Medellin Debate Moves to Congress

¶ … Medellin debate moves to Congress

Various international law authorities has bristled at the U.S. Constitution's many cases of supremacy. In Medellin v. Texas, 552 U.S. 491 (2008), the state of Texas executed Jose Ernesto Medellin. However, discussions about the competing claims of international treaty obligations, presidential power, and states' rights, were not silenced. While the U.S. Supreme Court has spoken in Medellin's case, the U.S. Senate wants to review the scope and implementation of U.S. obligations under Article 36 of the Vienna Convention on Consular Relations. These debates are shaped by the trifold dimensions of international and domestic jurisdiction; the separation of American federal judiciary, executive, and legislative branches; and authority relations between the American federal and state governments.

Among those who will be heard is the United States Attorney General Eric Holder, who will have to address all three dimensions before the Senate. The Federal government has its international reputation at stake when trying to unify national policy. As in this case, domestic issues can clash with treaty issues. The President's Constitutional mandate to "take care" (Article II §3) that the law is enforced refers to a particular mix of local, state, national, and international jurisdiction considerations. The Attorney General may face challenges when advising the President on treaties, since their enforcement is not always guaranteed. In the final judgment of Medellin v. Texas, Justice Scalia writes in the summary opinion, "The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access." In sum, Medellin could not avail himself of diplomatic counsel. This decision was not exceptional, and tells us much about how courts in the United States choose their battles.

Justice Scalia's opinion traces this distinction back to the formative Marshall Court, which viewed international treaties as either self-executing or not. The Medellin decision held that the Vienna treaty provisions are not binding. Rather, the provisions are unenforceable without Congressional intervention. The Vienna provisions are thus not "self-executing," in which case it would trump state and federal law. In order to preserve the supremacy of the U.S. Constitution over international treaty, the Supreme Court let the State of Texas execute the man.

The President of the United States has limited power to enforce international treaties or decisions of the International Court of Justice. The United States ratified the United Nations Charter in 1945, which established the International Court of Justice (ICJ). A state could consent to its jurisdiction either generally, or specifically a particular category of cases or disputes pursuant to a separate treaty. In 1969, the United States ratified the Vienna Convention on Consular Relations. Article 36 of the Vienna Convention requires that foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest. The United States withdrew from a type of "supremacy clause" within the Vienna Convention in 1985.

The Court rejected Medellin's argument that the President's 2005 Memorandum was binding on state courts. The Court accused the President of attempting to unilaterally converting a non-self-executing treaty into a self-executing one." The government had also claimed that the Memorandum was an exercise of the President's authority to resolve international claims under his executive authority. The Court recognized that this was a long-standing practice, but prior uses of executive authority to settle international disputes had occurred in narrow circumstances, and did not involve the complete setting aside of state law, as the Medellin sought.

In the Medellin v. Texas oral argument, Justice Scalia says, "Usually when we have treaties that are not self-enforcing, the judgment of whether that international law obligation shall be made domestic law is a judgment for the Congress. Congress passes a law to enforce the treaty. " the United States must abide by its international commitments if it expects other nations to do so. The U.S. tendency to ignore ICJ decisions is dangerous on many levels: It erodes our reputation as a reliable treaty partner and undermines the effectiveness of international mechanisms for the peaceful settlement of disputes. It could also have a harmful impact on the millions of U.S. citizens who travel, live or work abroad. Under the Vienna Convention, Medellin could have used the laws at the right time, but missed the opportunity. It was up to Medellin and others to raise the issue of their legal rights under Vienna. Their failure to use these rights in the theater of the first trial excluded their use later on.