Quick Take on Medellin:
I have a short post on Medellin v. Texas over at the Slate Convictions blog.
An additional thought on the case: I predict at least a handful of student case comment titles in 2009 that will try to make use of the similarities between the defedant's name and the word "meddling." (For example, "Meddling With the Treaty Power in Medellin," etc.)
An additional thought on the case: I predict at least a handful of student case comment titles in 2009 that will try to make use of the similarities between the defedant's name and the word "meddling." (For example, "Meddling With the Treaty Power in Medellin," etc.)
Maybe we should require that whenever Congress passes a law, they pass a follow-up law stating that they really meant to pass the first one. You know, just to make sure the clearly and unambiguously intended to actually make it a law.
Your comment mirrors the criticism many people made of Stevens' decision in Hamdan: He was blatantly misreading the UCMJ to require future Congressional action before the commissions could be held. As they put it at the time, "AARRGH. This is maddening."
The commission as contemplated for Hamdan were not even remotely close to being in compliance with 10USC836-839.
I don't follow your argument. I tend to think that the critics are right that Stevens was inventing a reading of the UCMJ to make the UCMJ bar military commissions, so he could then force the Bush Administration to go to Congress. Is your view that critics did not actually make this argument, or are you saying your opinion that this argument about is incorrect?
yeah-only students can make bad puns
Stevens wasn't trying to "force the Bush Administration to go to Congress", he was forcing the President to either abide by the law already written! To wit, the UCMJ does precisely constrain the president: The law, by its very terms, constrains the authority of the President to convene military commissions whose procedures are at variance with the UCMJ.
I see that you personally agree with Justice Stevens' reading of the UCMJ. That's fine; several Justices did not, and I happen to find the dissenting Justices' reading of the UCMJ more persuasive than I do Justice Stevens' reading. My point is about the structural nature of the Hamdan and Medellin opinions, which I hope you will see is actually a different point.
I think the misunderstanding here is related to the claim in Medellin that the Executive is empowered to intervene in a state-court proceedings to enforce the treaty. I reject that claim as unnecessary since the judges in every state are already bound by the treaty. If we accept this (contrary to Foster) that the treaty is already supreme law of the land, no further Executive action is necessary.
You are correct about the structural thing though, if we accept Foster as good law then the portions of both cases that deal with executive power are quite structurally similar. In my own analysis of Medellin, I never "reached" the issue of Executive power and thus never had a chance to see that similarity before you pointed it out.
Hell of a roundabout way of agreeing with your post, I suppose.
I doubt it; nearly every world government regularly ratifies meaningless or overbroad treaties for political reasons without any real plans to execute that treaty. Now, of course, some of those governments would ignore a "self-executing" treaty as freely as they would a regular treaty; however, those constrained by the rule of law would be forced to seriously consider all of these feel-good treaties as they came along, which isn't really the point. If a national government wanted to seriously pursue the purpose of the treaty, it would probably just introduce legislation for it, not wrestle something acceptable through the international diplomatic process.
If the Senate wants to pass some meaningless trifle, they can pass it as a resolution. Treaties are for actual treaties.
Actually, the Dallas Morning News beat them to it, with a big Front Page Headline -- "Supreme Court Rules Bush Meddled in Death Penalty Case". Of course, that story also reported that the Suprme Court's holding was that States are not bound by international law, and that States are not obligated to comply with any treaties unless Congress first passes a law. UGGGGH!!!! Why is the quality of legal reporting in the mainstream press so deplorable?
But more importantly, I thought the petitioner's name was pronounced med-ay-YEEN, not med-EL-in. Am I wrong in this? The oral argument isn't yet available, help!
hello case note title
Sometimes they are.
Of course, the people who like both Hamdan and Medellin could probably meet in a phone booth. (And Justice Kennedy is already in the phone booth.)
That is the best thing I will read all week.
"A meddlin' decision neither fair-to-middlin' nor fair to Meddelin"
Hell of a roundabout way of agreeing with your post, I suppose.
I'm pleased that you were willing to reach that point in the end, though.
Actually, as I noted in the Adler thread, we have adhered to the Kellogg-Briand Pact to this day, literally at least.
But yes, when I was trying to think of a purely "aspirational" feel-good treaty, that was the one that came to my mind, too.
Chief Justice Roberts will do it for you:
The interpretive approach employed by the Court today -- resorting to the text -- is hardly novel. In two early cases involving an 1819 land-grant treaty between Spain and the United States, Chief Justice Marshall found the language of the treaty dispositive. In Foster, after distinguishing between self-executing treaties (those “equivalent to an act of the legislature”) and non-self-executing treaties (those “the legislature must execute”), Chief Justice Marshall held that the 1819 treaty was non-self-executing. 2 Pet., at 314.
So, you have John Marshall to thank.
The kicker is that, as Roberts goes on to explain, 4 years later, the Court decided the treaty was self-executing after all:
Four years later, the Supreme Court considered another claim under the same treaty, but concluded that the treaty was self-executing. See Percheman, 7 Pet., at 87. The reason was not because the treaty was sometimes self-executing and sometimes not, but because “the language of” the Spanish translation (brought to the Court’s attention for the first time) indicated the parties’ intent to ratify and confirm the land-grant “by force of the instrument itself.” Id., at 89.
This by way of demolishing Breyer's ill-advised call to move beyond the trivial preoccupation with the actual language of the treaty.
The fact that Spanish speaking folk don't know how to pronounce l's correctly (:-)) isn't going to stop any clever students or newspaper editors.
His Medellin concurrence seems to adopt the "get Congress on board" point. He notes (at p.3) that in other situations, "Congress has passed implementing legislation to ensure the enforcement of other international judgments, even when theoperative treaty provisions use far more mandatory language than “undertakes to comply.” Footnotes 1 and 3 expand on Congress's role.
So the question is, with both of them in the phone booth together, does either have an expectation of privacy under Katz?
Consider the following purely semantic rearrangement of things:
(1) All things that are currently referred to as "self-executing treaties" shall be henceforth referred to as "treaties".
(2) All things current referred to as "non-self-executing treaties" shall henceforth be referred to as "resolutions" or "joint understanding" or "statements of commitment"
(3) The Senate shall indicate clearly to which category each new document applies.
Anything objectionable about this?
I was going to make that point as well. The only difference is Stevens didn't "like" being in the phone booth and really thought the State of Texas was acting like a bunch of babies. Nevertheless, practicing judicial restraint, he got in the phone booth.
Disagree, unless the phone booth was private.
Note, this gringo cannot warranty any of this, only think it so. In Colombia, Medellin, the capital of the state of Antioquia and home to another famous cocaine cartel, is pronounced with the double "l" like a "y." And what I take to be still more authoritative on how to pronounce "Medellin," that is Vince and his buddies from Entourage, pronounced it as though there were a "y" there. Now, how the perp in question pronounces his name doesn't much matter to me, so long as he gets what he deserves, and that ain't another bite at the apple. (Yeah, I'm one of those results-oriented sorts.)
From: Stephen R. Kaplan, Northampton MA
Fax (413) 387-6027
I wish to argue before the Massachusetts Supreme Judicial Court that residential restrictions on former sex offenders are in violation of International Covenant for Civil and Political Rights Article 12, 999 U.N.T.S. 171, which guarantees to "everyone the right to choose his residence" subject to "necessary" restrictions provided by law. Can the Massachusetts court import this provision into the State analogue to the Fourteenth Amendment in the teeth of an otherwise valid municipal ordinance? If so, why? If not, why not? For the ratifying resolution, see 1992 WL 65154.
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