Plaut v. Spendthrift Farm would have also been an obstacle in the way of enforcing any re-look at Medellin's case based on Conrgessional legislation.

Arlen Specter asked Roberts during his confirmation hearings about the fifth courtesy vote in death cases, and because the question was worder in terms of accepting certiorari, Roberts was able to duck that one by pledging to grant a courtesy vote in those cases. But I think that as a policy matter the court ought to grant to grant a courtesy fifth vote in all cases where four justices are considering granting certiorari, but want more time to consider the matter. There's no reason that they should be forced to pull the trigger right away or lose the chance to take up a potentially cert-worthy case due to a refusal of five to let the other four meaningfully excercise their right after due consideration.

I think it was this practice that was reported to Senator Specter, and had he not botched the issue, Roberts would have been forced to defend on the stand this current practice of not granting a courtesy vote when there aren't four justices willing to bite the bullet right away.

FWIW, I think the old practice on the Supreme Court was to grant the coutesy vote in these cases as well, up until the time the Justice White, the last judge willing to go along, left the court. From then on no courtesy vote was provided in cases like these.

Orin-
I'm not especially Supreme Court geeky, but, as a Texan, I was pleased and surprised that no one blinked.
I am interested in the mechanics of the Court's decision. When did the members of the Supreme Court start working on "yesterday's opinions denying the application for a stay of execution in the Medellin case?" Did they anticipate that the top Texas court would not intervene and that Governor Perry would not intervene and start work weeks ago or did they BEGIN yesterday when some one handed them a petition?

Marty - according to the docket, the application for a stay was filed on August 1st, Texas' response and Medellin's reply thereto were filed August 4th, and the circuit justice referred the who shebang to the court sometime yesterday. As to how long the dissenters have been working on their opinions, we can only speculate. If I had to guess, probably since the day Medellin was handed down.

I find it fascinating that four justices would consider granting a stay based on the fact that Congress could, at some future time, change the law.

I’m curious whether there has ever been a Supreme Court opinion which was based on the fact that Congress could change the law at some point in the future (besides the ones where they say, “Congress is free to change the law if they disagree with our decision”).

Setting aside criticism of the Supreme Court, what harm would it have done Texas to stay this until the issue had been resolved? For reasons stated above, it's very likely that a violation of the Vienna Convention was harmless error in this case. But taking great pains with propriety in this case would have sent a signal abroad that American citizens detained should be afforded the same respect in terms of this treaty obligation; Texas's decision sent the opposite signal. You know that you are really screwing something up when the Bush Administration lectures you on international law and foreign relations.

Orin,

It would look really bad for justices who need more time to consider a cert petition to take it up and dig it later, rather than require this strange looking defensive move, the better course of action would be a courtesy fifth vote when four justices want a stay for more consideration.

I don't quite get why you say that there should be more than one courtesy vote on my logic. The purpose of the rule of is to give the ability to four justices who want to do so to grant certiorari and hear the case, and a courtesy fifth vote would allow four justices who haven't already decided against granting certiorari the ability to consider it carefully without forcing them to choose between effectively denying cert by not voting for it right away and "accepting" cert knowing full well that the case will likely be DIGed, which just looks ugly. But once six justices have already decided against granting certiorari, there is no reason for any courtesy votes, since certiorari can already be denied right then and there.

"So you’re worried that American citizens who enter illegally into other countries since the time they’re three years old, who are virtually indistinguishable from actual citizens of those countries and who decide to rape and murder a couple of girls might not be reminded by the authorities of those countries that they have right to contact their counsel?"

No, it's more general than that. It's that American citizens who enter another country (but let's assume legally) and who are accused of a crime (but let's assume falsely) will be denied their right under the Vienna Convention to contact their *consul* (different right than the right to legal counsel), because any country that is a party to the Convention can laugh it off and truthfully say that the U.S. doesn't honor its obligations under it, so why should we?

