“Medellin vs. Texas” Bush lost big time.

Tevtexas_12_m "The majority also flatly rejected the Bush Administration’s claim that it could make the ICJ decision binding by presidential memorandum. "The president," the majority wrote, "has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them." In short, congressional action was an absolute prerequisite to making the ICJ decision binding. And again, there had been no congressional action taken here. "  Findlaw


The chief justice wrote with regard to this case that "The president’s duty is to execute the law, not to make it."

Now, it may be that the specific outcome of this Supreme Court ruling is of interest only to this fellow, Medellin, but the larger point is important.

The Left in this country has been endless in its anticipation of slavish obedience to the president by the "Roberts Court."  It did not happen here.  Bush, who’s behavior as governor of Texas demonstrated that he is not opposed to capital punishment, wanted Texas to comply with this ICJ decision.


Simple.  He wants the US to be the "centerpiece" in a worldwide compassionately conservative imperium.  For that to work the US must accept its part in the design.  Awkwardly, the American federal system still exists and Texas chose to exercise its sovereignty to reject this decision by the ICJ and the executive branch of the US government.

Roberts, Alito, Kennedy, Scalia, Thomas and Stephens all sided with Texas’s rights as a sovereign in this case.

What happened to the slavish obedience that was expected?  pl


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38 Responses to “Medellin vs. Texas” Bush lost big time.

  1. EZSmirkzz says:

    Being from the Houston TV area I’m a little prejudiced on this for the victims and their families.
    As to your point about the left, “At the risk of oversimplification, many of the conservative justices are devoted to both states rights and presidential power – but in Medellin, the two concepts were at war with one another.”, this lefty tends to support states rights and federalism.

  2. Mikey says:

    What? Bush didn’t get one of his little phony play-toys to strut with as Rome burns? This horrid ruling looks more like slavish obedience to death, ignorance and that special unilateral arrogance that makes Texas such a favorite of the Rabid Right and the United States a pariah around the world. This Court supports States Rights when it’s convenient to their authoritarian ideology.

  3. sixpacksongs says:

    I too live in Houston, very close to where the crime occured and remember it well.
    I’ve forgetten most of my poli-sci, and know even less about const. law, so if I’m an idiot then please remember I live in the state that gave you Bush. It’s probably something in the water….
    I think that the court is more concerned with our supremacy vis-a-vis international law and agreements. I have always been puzzled by our courts’ general reluctance to recognize any authority under international auspices that might impinge on the USA’s total degrees of freedom.
    I do not understand this decision. What is “non-self-executing” about the VCCR? To quote that ultrareliable source, Wikipeida:
    “Article 36 of the VCCR 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 notice can be as simple as a fax, giving the person’s name, the place of arrest, and, if possible, something about the reason for the arrest or detention. The police must fax that notice to the embassy or consulate, which can then check up on the person.”
    How does that require enabling legislation? And part of federalism means that states are bound by Article II treaties.
    Justice Stephens agreed that the president did not have the authority to order the states but that Texas should probably have undertaken the hearing. I would have been happier with a result that did not disparage the VCCR but still found against the Pres. I suppose the Executive could have taken the states to court to enforce the review per the World Court and that would have been OK, but I don’t have any confidence that the judiciary would have upheld the VCCR or the World Court.
    Souter, the “libertarian”, has it right again, for me.

  4. Grumpy says:

    Col., this reminds me of an old riddle from the Revolutionary War. I know the riddle because it was passed down through the generations. It was actually used as a password to some of the meetings of those considered NOT to be “favorites of the King.” I still live in the same town as my ancestors. The riddle went like this, “Can you tell me? Which is it? The king is law or is it the LAW is KING?” There was never intended to be any circumventions of the law. This especially true of our “leaders” in the time of war.

  5. Have not read the opinion so can’t comment in depth but it is interesting that only experts in treaty law at the State Dept. and the Treaty Section of Library of Congress have some comprehension of how much Americans are affected by Treaty Law. I actually would argue that no one on the Supremes is truly expert in this arcane subject. What is interesting is that by jumping all over the map on Federalism issues, the Supremes have total eviscerated any ability of non-technical persons to understand what the real issues are. Just for the record, the U.S. Constitution does recognize the existence of the STATES and that the federal government is a limited powers governmental entity. As to the Executive Order, Justice Jackson I believe in the U.S. steel case in the early 50’s when Truman tried to take over the mills knocked down the President’s inherent powers and basically stated that if not linked to a Statute the cupboard is bare. Be interesting to know if that opinion is cited by the Supremes. If someone knows please post.

  6. Cujo359 says:

    True, Alito and Roberts didn’t side with the President – for once. So they didn’t live up to my expectations. However, if you’d asked me “Do you think they would let some fancy furrin International Court O’ Justice tell the U.S. of A. what to do in the matter of prosecuting some Mexicans, I’d have said “no”.
    So while one of my prejudices wasn’t upheld, another was.
    Plus, the President was stepping on the Court’s turf, to some extent. I doubt even Alito, for all his “humility”, would have liked that.

  7. TomB says:

    In response to Mr. Cumming’s question and after speed reading a bit through the decision yes indeed the Steel Mill case and Justice Jackson’s very *very* highly regarded opinion in same was cited numerous times by Chief Justice Roberts in his decision. In fact it might even be said that Justice Jackson’s renowned reasoning in the Steel Mill case formed the very basis for the whole of the second half of Roberts’ opinion for the Court.
    So as to be clear, the first half was taken up with the issue of whether the Vienna Treaty and the Int’l Court of Justice’s ruling as regards same compelled Texas to do certain things under the Treaty. Robert’s answer to same was no; the Cong. intention in the ratification of the Treaty was found to be that it would not be self-executing, and thus further Congressional legislation was intended before it would have any force over the states and since no such legislation existed….
    The second question for Roberts then was whether Bush’s subsequent Executive Order on its own could force the hand of the Texas courts and it was here that Roberts really relied on Justice Jackson’s Steel Mill opinion. (To the effect that the situation here was the third of three kinds noted by Jackson, to wit, where a Prez. acts *contrary* to Congress.) Because the Court found the Congressionally ratified treaty was clearly intended not to be self-executing and therefore needed further Cong. action, and because Cong. had not acted, then Bush was seen as acting contrary to same and indeed was at his lowest ebb in terms of his powers. And, Roberts found, those powers alone did not then allow him to go make a non-self-executing treaty into a self-executing one.
    So yes indeedy, Roberts not only cited the Steel Mill case he very much relied on it. (And Mr. Cummings would seem to have missed a beat by not going into law with his fine sense of precedent.)
    In response to the other comments generally yes indeedy too treaty law and indeed all the law as regards foreign affairs and relations generally can seem arcane as hell. Almost unbelievable in fact in terms of what issues don’t even have answers yet. (Many times because the SCOTUS purposely avoids giving such answers, which might be smart.)
    Otherwise much of the reason is the amazing spareness of the Const. as regards same. Read Art. II of the Const. sometime and see just how spare it is as regards the Prez. and his foreign affairs powers. “The executive power” is invested in him, he is named the Commander in Chief, and he can make treaties so long as 2/3 of the Senate agrees. Otherwise … pretty silent.
    Pretty much the same with Congress’ powers in Art. I.
    As the dean of American foreign-policy law Louis Henkin has said, “it seems incredible that these few meager grants support the wide-flung webwork of foreign activity of the most powerful nation on earth,” and that “where foreign relations are concerned the Constitution seems a strange, laconic document.”

