Don't Mess With Texas

Two days ago, SCOTUS decreed that neither the President of the United States nor the International Court of Justice (ICJ) are constitutionally permitted to mess with Texas. I’m glad the Court finally came around.

In 2004, the ICJ handed down its judgment in Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Judgment of Mar. 31), which held the U.S. violated the Vienna Convention on Consular Relations (the “Convention”) by failing to inform fifty-one Mexican nationals of their Convention right to request assistance from the Mexican consul. The Avena court, which was comprised of “President Shi; Vice-President Ranjeva; Judges Guillaume, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, [and] Tomka,” held the U.S.–by virtue of its violation of the Convention–was obligated to “‘provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican [affected] Mexican nationals.'” Medellin v. Texas, No. 06-984, slip op. at 3, 6 (2008 ) (quoting Avena, 2004 I.C.J. at 72).

In Medellin v. Texas, one of the questions Chief Roberts addressed was whether:

the [ICJ’s] Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

Id. at 8. Despite Justice Breyer‘s contention in his dissent (joined by Souter and Ginsburg, J.J.) that the majority “look[ed] for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language),” the majority “confess[ed] that we do think it rather important to look to the treaty language to see what it has to say about the issue” because “[t]hat is after all what the Senate looks to in deciding whether to approve the treaty.” Id at 18. Because not even Medellin himself nor any of his amici could “identif[y] a single nation that treats ICJ judgments as binding in domestic courts,” Chief Roberts concluded that “[n]othing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of [the ICJ] a higher status than that enjoyed by ‘many of our most fundamental constitutional protections.'” Id. at 27.

Medellin’s second argument was that a February 28, 2008 Presidential Memorandum issued by President Bush, in effect, made the Avena judgment the “law of the land.” Id. The President’s memo directed the Attorney General to instruct the “State courts [to] give effect to the [Avena] decision in accordance with the general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.” Id. at 7 (quoting President’s Memorandum, __ PUB. PAPERS __ (Feb. 28, 2005)). However, the majority disagreed, observing that:

[While t]he President has an array of political and diplomatic mean available to enforce international obligations, … unilaterally converting a non-self-executing treaty into a self-executing one is not among them.”

Id. at 30. The Court concluded by reaffirming that constitutional “authority allows the President to execute the laws, not make them.” Id. at 37.

Thx to the Medellin majority and How Appealing