Thales:

because any country that is a party to the Convention can laugh it off and truthfully say that the U.S. doesn't honor its obligations under it

We're not exactly talking about the obligations of the United States under the Convention, though. The United States - the "receiving state" in the convention's argot - wasn't holding Medellin; it wasn't officers of the United States who detained Medellin and "failed" to advise him of his Vienna convention rights. It was Texas that did those things. There's a very basic question being ignored here: What authority did the United States have to make this treaty in the first place? "A treaty is in its nature a contract between two nations ... [and] is carried into execution by the sovereign power of the respective parties to the instrument." Foster v. Neilson, 27 U.S. 253, 314 (1829). If a treaty is a promise given to a foreign country by the United States that the United States will do something, how can the United States promise to do something that it in fact has no power to accomplish? Without a treaty, does Congress have authority to enact a statute mandating that Texas give a foreign national charged with a crime consular access? And if not, why (and whence) would Congress gain the authority to do so? That's not how I read Reid v. Covert.

I think under the treaty, there's no distinction between the nation and sub-units of the nation

Well, that's cute, but our Constitution does make a distinction between the nation and it's sub-units (if the states can even be so termed).

Congress does have that authority under the Supremacy Clause and the President's power to make treaties (once they have been ratified), unless you are suggesting that an implementing statute would violate the Constitution in some way. In what way would it?

So your theory is that Reid is wrong - and Lopez, too, for that matter? Even though the federal government is a government of limited, enumerated powers, Congress can enact a statute that it would otherwise lack authority to pass, a statute that would otherwise be unconstitutional, if they first persuade another nation to promise to do the same thing and pass a treaty? Really? How about the Brady act struck down in the Printz case; Congress can impose that kind of liability on CLEOs if the United States ratifies a treaty promising to do this that and the other and Congress acts pursuant to the treaty and the sweeping clause? How about the take title provision from New York v. United States - valid if the President's signed a treaty first? Really?

The distinction you make between an express Constitutional provision and implicit provisions isn't really satisfying either. I suppose we can't bypass the first amendment by making a treaty, under your analysis, but what about all those rights applied against states on the theory that they're "implicit in the concept of ordered liberty" and thus implicit in the due process clause? All those are on the chopping block under your analysis, for better or worse. The President signs a treaty with France agreeing to ban abortion forever; the Senate ratifies it; the Congress thence gains the authority to by statute ban abortion, coast-to-coast, in any state, period? Really?

You're advancing a novel new power of the President and the Senate to expand Congressional power on a scale hitherto thought to require amendment (or at least five tame votes on the Supreme Court) by inking a treaty, but I have a "pretty radical understanding of federalism"? ;)

Dilan:

the majority in the original Medellin opinion seemed to assume that Congress COULD enforce the ICJ judgment

I think that overreads Medellin. The court spoke several times in very general terms such as "Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes," and "[t]he responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress"; it suggested, not much less generally, that there are "70-odd treaties under which the United States has agreed to submit disputes to the ICJ ... [a]nd Congress could elect to give them wholesale effect ... through implementing legislation, as it regularly." This seems to me to stand for the abstract proposition that ceteris paribus, Congress can give treaties domestic force (and indeed must do so for them to be enforceable in American courts) rather than any kind of blessing of Congressional power to implement this treaty.

this includes free trade and defense treaties as well as human rights treaties

Doesn't Art. I § 10 adequately preempt the concern about Congress' power to enforce free trade agreements?

Dilan,
Perhaps I'm underreading Medellin, but a few thoughts in repy:

If Congress doesn't have an enforcement power, it's very hard to argue that the President can't enforce it either, because that means that nobody can enforce it.

It would mean that neither Congress nor the President can enforce the treaty as far as it applies to state prisoners. It would mean that the protocol is binding on the United States in the sense of the federal government (nothing in my analysis prevents Congress enacting a statute that implements the convention vis-a-vis federal detainees), but would be voluntary at most for individual states. Is that an absurd result? When Congress enacts a statute beyond its authority to do so, that statute can't be enforced; why would it be absurd that when the United States adopts a treaty that makes promises it has no authority to keep, that treaty can't be enforced?