  8. David W says:

    A wee bit of a strawman setup here–if they aren’t ‘slavish’ is that some kind of victory for ‘The Left?’ In other words, I think that they don’t have to deliver every case to ‘The Right,’ just the big ones, like say, Bush vs. Gore.
    In the spirit of Col. Lang’s recent admonishment to consider arguments independently of who made them, I’ll allow Alan Dershowitz to speak for me here:
    the decision itself was criticized by Harvard University law professor Alan Dershowitz, asserting in Supreme Injustice: How the High Court Hijacked Election 2000 that “the decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.” Some critics argue the majority themselves seemed to seek refuge from their own logic[35] in the following sentence in the majority opinion:
    source: Wikipedia
    Frankly, from where I sit it’s Scalia who is doing the dark sider work, viz. his recent comments about waterboarding. Who’s his duck hunting buddy again?
    Sorry, Col., I don’t buy your overly broad premise here–in fact, I think that one of the reasons the Bush Putsch was enacted in 2000 was because the Right saw the opportunity to pack the court. You may not see it in all decisions, but like Vegas, the goal is to tilt the odds.

  9. condfusedponderer says:

    I welcome the decision on the grounds that it draws a red line as far as presidential power is concerned, and to
    As far as the case itself is concerned, I find the situation disgusting.

    The background for the Medellin case is a 2004 decision by the International Court of Justice (ICJ) involving 51 Mexican nationals – among them, Jose Ernesto Medellin. Each had been convicted in state court in the United States.
    The Vienna Convention requires that foreign nationals subject to arrest in the United States must be notified that they have a right to consult with officials from their home country.

    It is a little sobering to see that the US can get away with not properly implementing international law nationally, on grounds of state sovereignty. In my view the problem does not lie primarily in basically implementing the verdict of the ICJ per presidential decree, but about US states not properly implementing the provisions of the Vienna Convention in all the years the treaty is around – it was signed in 1963 and that the right for consular support is novelty. And it’s not as if they didn’t have the time. And quite obviously the Texan legal system doesn’t do that.
    Americans should view this through the prism of reciprocity. They would like to have consular support too, if they face the authorities of other countries. At least that’s how I always interpret ‘Hey, I’m an American citizen!‘. Na und?

  10. kim says:

    bush has screwed up every assigned or undertaken task so far, including securing the present and long range viability of the republican party.
    should we be surprised if his best efforts at building an anti-constitutional supreme court may actually have delivered an honorable team?
    i’m just askin’. way too early for simple minds like mine to have a clue. but i’ll keep the tv turned off, and keep eagerly readin’ here to see what the smart folk say.

  11. TomB says:

    As regards “confusedponderer’s” comments:
    You might be wrongly blaming Texas for “not properly implementing the verdict of the ICJ.” (And, by implication, the treaty itself.)
    Again, what the SCOTUS found was that *Congress* had failed to pass the executing legislation that it knew it had to when it ratified the treaty. (And anyway I dunno about the states having the resources/ability to monitor treaties and then, very possibly in inconsistent ways, trying to “implement” them and etc., etc.)
    Moreover it seems that Texas’ argument was that okay, we may well have complied with the treaty anyway and let Medellin see a consular officer but he never asked and never raised the treaty before he was convicted. It was only on appeal he raised the issue, and as is very common the rules about raising things brand new after a trial is held are very narrow and strict, and Texas applied same and said to Medellin that this don’t give you another bite at the whole apple. (And of course there might also have been the worry that any foreign national charged with a crime in the future would intentionally not ask to speak to their consular people specifically so as to preserve their right to bite again at any conviction apple that came their way by appealing and claiming a treaty violation.)
    Not saying I agree or disagree with the Supreme Court’s decision, just trying to pass on what I picked up scanning same.

  12. jonst says:

    “What happened to the slavish obedience that was expected?”. A few theories. First the cased touched on the ‘third rail’ for the justices you single out. i.e. impact of international law, customs, on US jurisprudence. Scalia, in particular, is hostile (some say beyond rational bounds)on this issue.
    Second theory….exception that proves the rule.
    Third theory….the truly cynical theory, the ‘slaves’ are shopping for new master/s to serve as the clock winds down on Bushism.

  13. Just a foot note to my earlier comment and thanks to TomB for his. I don’t have Lexis so unable to read opinion still. But relying on his extensive comment this might be food for thought? First, if truly the Robert’s Court has found that “failure to implement by legislation” where a treaty by its terms is not “self-executing” and here of course don’t know about the one involved but assume so, then the Court may have voided many Treaties previously considered “Self-executing” even those without specific language. If so this is the most direct SCOTUS adventure into foreign affairs ever. Radical indeed. Perhaps the Executive Branch is too obtuse to realize how really radical this move by the Robert’s court is in the history of separation of powers. But I may be overreaching.
    Then, as to the second point, Constitutional scholars, both lawyers and political scientists, have long argued that if Justice Jackson’s opinion (a former Truman AG I believe) really was the bottom line position on Presidential implied powers then Congress and the Courts have suddenly been given vast new leverage over the Executive Branch. Again overreaching. I do know, however, that in considering whether to appeal a decision by the DC Circuit Court of Appeals (a Federal Court)to the Supreme Court (after a rehearing by the Circuit was denied) wherein that court knocked down an Executive Order of President Clinton ordering federal departments and agencies not to contract with employers that hired strike replacement workers, because it had no basis in “Statute” and the then SG (the Solicitor General of the US–the third ranking appointee in DOJ) concluded it was too risky to take up because of the Steel seizure case. So again, a really radical not conservative decision at all by the Robert’s court. Certainly since Lincoln President’s have relied on implied powers, often in wartime and of course most often in foreign policy and other armed conflicts short of war. Note however that President Jefferson bought a sizable chunk of the present US using his implied powers, but again maybe really just foreign policy. By the way the book “Dangerous Nation” by Robert Kagan of Carnegie Endowment argues the entire expansion of the US geographically was not “internal development” but foreign policy. But could their be overlap sometime in the future between how the Court views implied powers even in Wartime or other foreign affairs? An example, Fidel dies, Cuba’s citizens decide they would like to be part of the US and a President says Yes and Congress says NO. Or the Court says NO. Or the reverse? This could be really interesting development to watch as it plays out over time, including future administrations. Again I don’t pretend to be a scholar of the Supremes.

