parties made before the court, in the amici briefs filed on behalf of a range of interested parties, and in the expressed attitudes of judges who have been confronted with VCCR claims in U.S. courts. (25) I do not mean to suggest that these narratives are necessarily conflicting, or that each of these narratives was predictive of the outcome of particular claims before the Court...