Fundamentally, the problem is that the US can't act as 51 sovereigns with respect to complying with treaty obligations.

I'm minded to agree, but - and more importantly - nor can the United States act beyond its delegated authority. True, "[t]he treaty-making power of the United States is not limited by any express provision of the Constitution," Asakura v. City of Seattle, 265 U.S. 332, 341 (1924), but nor is the Bill of Rights limited in its application to the federal government by any express provision of the Constitution. Cf. Barron v. Baltimore, 32 U.S. 243 (1833) (the Bill of Rights is limited in its application to the federal government). Nevertheless, even by that reasoning, the treaty power only "extend[s] to all proper subjects of negotiation between our government and other nations," Asakura, supra (emphasis added). If "[t]he Constitution creates a Federal Government of enumerated powers" that are "'few and defined'" in contrast to those "'numerous and indefinite'" powers "which ... remain in the State governments'" United States v. Lopez, 514 U.S. 549, 552 (1995) (quoting The Federalist, No. 45), and if "all is retained [by the states] which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 (1941), doesn't it follow that only those subjects to which federal control has been ceded by the states are "proper subjects of negotiation between our [federal] government and other nations." Although states conceded considerable limits on their criminal processes in ratifying the Fourteenth Amendment, the Fourteenth Amendment does not authorize Congress to legislate the sort of rules of procedure at issue here, and I don't know of any other grant of power that would allow such a statute without a treaty, so I don't see how there can be such a statute with a treaty unless federal jurisdiction quoad the states can be expanded by a treaty, a result that I think is manifestly and obviously perverse.

I can't say it better than Justice Black did in Reid: "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. 354 U.S., at 16. It seems to me that the only analytical leap I'm making from that language is the assumption that the structural constitution should be taken at least as seriously as the "rights" constitution.

The real question is whether the Reid v. Covert doctrine can or should extend to a claim that the treaty is beyond Congress' enumerated powers. I suspect that the answer is going to be "no", but the courts won't answer it unless they are forced to.

I agree that the courts won't want to do so, but in my view, the courts should be particularly solicitous of federalism concerns in a world where the states lack any means to defend themselves against encroaching legislation in Congress.

As for free trade agreements, I don't think Article I section 10 solves the problem. These agreements can prohibit, for instance, subsidies on local industries, which are clearly within the power of the states.

I had in mind that Congressional approval is required for a state to "lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws," laws that are "subject to the revision and control of the Congress."

"So your theory is that Reid is wrong - and Lopez, too, for that matter? Even though the federal government is a government of limited, enumerated powers, Congress can enact a statute that it would otherwise lack authority to pass, a statute that would otherwise be unconstitutional, if they first persuade another nation to promise to do the same thing and pass a treaty? Really? How about the Brady act struck down in the Printz case; Congress can impose that kind of liability on CLEOs if the United States ratifies a treaty promising to do this that and the other and Congress acts pursuant to the treaty and the sweeping clause? How about the take title provision from New York v. United States - valid if the President's signed a treaty first? Really?

The distinction you make between an express Constitutional provision and implicit provisions isn't really satisfying either. I suppose we can't bypass the first amendment by making a treaty, under your analysis, but what about all those rights applied against states on the theory that they're "implicit in the concept of ordered liberty" and thus implicit in the due process clause? All those are on the chopping block under your analysis, for better or worse. The President signs a treaty with France agreeing to ban abortion forever; the Senate ratifies it; the Congress thence gains the authority to by statute ban abortion, coast-to-coast, in any state, period? Really?"