  14. Sidney O. Smith III says:

    In my view, the recent Medellin opinion ranks as one of the more important US Supreme Court decisions in recent American history. Here’s why: if the USSC had sided with the US President in this case, then it’s game over…we have a king.
    Just look at the questions on cert. as stated by the Court:
    “First, is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States? Second, does the President’s Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules?”
    Imagine if the court had ruled in favor of the executive branch, especially on the second question. Then what?
    So the Medellin opinion, when plugged into broader currents, does confirm the notion that, historically, the federal judiciary is our last line of defense against the creation of an imperial form of government. And it does confirm a historical trend: that cases regarding the scope of presidential authority, increasingly, are rising out legal questions focusing on the constitutionality of foreign, not domestic, policies.
    Is our federal judiciary ready? Can they create a judicial firewall against the rise of an imperial presidency?
    The federal courts are sending mixed signals at this point — not necessarily a good sign. But anytime a nation heads into a crisis, the constitutional issues spill into the courts. You can count on it. And if the courts cannot decide the questions satisfactorily, odds increase that some type of political violence will explode on the scene. (Harvard law professor Roberto Unger documented this exact outcome when examining the judicial system of the Weimar Republic.)
    Speaking of the end of the Weimar Republic, neoconservatives will sing high praises of this opinion but don’t be fooled. They oppose the United Nations and the International Court of Justice for other reasons. This is simply one of those judicial decisions where various interests intersect. As David Addington’s work on the theory of a unitary executive so amply prove, neoconservatives want a king but not one beholden to the UN and the ICJ. They want a king who has pledged fealty to their “esoteric” dictates. Big difference.
    Look at it this way: if the issue was the constitutionality of an executive order that allowed the warrantless wiretapping of Medellin’s phone calls, the neoconservative pundits would have sided with the president. In all likelihood, Justice Scalia would have sided with the neoconservative desire as well. And increasingly the conservative justices are reflecting the neoconservative wish when determining the constitutionality of State imposed torture, and they do so based upon a rationale that sanctions, at some level, the unitary executive theory.
    This leads to Edward Lazarus’ vitally important observation in his article at Findlaw where he states the following: “…many of the conservative justices are devoted to both states rights and presidential power – but in Medellin, the two concepts were at war with one another.”
    Lazarus is correct and, in this particular case, the winners are the American people and the States. But perhaps Lazarus is foreshadowing more than he realizes when he writes the word “war” because he identified two intellectual currents colliding with greater and greater velocity and violence, particularly since 9-11. For court watchers, pencil in any case that focuses on the constitutionality of an imperial presidency — an imperium not beholden to any international body but instead one loyal to the neoconservative voice whispering in the kingly ear. Then see which way the majority swings. The Medellin opinion, while a cause for hope, does not ensure the end of David Addington’s greatest thrill –the theory of the unitary executive power designed to destroy the liberty of 300 million people in the name of promoting war.
    Lazarus’ prescient comment leads one to ask: is a revolution just over the horizon, as if it were 1840 or 1750? The court’s future decisions may decide the response of the people.
    Per Stevens’ concurrence. Perhaps the State of Texas should have conducted a summary review and found harmless the lack of consular notification. But the authority to do so does not arise out of a Presidential memorandum. When seen in that light, this opinion rests upon the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
    Finally, for those who oppose the death penalty, including those who find it as odious as slavery, please don’t let that issue cloud the analysis of the case. True, the petitioner Medellin is on death row. But there are other ways besides the rise of an imperial presidency to abolish the death penalty or place severe limitations on its application. And certainly if the president is concerned (not!) about the due process rights of Medellin as well as others on death row, then he has legal avenues by which he could proceed. And all of them are much better than bypassing the US Constitution and creating an imperial presidency hellbent on war.
    If Arthur Schlesinger Jr. were still alive, surely an analysis of this opinion would have taken center stage in an update of his book, The Imperial Presidency. Too bad that he’s gone. Perhaps he would see the storm gathering just over the horizon — The Third Revolution.

  15. TomB says:

    Just to follow up on Bill Cumming’s excellent latest post, firstly you don’t need Lexis to get S. Ct. decisions, nor indeed Circuit Court decisions. As to the former for instance, just go to http://www.supremecourtus.gov/ and follow the links.
    Secondly, I at least don’t think the decision is going to be seen as radical really, Note for instance that the Court did not really “void” the treaty at all, it merely said that as regards one provision of it at least it wasn’t “executed” by Congress via legislation which told the states what to do. And as Bill himself noted, there have been other decisions of even lower courts whacking at Executive Orders and because they weren’t on as big a subject as seizing steel mills, they aren’t seen as huge big deals.
    In short, in my opinion the decision is not going to be seen as any great irruption of the Court into foreign policy/affairs or but instead just more in the category of a decision limiting Prez. powers, and not any too huge a thing at that. Not insignificant, but not huge.
    Also, just so as to be clear, Justice Jackson’s opinion in the Steel Seizure case (which, it might be interestingly noted, was “just” a concurring opinion and was not in fact the opinion for the Court), was not really focused on dissecting the Executive’s “express” or “implied” powers per se. It was rather more of a kind of “meta” analytical framework. Thus Jackson merely observed there were three situations in which any Prez. acts: The first is where he or she acts with Congress’ approval, and it is here generally where he or she has the most power of course. The second is where thing are fuzzy and Congress has been silent, and the third is where Congress has expressly opposed the Prez., which of course is where he or she has the least power.
    The reason this framework has had so much power I think is because of what I mentioned before which is that otherwise in foreign affairs the Const. is so “laconic” that it’s very difficult to try to tease out whether the Prez. has this or that specific power.
    I think that Mr. Cummings very smartly sees the case as being more broadly interesting than its mere holding otherwise indicates though. That is, it seems to me it’s probably a good illustration of why and how our Presidents have become almost sovereign when it comes to foreign affairs and war (and to a lesser extent, in domestic affairs as well); to a degree almost certainly not intended by the Framers. That is, Congress simply has a hard time getting its act together. Here they ratified the Vienna Treaty knowing that they needed to then pass some executing legislation, and what happened? Nothing. They changed their mind, something shiny distracted them, a new election made it impossible for them to muster the votes to do so … whatever.
    Put it this way, what’s the chances for a committee essentially, a huge big one, up against a huge big enterprise headed by one person with all the ability that person and his enterprise has of focused, determined, resolute action? (Not to mention the ability to “game” the “committee” in any number of ways by encouraging its natural fractiousness, lobbying it this way or that, launching public relations campaigns against it and etc. etc.)
    Of course the “committee”/Congress complains but it plays a game too. Often when it *can* act it pretends it can’t. The power of the purse is about as absolute as exists, and yet for instance during the Vietnam thing they were running around complaining LBJ and Nixon were “out of control” but nonetheless quietly funding ever jot and tittle of what those two wanted. (Until the very end that is.)
    Cheers again….

