Reflections on Medellin:

I haven't yet had a chance to closely study the Supreme Court's opinion in Medellin v. Texas. But so far I like what I see. The Court correctly held that treaties are not "self-executing" (enforceable in US courts without additional congressional action beyond the ratification of the treaty itself) unless the text of the treaty clearly indicates that. It also correctly rejected the Bush Administration's claim that the President could order the state of Texas to comply with the International Court of Justice's decision that it was required to set aside Medellin's death penalty conviction because it had failed to give him an opportunity to meet with representatives of the Mexican consulate.

The case involved a claim by Medellin (a Mexican national sentenced to death for committing a murder in Texas) that he wasn't informed of his right to notify a representative of his country's consulate under the Vienna Convention. The International Court of Justice ruled that the Texas as in violation of the convention, and the U.S. is required to "comply with the decision of the International Court of Justice in any case to which it is a party" under Article 94(1) of the United Nations Charter. In Medellin, the Supreme Court held that the UN Charter was not a "self-enforcing" treaty and therefore that federal courts couldn't order Texas to obey Article 94 in the absence of congressional legislation requiring such compliance.

I. Limiting the Use of International Law to Override Domestic Law.

As John McGinnis and I explain in this article, most multilateral treaties and other international law materials are produced by highly undemocratic processes in which authoritarian states and unaccountable political elites from democratic states play a dominant role. On average, the legal rules they establish are likely to be inferior to those created by the domestic lawmaking processes of democratic states. Therefore, it is essential that international law not be allowed to override our domestic law unless it has first been "screened" by the same democratic legislative process that the latter goes through. Otherwise, courts will end up enforcing international legal rules that are likely to be systematically inferior to the domestic rules they displace.

The Supreme Court's decision in effect requires that treaties can't be used to override American domestic law unless the treaties have first been clearly endorsed by our domestic democratic processes in a way that evidences an intention to have them be "self-enforcing." Otherwise, courts might end up enforcing treaties that the president and Senate ratified only because they expected them to be unenforceable exercises in public relations - "cheap talk," as political scientists call it. Obviously, "cheap talk" treaties are unlikely to get as much scrutiny from the democratic process as ones that are expected to be enforceable. Moreover, there is no true democratic validation of the treaty at all if courts interpret it to be binding in ways that the legislature and executive didn't expect at the time of ratification. As the Court shows, the Article 94 of the UN Charter was not expected to be self-enforcing by Congress and the president at the time it was ratified; nor is it treated as such by most other nations.

II. Another Defeat for the Bush Administration's Claims of Unlimited Executive Power.

The Court was even more clearly correct in rejecting the Bush Administration's argument that the president could order Texas to comply with the ICJ judgment even if Article 94 isn't self-enforcing. If the treaty isn't self-enforcing and Texas has no legal obligation to comply with it, the Constitution surely doesn't give the president the power to order Texas to comply merely because he thinks that it advances U.S. foreign policy interests. Apparently, all nine justices (including the three liberal dissenters on the self-enforcement issue) rejected the administration's position on this question. Both Bush appointees (Alito and Chief Justice Roberts) rejected the administration's claims even though they were surely chosen by Bush in part because of their presumed sympathy for broad interpretations of executive power.

This part of Medellin represents yet another nail in the coffin of the Bush Administration's claims that the executive has virtually unlimited power over foreign affairs. As I explained in this post, those claims are dubious even in the context of war and emergencies, where the executive's comparative advantages of secrecy and swift decision-making are of greatest importance. They have even less justification on other issues. Ironically, the Bush Administration's sweeping claims have led to a whole series of Supreme Court decisions rebuking the executive for overreaching and constraining its discretion more than it would have been had the administration taken a more moderate position in the first place. In this case, even John Yoo signed a law professors' amicus brief arguing that president's had exceeded his constitutional authority. If John - the developer of some of the Administration's broadest claims of executive power - thinks that the executive has overreached its constitutional authority on a foreign policy issue, that's a pretty good sign that it has.

Finally, for what it's worth, I think as a matter of policy that Texas and other states should indeed allow foreign nationals arrested on criminal charges to notify representatives of their consulate. Doing so promotes fairness to foreign criminal defendants and may make it easier for them to get adequate legal representation. It could be particularly valuable if the foreign nationals in question are unfamiliar with the US legal system, don't speak English, or both. Certainly, most Americans would want to be able to contact the US consulate if arrested while traveling abroad. But not every good policy is or should be imposed by federal law. The right approach here is for the states to reform their own laws. If necessary, foreign nations could pressure Texas to change its practices by denying Texans arrested in their jurisdiction the right to contact American consular representatives.