Simon, I think you are overreading what I said. I don't think Lopez was wrong, but more to the point, I don't think Reid v. Covert is wrong *or* inconsistent with Missouri v. Holland (and so the Reid opinion claims). Your abortion rights hypothetical is silly--the hierarchy of *federal* controlling law is constitution-statute-treaty, and you can't have a treaty that allows the U.S to violate the 14th Amendment (i.e., the holding of Reid). On the other hand, I think the ability to require *state* officers to comply with the Vienna Convention (i.e. refrain from violating a federal law, which is the supreme law of the land under Article VI) is no more controversial than requiring them to comply with the Fourth Amendment (via the 14th). Printz was different in that the portion of the Brady Act struck down required the state officers to actively take part in constructing a federal enforcement scheme (the background checks database), thus "dragooning" them in Scalia's term in violation of dual sovereignty. By contrast, what 10th amendment power reserved to the states do you think the Vienna Convention violates? Why do you not think the Vienna Convention is within Congress's enumerated powers? Why do you think it is not binding on state officers?

Actually, Texas admitted that it violated the Convention.

The full text of Article 36, sec. 1(b) of the Convention is:

"if he so requests, the competent authorities of the receiving State shall, without delay, inform the
consular post of the sending State if, within its consular district, a national of that State is arrested or
committed to prison or to custody pending trial or is detained in any other manner. Any communication
addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded
by the said authorities without delay. The said authorities shall inform the person concerned without
delay of his rights under this subparagraph;"

It is the latter sentence which Texas violated.

"You ask "what 10th amendment power reserved to the states do you think the Vienna Convention violates? Why do you not think the Vienna Convention is within Congress's enumerated powers?" I think that gets it the wrong way around. Both questions can be answered by asking whether Congress could directly mandate the states to do what the United States promised in the treaty if there was no treaty. Can the federal Congress directly regulate state criminal procedure? Perhaps the answer is simply to surrender to indirect regulation: Congress can fulfill the United States' commitments by resorting to the kind of good old-fashioned extortion blessed in cases like South Dakota v. Dole and FAIR. "Your money or your rights!" as Dick Turpin never said."

Where the criminal procedure involved impacts foreign relations, as it does when a state detains a foreign national, I would think yes--who else has the power to govern criminal procedure with regard to foreign suspects? Under the necessary and proper clause, Congress is passing a statute (hypothetically--obviously in the Medellin case there is no statute implementing the Vienna Convention) to give effect to the President's power to make treaties (as ratified by the Senate). Foreign affairs may not be exclusively the province of the national government, but few would argue that in a conflict, the national government prevails over the states. Virtually no one, the Lopez and Morrison majorities included, would argue that foreign relations is a traditional area of state concern. Do you think that states can act in defiance of federal immigration law? I think you might have a serious federalism challenge to such a law if it in fact required the state in question to do something on the level of the Brady law in Printz--but here it's simply compliance with a notice requirement--no more burdensome (in fact, considerably less) than Miranda. Note that to my knowledge, Texas has not raised the argument that it is not bound by the Convention--why do you think that is?

Both questions can be answered by asking whether Congress could directly mandate the states to do what the United States promised in the treaty if there was no treaty. Can the federal Congress directly regulate state criminal procedure?

I don't think one can call this an issue of "criminal procedure." It affects neither the powers of the states nor the mechanics of a criminal prosecution. All it does is require states to tell foreigners that they have the right to talk to their embassy.

Can Congress do this? I think so, yes. Because it's an issue of foreign relations, which is within the federal sphere.

Leland,

I think Thales' argument is that Texas violated the last sentence, i.e., "The said authorities shall inform the person concerned without delay of his rights under this subparagraph." And I don't think there has to be a request for the suspect to be informed of his rights. Just as it's OK if the suspect not to have counsel during the interrogation if he did not request one, but he still has to be informed of his Miranda rights before interrogation.

Perhaps you can provide details on how Texas violated that sentence, and conceded that they did, rather than just making the assertion.

You're not seriously arguing that this is in dispute, are you? Multiple courts agree on this point.