  16. TomB says:

    Sidney’s Smith’s fine post wasn’t up when I sent in my last comment but one thing he says prompts me to smile a bit. Yeah, Arthur Schlesinger, Jr. may well have loved the case today, with Bush on the receiving end of bad news. But it was funny with Arthur, wasn’t it? He surely didn’t think FDR was all that “imperialm” nor Truman nor JFK. He surely didn’t like Nixon though and so wrote his book in Nixon’s wake, but then suddenly when Clinton came along and was stymied by Congress so often geez, suddenly it was Congress that was acting so imperial. So one wonders just exactly how Arthur, woulda felt about this decision if Al Gore, Hillary Clinton or Barack Obama had been on the receiving end.
    Seems almost like the tragedy of our times, doesn’t it?: *Everyone* seems to have an agenda now that they push or not depending on whose ox is being gored.
    Indeed, as Sidney implies, may be good reason to impute at least some initial regard for Roberts’ decision: I.e., seems to go against the typical agenda of what passes for “conservatives” these days by clipping a President’s wings.

  17. Frabjous says:

    Very interesting thread.  Haven’t read the whole thing yet, so apologies if this has been covered.
    It occurs to me that the refusal of the US to subsume state sovereignty to the ICJ is illustrative of just the governmental structure that will be required if a true federal world government made up of sovereign states is ever to be established.  Which is the natural political-historical evolution of the US system, writ large onto the world stage, as it were.  US Constitution, EU constitution/UN Charter, compare and contrast.
    Oh, the irony!

  18. Sidney O. Smith III says:

    TomB and William Cumming
    Thank you very much for your well written and substantive insights into the Medellin opinion. Much to ponder here.
    William Cumming: the Kagan book you cite sounds intriguing. If memory serves me correctly, there is a historical school that argues that, at least economically, the relationship between certain US industrial and financial interests with different regions of the nation was much like that between the US and lesser developed nations. This idea seems to mirror at least part of Kagan’s thesis, although I believe he is from the neocon school, so high probability that different conclusions would be drawn from the observations. Again, many thanks.

  19. Richard Whitman says:

    We have not considered the practical outcome here. Mexico believes in reciprocity. If you are arrested in Mexico by local or state authorities, you will NOT be allowed to contact the US Consul or Embassy from now on. Be careful.

  20. Frabjous says:

    Very interesting thread.  Haven’t read the whole thing yet, so apologies if this has been covered.
    It occurs to me that the refusal of the US to subsume state sovereignty to the ICJ is illustrative of just the governmental structure that will be required if a true federal world government made up of sovereign states is ever to be established.  Which is the natural political-historical evolution of the US system, writ large onto the world stage, as it were.  US Constitution, EU constitution/UN Charter, compare and contrast.
    Oh, the irony!

  21. Sidney O. Smith III says:

    Richard Whitmann:
    I see the importance of the point you raise, but the Medellin opinion does not preclude a requirement of consular notification. It is holding that the mechanisms are not in place to do so. It is up to Congress, not the President, to implement statutory legislation that would enact the Treaty provisions.
    The Court, in its summary, states the following on page 2 of the slip opinion:
    “While a treaty may constitute an international commitment,it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis. See, e.g., Foster v. Neil-son, 2 Pet. 253, 314. The Avena judgment creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources—the Optional Protocol, the U. N. Charter, or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted. ”
    In my view, the Medellin decision is beautifully crafted. Perhaps much of the composition is fortuitous. But the opinion appears tremendously important; I don’t know why the msm is not highlighting the case and trying to explain its repercussions.
    Granted, I am probably more of an apologist for the role of judiciary than most and I admittedly write from the following assumption: the executive unitary theory is ruinous for our nation, as it will lead to imperial wars not sanctioned by the people. For more info, see “Wurmser option”.

  22. TomB says:

    In these times I can well understand why lay people and even lawyers who haven’t had any particular background in this somewhat recondite field can think Medellin is a big big deal. With all due respect though (and indeed after subjecting myself to this stuff doing some post-law school academic work—the effect of which is by all means questionable), I just don’t see it.
    Again, this wasn’t about war powers or etc., and in the big scheme of things it really seems to be about a rather smallish, narrow issue. That is, as re Prez. powers, simply whether a Prez. can indeed make one small provision of a rather narrow, non-self-executing treaty into a self-executing provision via an EO, period.
    Plus, it appears Texas *would* have given Medellin access to his consular officials if he had asked before his trial, and it may well be that now that they know full well about the Vienna Treaty both they and other states D.A.’s who are paying attention will readily do so even just voluntarily (since there’s no harm really). And Congress now knows too that it damn well should “execute” at least that portion of the treaty if it’s smart and does want reciprocity from other countries.
    Otherwise I don’t see the case as really plowing any new ground in terms of Prez. powers theory or etc. either. I think it you look you’ll see all kinds of cases in the past concerning things not all that different. E.g., cases about Prez. power to freeze bank accounts of foreign countries, cancelling debts of foreign countries to Americans or vice-versa, barring Americans from suing foreign countries and etc., etc. They ain’t common, but they ain’t unknown, and like I say this one doesn’t really plow new grand theoretical ground.
    Of course it *could* turn out to be a bigger deal as a specifically “on point” precedent if a Prez. again tried, as Roberts said, to turn a non-self-executing treaty into a self-executing one, but now that they know better….
    Even though I suspect Bush didn’t really care all that much about this matter and really just issued his EO just so as to give good lip service to internationalism and etc. (but also because he wants reciprocity too), as I think Bill Cummings alluded to in another case there may well be some significant regretting going on in the WH about issuing this particular EO given what the Supremes have now done with it. I mean … if the Prez. can’t even do *this*, well all those “unitary executive” boys can hardly be all that happy, can they? So maybe in *this* regard Sidney and Bill may be right about the case’s importance, but otherwise on its own and in my (certainly arguable) opinion … not so much.
    (And even at that I dunno that the “unitary executive” theory was ever gonna be all the important *judicially* speaking. In fact in just another couple of recent cases hasn’t there been at least one or two “conservative” justices making kinda pointed comments about a President not being a King and etc.? So while there are indeed conservatives on the court, they seem to be more of the paleo stripe rather than of the neo flavor, at least so far. And I have a hard time seeing that change too too much too ((although you never know)) given the pretty clear history behind the constitution as regards Presidential powers. On the other hand given that the Court likes to avoid these questions when it can, the “unitary executive” theory might be important as hell *non*-judicially speaking, which may be plenty important enough as Sidney so clearly sees.)
    In any event what *would* be a big/nice deal in my mind for instance would be the Court laying down some standards for when a Treaty is actually necessary instead of a Prez. just making these “Presidential Agreements” with a foreign country sans any Congressional input whatsoever. (Such as I’ve read Bush wants to do or maybe has already done with Iraq so as to create “enduring” bases and etc.) Now *that* would be interesting, no? If I recall right, there’s damn near no law on the subject at all as to when an international agreement needs to be treatified and when not. So talk about the opportunity for Executive mischief …!
    “Mark”/Frabjous also had an interesting post too talking about irony and the future. And what strikes me as ironic is that for some 90 years now the U.S. has essentially moved heaven and earth for international bodies (such as the League of Nations and the U.N and etc., with both the biggies clearly being U.S. enterprises from the get-go), and now of course we see this huge domestic movement out there hating the hell out of so many if not all of these kinds of bodies.
    And as to the future, yeah, despite that domestic movement, given the globalization of just about everything you gotta believe that there’s just going to be more and more pressure for ever more international bodies and solutions though, don’t you? Hell even the neo-cons seem to feel that pressure too now, with one of ’em now wanting a “League of Democracies” or some such thing. (Kinda like … well, if you don’t like the umpire you’ve got, just go get another one.)
    Not saying I’m a big fan of the U.N. and internationalism or a big opponent, just that regardless, I don’t think you can much argue that this isn’t in fact what the situation is.
    Sorry for the long post, but it’s relaxing to just get away from work and blabber on a bit with all you nice smart folks. (People who are actually *interested* in the Constitution and how they are governed? Sacre bleu!)
    Read a helluva good book lately (“Entertaining Ourselves To Death”) saying that before television people used to actually read and talk about important stuff in some depth like is done here. Seems so different from the rest of modern life. Talking about the sound-bite news we get these days the author had a great line to the effect that the most depressing words in whole world these days are “and now, this…”, merrily blithered out from the lips of our news anchors and etc. after they’ve given some horrible, tiny and probably misleading statement of this or that incredibly important situation.
    Apologies again, and cheers,

