Treaties, execution, and originalism in Medellin v. Texas.

• Author: Geslison, Ben

The unique structure of the United States government creates tensions for the country when it deals with the international community. Most notably, the sharing of sovereignty between the federal and state governments, and between the different branches of the federal government, can create enormous tension between our international obligations and our obligation to constitutional structure. As the world continues to grow smaller, the frequency of these conflicts will surely increase.

Last Term, in Medellin v. Texas, (1) the tensions between federalism, separation of powers, and international obligations took center stage, when the Court held that the United States's constitutional structure of government trumped its international obligations. (2) Specifically, the Court held that the United Nations Charter, a treaty to which the United States is a party, did not make judgments of the International Court of Justice (ICJ) directly binding and enforceable as domestic law in a state court, and that the President lacked independent power to require states to comply with ICJ judgments. (3)

Integral to the holding was the Court's pronouncement that, when ratified, treaties are not presumed to have the status of binding domestic federal law immediately, but instead require subsequent federal legislation to become law. (4) In other words, treaties are presumed to be non-self-executing. Arguing that the Framers understood treaties to be self-executing, commentators have attacked the majority's presumption of non-self-execution as an ironic departure from originalism by the professed originalists themselves. (5) For the reasons set forth in this Comment, such criticisms are unjustified. Although the debate is far from settled, much evidence exists that the Framers understood that many treaties would require subsequent legislation to become binding domestic law. Even if, on balance, treaties were understood generally to be self-executing, the Framers would strongly have preferred a presumption of nonself-execution for treaties with highly invasive domestic implications, such as the ones at issue in Medellin.

Jose Ernesto Medellin, a Mexican national living in Texas, was indicted on September 23, 1993, for the rape and murder of sixteen-year-old Elizabeth Pena. (6) A trial established that on June 24, 1993, Medellin participated in a gang initiation, after which he and fellow gang members repeatedly and viciously raped Pena and her fourteen-year-old friend, Jennifer Ertman. (7) After the rapes, Medellin helped strangle Pena to death with one of his shoestrings. (8) In recounting his role in the attacks, Medellin, "giggling and laughing," bragged about "deflowering one of the young girls." (9) He only regretted not having a gun "so that the killing would have been quicker." (10)

A Texas jury convicted Medellin of capital murder, and he was sentenced to death. (11) After his direct appeal was denied in 1997, (12) Medellin filed for and was denied state habeas relief. (13) Medellin then filed for federal habeas relief in 2001, amending his application in 2002 to include, inter alia, as grounds for relief Texas's failure to notify the Mexican Consulate of his arrest, (14) an obligation the United States had under the Vienna Convention on Consular Relations. (15) The district court denied habeas relief, holding that Medellin had not shown prejudice arising from the treaty violation and that state default rules precluded his Vienna Convention claim. (16)

While the Fifth Circuit was considering his application for a certificate of appealability, the ICJ issued its decision in Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) (17) (Avena) and held that the United States had violated the Vienna Convention by failing to notify fifty-one Mexican nationals, including Medellin, of their rights under the Vienna Convention. (18) The ICJ held that, regardless of any state procedural default rules, the United States was obligated to provide the fifty-one Mexican nationals "review and reconsideration" of their convictions and sentences. (19) The Fifth Circuit nonetheless denied Medellin's certificate of appealability, (20) concluding that the Vienna Convention, a compact among nations, did not confer individually enforceable rights. (21)

The Supreme Court granted certiorari. (22) Before the Court heard arguments, however, President Bush issued a memorandum to the Attorney General, asserting that he was empowered to bring the United States into compliance with its treaty obligations by ordering state courts to provide the review and reconsideration that Avena purported to require. (23) Medellin subsequently filed a second state habeas petition and the Supreme Court dismissed his certiorari petition as improvidently granted, hoping that state proceedings might resolve the issue. (24) The Texas Court of Criminal Appeals dismissed the new habeas petition as an abuse of the writ, concluding that neither a judgment from an international court nor a Presidential memorandum was binding federal law that could supersede the state's limitation on filing successive habeas petitions. (25) Medellin again petitioned for certiorari and the Supreme Court again granted his petition. (26)

The Supreme Court affirmed. Writing for the Court, Chief Justice Roberts (27) concluded that "neither Avena nor the President's Memorandum constitute[d] directly enforceable federal law that pre-empt[ed] state limitations on the filing of successive habeas petitions." (28) The Court began by summarizing Medellin's argument: First, because the United States was a party to the Vienna Convention, it was obligated to perform the consular notification. Second, the Optional Protocol to the Vienna Convention bound the United States to the jurisdiction of the ICJ. Third, Article 94(1) of the United Nations Charter provides that "[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party," (29) which makes the decisions of the ICJ binding rules of decision. (30) Finally, the Supremacy Clause (31) preempts any state law contrary to the ICJ ruling--in this case, state limitations on successive habeas petitions. (32)

Conceding that the Avena decision was undisputedly an international obligation of the United States, the Court explained that not all international obligations are binding domestic law to be enforced by U.S. courts. Whether they are hinges upon whether the specific treaties giving rise to the obligations were self-executing, or, if not, whether they had subsequent implementing legislation. Relying on Supreme Court precedent dating back to the 1829 case Foster v. Neilson, (33) the Court explained the important distinction between treaties "equivalent to an act of the legislature" (34) (self-executing treaties) and those that "can only be enforced pursuant to legislation to carry them into effect" (non-self-executing treaties). (35)

Finding textual, structural, and practical problems with applying a presumption of self-execution to the Optional Protocol and the U.N. Charter, (36) the Court held that both treaties required implementing legislation to have effect as binding domestic law in U.S. courts. (37) The Court then clarified the interpretive approach it used to determine the executory status of treaties generally: In looking at the text of the treaty, courts must decide "whether a treaty's terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect." (38) Here the Court considered the terms in the U.N. Charter that "[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party" as only a general commitment to take future political action, rather than "an acknowledgement that an ICJ decision will have immediate legal effect in the courts of U.N. members." (39) The Court disclaimed, as a caricature of its holding, the dissent's characterization of the approach as requiring "talismanic words" to make a treaty self-executing, and proceeded to cite certain commercial treaties and their subsequent domestic executing statutes as evidence that Congress "is up to the task of implementing nonself-executing treaties" and "knows how to accord domestic effect to international obligations when it desires such a result." (40)

The Court next addressed whether the President's memorandum could, by itself, serve as the enacting legislation that would make the Avena decision binding domestic law. Applying the Youngstown (41) framework for reviewing executive action, the Court concluded that the President's authority to implement the non-self-executing treaties at issue was minimal. (42) The Court also considered and rejected the President's argument based on Dames & Moore v. Regan, (43) that, regardless of the treaty power, the President's independent foreign affairs authority, with the gloss of congressional acquiescence, allowed him to "settle foreign claims pursuant to an executive agreement." (44) The Court found this argument unconvincing, as there was no evidence whatsoever of longstanding congressional acquiescence in this area. In fact, the government had

not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State's police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws. (45) Justice Stevens wrote a concurrence that...