  23. Eric Dönges says:

    To all you American constitutional scholars:
    I think you are missing an important point here – there is a growing number of cases where the U.S. is attempting to weasel out of international treaty obligations by citing constitutional issues (see the WTO dispute with Antigua over online gambling for another example). To put it bluntly, the rest of the world doesn’t give a damn about your constitution, fine document as it may be. It expects you to honor treaties you signed, period. If those treaties violate the U.S. constitution, then don’t sign them.

  24. Sidney O. Smith III says:

    I find your following comment both curious and revealing. You write: “In these times I can well understand why lay people and even lawyers who haven’t had any particular background in this somewhat recondite field can think Medellin is a big big deal.”
    Try as I may, I am yet to find any legal scholar who agrees with you and diminishes the significance of the Medellin opinion, so my view remains unchanged: the case is important and will remain so during this time that Philip Weiss calls one of “ideological disarray”. Eric Posner (presumably the Eric Posner) at Slate, while agreeing with the dissent, writes: “the Supreme Court handed down [an] opinion of great importance for understanding America’s obligations”. And he goes on to write: “The legal arguments are interesting, but the larger significance of this case concerns the extent to which international law controls the U.S. government.”
    As one more example of many, there is this quote about Medellin before the opinion was rendered: “Though known primarily to specialists, Medellin v. Texas may be one of the most important cases that the Supreme Court will consider this Term”
    And the fact so many attorney are weighing in on this case suggests its significance.
    As for the case itself, I understand your well reasoned and well written view, but I explained the assumptions upon which my analysis relies. And one can certainly argue that the following statement by the Court places limitations on the expansion of executive powers:
    “The Court’s holding does not call into question the ordinary enforcement of foreign judgments. An agreement to abide by the result of an international adjudication can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. In addition, Congress is up to the task of implementing nonself-executing treaties, even those involving complex commercial disputes. ”
    I realize that in fn 13, the court is attempting to give the Medellin opinion narrow application but that simply enforces my argument in the earlier post: the court is leaving open the avenue of the rise of an imperial presidency but one that does not have to answer to an international body. This is the neoconservative wish.
    But a limitation is in place to prevent the rise of a king who wishes to bypass the constitution. And not all those who promote the idea of an imperial presidency are neoconservatives. (I thought that was the point you made when analyzing Schlesinger’s work ).
    So to use an analogy: the beauty and significance of this case perhaps is much like looking at the “negative space” in a painting. Or, as an alternative, imagine this opinion as a photograph and then look at the negative image.
    By that I mean that my analysis focuses in part on the consequences of a ruling in favor of the Pres. Memo. And what would have happened if the court had ruled “no” as to the first cert question and then “yes” as to the second?
    Back to your quote: “In these times I can well understand why lay people and even lawyers who haven’t had any particular background in this somewhat recondite field can think Medellin is a big big deal.”
    As a proud member of the dreaded hoi polloi, I am confident that I know the Addington m.o. and it is the use of the Presidential memo/executive order avenue to create an imperial president. Don’t believe me? Then read the following and please tell me where I am wrong. It is the second letter in response to a Nation article titled “Cheney and the Constitution”.
    I make no pretenses of knowing a “recondite” field, although I will say that I “studied” under Dean Rusk and Louis Sohn. But wearing such on one’s sleeve is meaningless (as was Rehnquist’s chevrons on the sleeve of his robe) particularly in this day and age.
    And I am just curious. Have you ever uttered such words in front of a jury or judge or for that matter, a law clerk, or even the staff at a courthouse? That sentence sounds like something from a cocktail party of lawyers or perhaps a discussion at a law partners meeting. I am interested in neither, although I have had opportunity for both . Besides I was taught by, among others, a federal judge, that such pomp can alienate the courthouse crowd, and I am willing to bet you that most great litigators would agree.
    Eric Donges
    If I may, I suggest you aim your anger at at David Addington. Here’s a New Yorker article written by J. Meyer entitled “The Hidden Power”.
    Historically, one can argue that the US is slip sliding its ways into the same position as the Weimar Republic, although in a different way. Just look at how the feds are slowing taking over the economy as the dollar becomes debased. As for the legal system, I recommend the work of Roberto Unger.
    As I have written, I admittedly base my analysis on the following assumption: Addington’s concept of a unitary executive power is ruining and will continue to ruin this nation.
    The Medellin opinion does not preclude American obligations to treaties, it shifts implementation towards Congress and away from the idea of an imperial executive . Please read the case.
    There is a problem and one to which I will admit. I don’t think the framers of the US Constitution foresaw the creation of a mass media. And the msm is molding the perceptions of the public through images and words.

  25. TomB says:

    Hi Sidney, appreciated your latest.
    Firstly, I disclaim any and all pomp whatsoever, esp. in face of all the smart people posting here which is why I so disclaimed in the first place. Again, my point in noting that I’ve done some prior reading in the field was solely because it appeared that while a case touching on Prez powers and int’l relations might seem real real rare and thus big-time important just for that reason alone, they have indeed popped up from time to time. And because of the very fundamental nature they often have—dealing with inherent powers of the Prez. and etc.—they often can seem to be weightier than they have turned out to truly be. (Esp. as the Ct. in these cases tries to be real careful and narrow so as to not create huge broad precedent in this kinda blank field.)
    So was just trying to say hey, merely because of the times, and the somewhat uncommon subject matter, these alone don’t make the case big big. Absolutely no offense meant otherwise.
    Beyond that would just observe that my views esp. pertained to some of the suggestions that the case was big big vis a vis Prez. powers, given that I thought some of ’em were maybe reading it as being real close precedent from restraining Bush from moving on Iran or some such thing. (Which is the kind of big big I meant to disagree with.) In the end then its kinda just a matter of degree as to what one means by “big” of course, and indeed I think at one point I simply said I didn’t see the case as being “huge,” which I still don’t. (And I’d note that since I really liked the Robert’s opinion as regards Prez. powers I wouldn’t have minded it at all if I thought it was real big. But, again, I at least just saw it as being right in line with good ‘ol Justice Jackson in the Steel Seizure case. Nice. Solid. Good. But not big big. Not plowing new ground. Not huge.)
    I’d also note in this vein that we were really talking mostly about the case as regards that Prez powers component and not as regards its first issue which was the effect of the ICJ decision and the Treaty itself, where I think the case is indeed a bit weightier. And as you note I think this is the aspect of the decision that some of the commentators on it have focused on in seeing the matter as weighty so I don’t think that I’m really at odds with ’em at all. We weren’t really focusing on that aspect here but certainly, as Eric so trenchantly brought up, it *is* at least kind of weighty *internationally* isn’t it? I.e., here you have our Court saying to the world “oh no, we might well ratify a treaty with you, but then our political games here might make all that mean nothing….”
    So I guess I’ll just stick with my previously made opinion that in terms of its real weight—and again as regards its domestic/Prez/powers part—same won’t really lie with its technical, formal holding. Instead and again I suspect that will be for what it *may* mean (“politically” for want of a better term) concerning how even the “conservative” justices today feel about such things as the “unitary executive” theory or other such ambitious ideas. Otherwise to say it’s gonna be big big judicially, you gotta be expecting Bush or a sucessor to try something big big, and *then* that same would make it to the Court, and *then* that the Court would indeed choose to rely not on Justice Jackson, but instead on this latest decision. And since I don’t read you or indeed anyone as really expecting that, I suspect we might just be in violent agreement with each other.
    Did think Eric’s post was great in pointing out how parochial all this talk must seem to foreigners, even if it is by definition just people here choosing to talk about one aspect of something that we all know has other dimensions.
    On the other hand maybe we all oughta take offense a la the Simpsons’ Kent Brockman: “Hey, Eric! You keep making fun of us Americans interested in the Constitutional limits on Bush and before you know it we’ll quit, he’ll invade your country, and you’ll end up a slave in one of our defense contractors’ giant underground iridium mines….”

  26. Sidney O. Smith III says:

    Hey TomB
    Hope I did not offend you in my post. I may find myself too focused on Addington’s theory of a unitary executive when analyzing cases. Regardless, when I read your last comment, I could tell right off the bat you are the type that would win over a courthouse crowd, from the bailiff to the judge, in no time flat. So it looks like I may have misread one of your sentences. My apologies. Just my opinion — and I am no expert — but I willing to place a bet that you are lawyer’s lawyer.
    As I hope I conveyed in my earlier posts, your insights, at least to me, are helpful and extremely well-written. Much of what you write seems to indicate that you are more than just an expert on international law and the judicial system. Your comments also contribute to a deeper understanding of US foreign policy, at least in my view. So I look forward to reading more.
    I agree re: the comment by Eric Donges. Time permitting, I always try to read anything that he writes, as I believe he has made some valuable contributions to this website. Your response seemed “spot on”, as a Brit may say.

  27. TomB says:

    Hi again Sidney and all.
    You know Sidney, you oughta give us a precis of this “unitary executive” theory since it’s obvious you’ve got a helluva handle on it and I for one don’t know all that much about it. (Never enough time to read all one wants is there?)
    As I said I dunno that we got reason to be worried about it since my sense of the S. Ct.’s view is that it’s far from any such hugely expansive ideas (which I think the Medellin case supports), but you never know do you? There’s some problematic history here for sure. Everyone seems to love Teddy Roosevelt now and I agree he had an enormously engaging personality but geez, you could hardly get further out there than he did with his idea—absolutely bluntly stated as was his wont—that no, the Const. isn’t a document of *enumerated* powers, but instead that unless you could find in it some specific *restraint* on him that he could then do anything at all in the world. Kind of turned things on its head, and then of course, to T.R.’s chagrin, he had to sit back and watch that idea be at least somewhat taken up by Wilson’s very energetic prosecution of WWI. (And then FDR’s *very* energetic prosecution of things leading up to WWII as well.) So we see how these ideas do have their consequences.
    Plus, judicially at least, you should see a case called “Curtiss-Wright” from 1937 I think where Justice Sutherland enunciated a theory that because the powers of external sovereignty pre-dated the Constitution, well, the Prez.’s exercise of foreign affairs not only does not depend on the instrument for his or her authority, but same doesn’t even *limit* it.
    Talk about radical, no?
    To me Curtiss-Wright’s idea have gotten almost no judicial traction whatsoever and when push came to shove it was Jackson in the Steel Seizure case with his wonderful clear analysis who I think kinda set at least the intellectual framework for the judiciary viewing Prez. powers. (Which Medellin seems to confirm even more in my mind.)
    I’d hastily note though that some very very good people have seen Curtiss-Wright as really really important “politically* at least, and really set the modern political mindset on the issue along with Teddy Roosevelt’s general thoughts. And indeed this has its arguments, doesn’ t it? Walter LaFeber is one of the big-time historians who at least had this view and he wrote very strongly about it.
    People might also wanna look into a guy named Harold Koh who I think is at Yale Law who wrote a wonderful book awhile back called “The National Security Constitution” in 1990. Embarrasingly a bit, I thought Koh overstated the LaFeberian case back when his book came out but then, boy, nowadays he can seem kinda prescient even. Koh really *really* saw Sutherland’s opinion as having big-time importance.
    In any event it seems clear that when we talk of S. Ct. cases, esp. in this area maybe, we gotta think not just of their impact judicially but then maybe even somewhat separately in a more general, political and maybe even cultural sense too as to what our Presidents can do. Can one even *imagine* the zeitgeist if Roberts had ruled “oh sure, of *course* the Prez. has the power to upend Texas law with one stroke of his pen” !
    So yeah, there’s some history there for sure and I’d love to hear what Addington is saying from you. Betcha it’s spicy.
    You know though, one thing I’ve always thought (or maybe “hoped” is the better word), is that all the Rooseveltians and Sutherlandians are constrained not just by good law like Jackson’s but also just by the good common sense of the American people. But you can wonder a bit, can’t you?
    I mean, for instance, all these real expansive theories seem to kinda blunder into what I think is a bit of ridiculousness given that if you follow the logic of most of ’em, the Prez.—esp. if they have Congress on their side such as when ratifiying some treaty—could take action or make a treaty expressly at *odds* with the Constitution. (Say by taking away the right of due process in this way or that.) Now I think that’s just a bit nuts, and I think the people wouldn’t stand for it, but look at the argument: The Const. merely says that *both* it *and* treaties are the “supreme law of the land,” right? I.e., on equal footing. So how can the Const. constrain the specific terms of an equally weighty instrument? And, after all, by *definition* most treaties do surrender at least *some* national sovereignty, don’t they? Ergo….
    So boy, when you consider how successful rights-deprivations can be when accomplished via little gradual nibblings instead of great big bites, it sure can make you worried. So worry us some more and tell us what pearls have fallen from the lips of this Addington guy.

  28. condfusedponderer says:

    to me it is an argument unconvincing for a state to make that as these people didn’t as for consular support earlier, it would be silly to only bring that up on appeal. You normally don’t call for something you don’t know. It is highly likely that they simply didn’t know. Worse is that apparently their (assigned?) legal counsel didn’t know too.
    So, proper implementation would probably require the US states to amend the Miranda formula by adding: If you’re a foreign national you have the right to ask for consular support.

  29. TomB says:

    You know I think that every point you make is a simply excellent one. After all, the ICJ undoubtedly knew as well that Medellin had not asked for consular contact until after his trial, right? But they still ruled as they did and so they too obviously thought like you did in some fundamental way. Haven’t read its decision but you’ve piqued my interest. And your implementation idea is maybe a simply brilliant one; hell that would be an easy enough way for Congress to “execute” the treaty, wouldn’t it? Just require your nice succinct phrase be added to the Miranda warnings. Again we’d have to read the ICJ decision and the treaty to see if indeed that would be enough, but it sure would seem to be a helluva easy start. Maybe both of us oughta try to get the time to read the ICJ thing to see what was what about all this.
    Like I think alot of people, boy I’d sure like to make sure I have reciprocity on this when I travel. Also makes you wonder a bit about all the very adamant opposition to the ICJ in some sectors of the U.S. I know I’d be nervous giving some body like that jurisdiction over our U.S. servicemen for “war crimes” or some such stuff which might be conjured up, which is one standard fear cited. (Esp. when you see things like … Libya being named the head of the Human Rights Committee on the U.N. or etc.)
    But then, on the other hand, we see this situation.
    At any rate and in line with what someone posted before, when even ordinary shlubs like us see this consular issue and think that we too would desire reciprocity and etc. so that we might be looking favorably at something the ICJ has done, boy…. At the very least we can sure understand better the full meaning of “globalization” and the seeming pressure and need for ever more reliance on these international bodies and compacts, can’t we?
    Hardly “confused” points, dude….

  30. TomB says:

    You know too “Confusedponderer,” while we’re waiting for Sidney to give us the lowdown on this Addington guy, another thing your post brings up front and center is this whole “self-executing/non-self-executing” business that others here have also seemed to wonder if not chafe at, very possibly with very good reason it seems to me.
    The Constitution after all doesn’t mention anything like this; it merely talks about making and ratifying treaties, period. So where did this little bit of potential mischief come in?
    I dunno I’d have to look it up, but, regardless, to me it’s just another bit of unwisdom of getting too thoughtlessly far from the clarity of the Founders. (Maybe similar to the muddying of the Constitution’s clear language that says that it is Congress that declares wars, period, and not Presidents.)
    For instance, if instead of playing games we just stuck with the idea of there being “treaties,” period, well then every one would be self-executing, wouldn’t they? And maybe then we’d be more careful in making and ratifying them so that we lived up to ’em. You’d have an office in the State Dept. to communicate and coordinate these things with the states when same was needed, and bada bing, seems to me it might get rid of some of the game-playing and/or simple incompetence or whatever of Congress in then goofing around not “executing” these things and etc.
    I dunno, maybe I’m wrong or missing something here. But so often it seems that just when we think we’re oh-so-much smarter than those guys were in Philadelphia way back when….
    Maybe instead of looking to revivify dinosaurs from their DNA we oughta be thinking of going and digging up James Madison and giving it a try with him first.

  31. Arun says:

    To put it bluntly, the rest of the world doesn’t give a damn about your constitution, fine document as it may be. It expects you to honor treaties you signed, period. If those treaties violate the U.S. constitution, then don’t sign them.
    Nitpick – the President or whomever can sign whatever treaties they want, and it is meaningless. The Senate has to ratify them.

  32. condfusedponderer says:

    TomB in particular, and William R. Cummings and Sydney O. Smith III,
    Sixpacksongs asked an excellent question:

    How does that require enabling legislation?

    As a reminder the relevant passage of the treaty, emphasis is mine:

    Article 36: Communication and Contact With Nationals of the Sending State
    1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
    (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
    (b) 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 also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
    (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
    2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.

    The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph“.
    Treaties are considered self-executing when they contain sufficiently clear rules about the rights enjoyed and duties imposed. Then they may be enforced. A treaty is considered to be not self-executing when it merely indicates principles, without containing rules about how to implement them.
    ‘To inform’ doesn’t require special procedural rules to be implemented, nor particular creativity. In a situation where the content of a treaty right is so clear as in Art. 36 VCCR, the onus would IMO not even be on Congress, but on the States to adapt their procedural rules accordingly, which, as I showed up how that would be a very easy and simple thing to do, if there only is the will.
    But then, international law is an arcane matter.
    I have discussed another similar case, LaGrand (more on that below), with Americans before and one of them remarked that they don’t like foreign nationals having more rights than Americans – who don’t get consular support when arrested in the US. That is of course silly, but telling.
    So the Texas authorities didn’t know, or didn’t care. To build on my earlier comment about the lawyers not knowing about Art.36: Lack of information to the foreign nationals by the US states aside, it appears to me that the reason why the Art.36 violations disproportionately pop up in appeal, and in appeal of cases of people usually facing the death penalty for serious crimes, is that this is probably the first time that they have competent counsel.
    The Medellin case reminds me of the case LaGrand (Germany v. United States of America) (link opens PDF file), about two German nationals who had committed murder in Arizona, and who also hadn’t been informed about their right for consular support. The interesting part is this (p.53)

    (The Court) Finds that, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph I (b), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America breached its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1

    Interesting point here. The LaGrands (as the Mexicans in the Medellin case), do not have an individual right per se, rather their country does exercise the right over its subjects. Considering the fate of the LaGrands that also appears quite practical.
    It isn’t as if the US needed the Medellin case as a reminder for their little implementation problem. What I presume, but that is just a hunch, is that the unitary executive folks started this executive order as a trial balloon to see how far they could get unchallenged, but I digress.
    In the Medellin case, or rather Case concerning Avena and other Mexican Nationals (Mexico v. United States of America) (link opens PDF file), the ICJ repeatedly reiterates the LaGrand verdict. It concludes on p.59:

    (4) By fourteen votes to one, Finds that, by not informing, without delay upon their detention, the 51 Mexican nationals referred to in paragraph 106 (1) above of their rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations of 24 April 1963,the United States of America breached
    the obligations incumbent upon it under that subparagraph;


    Going back to Eric Dönges comment, he made a very good point when he said:

    To put it bluntly, the rest of the world doesn’t give a damn about your constitution, fine document as it may be. It expects you to honor treaties you signed, period.

    In this he speaks out in plain terms the simple rule in international law that there is no escape from international responsibilities and obligations into national law. Since when is being a disorganised wuss considered an excuse?
    Even if the VCCR in its entirety is not self-executing, self executing effect can probably be assigned to the sufficiently clear parts of it, that said, I think that certainly applies to the boldened passage.
    Of course, as a sovereign nation, even more so as a super power, the US cannot be forced to comply. But when the US through state or congressional inaction – for international law it is utterly beside the point why – don’t meet their obligations under a treaty, their treaty partners are entitled to retaliate in kind. In the case of consular support that is bad luck for every US citizen caught in-between.

  33. Alan says:

    Check out this artcle regarding the Medellin case:

  34. J says:

    the globalist are now ‘whining’ because of the supreme court decision.

  35. condfusedponderer says:

    PS: Thinking about it, I find it implausible that Bush, the Bushies and especially Addington are wasting any sweat about the fate of foreign nationals in the US or over compliance with international law for that matter. Either interpretation would be totally uncharacteristic.
    Speculating here, it appears that the coming (and presumably open ended) security agreement between the US and Iraq might be just the thing the executive order on the ICJ verdict actually aimed at.

  36. TomB says:

    Hey confusedponderer:
    You write as if I had agreed that the Treaty wasn’t self-executing but I didn’t. Alls I did so far was point out that this is what Roberts and Co. found and that same was the basis for their decision about the ICJ. In fact I even questioned the constitutional wisdom/validity of *having* non-self-executing treaties in the first place.
    Shamed by all your work explaining the Treaty to us though I went back and looked at Medellin again to see how it arrived at its decision in this respect. And for those so interested I’ll give an outline of the decision so as to try to do justice to what you did for us with the Treaty.
    First though a stunner (at least to me) that the case reminded me of that I’m embarrassed to admit I forgot:
    Lots of us have mentioned not liking the idea of us Americans not having Vienna reciprocity and what the case reminded me of was that insofar us and the ICJ we sure as hell got zero credibility now:
    By its own terms ICJ jurisdiction has to be consented to. And there are two kinds of consent possible: *General* consent to its jurisdiction over treaties and int’l law, and *specific* consent to ICJ jurisdiction over particular cases or disputes under *specific* treaties. Well, I knew that we (the U.S.) had withdrawn our initial *general* consent to jurisdiction in 1985, but what Medellin reminded me of was that in 2007 we withdrew our *specific* consent to ICJ jurisdiction over the Vienna Treaty too. This came after Avena and Medellin’s conviction so it didn’t affect that, but it sure affects us now I don’t doubt.
    Anyway, an outline of Medellin as regards Vienna:
    Roberts essentially started by saying that while yes, we had initially submitted to ICJ jurisdiction over the Vienna Treaty in 1969 in what is called the “Optional Protocol” (or “OP”), this has only limited importance. Per Roberts, “submitting to jurisdiction and agreeing to be bound are two different things.” Look at agreeing to submit to non-binding arbritration, he said.
    Roberts then said that any real compulsion to bow to the ICJ must come from the U.N. Charter Treaty we ratified way back in ’49 or so. And that Treaty only said that we should “undertake to comply” with the ICJ, and he made a big deal of saying that this is far different from saying that we “must” comply. Plus, the Charter Treaty provides only *political* and not judicial remedies for failing to live up to the ICJ, he noted. (Such as going to the Security Council.) And all this showed, Roberts claimed, that it was never intended for there to be a right to enforce the ICJ decisions in different countries’ courthouses.
    He then said that that history showed that the various Congresses and Presidents had all understood the U.N. Charter AND Vienna AND the OP weren’t going to be self-executing. Plus, as you noted, Roberts observed that only *countries* and not *individuals* can be parties to the Vienna Treaty and ICJ suits thereunder, again supposedly showing it’s not a matter of individual rights of the sort that are redeemable in court.
    Roberts then noted that of the 171 signatories to the Vienna Treaty and the 47 signatories to the OP, Medellin could not point to even one that has agreed that the ICJ decisions bind their country’s domestic law. I.e., they all seem to regard Vienna and the OP and the ICJ as regards same as non-self-executing.
    So as to spare people my deathless prose I’ll forego trying to detail the dissents and only say they were very persuasive.
    For what it’s worth then, to me it’s a close one, and I’ll readily admit that I think Roberts made a weaker than hell argument saying that consenting to jurisdiction don’t mean agreeing to be bound. Yeah, in some certain cases where that’s made clear, sure, but not here. Pure weightlessness. And then I think there might have been a little sleight-of-hand on his part too when he shifted right away to talking about the U.N. Charter and saying that was the all-important Treaty instead of confronting the stronger language of the Vienna Treaty and the OP more directly.
    But, like I say, if you accept that there are non-self-executing treaties, and you have to even if you think they’re probably a bad idea like I do, I think Roberts and Co. got it right beyond that. Did the Presidents and the Congresses think in making *any* of these treaties at issue that *any* were self-executing? I think Roberts’ history was right on this and that the answer was no, they didn’t.
    Lots of your argument seems to center on this or that specific wording in this or that specific provision of the Vienna Treaty, but I think there’s two things weak with that:
    Firstly, if you think everyone understood the Treaty to be self-executing, then why did they also then need to have the Optional Protocol Treaty with states agreeing to have the ICJ enforce Vienna? After all, if it was gonna be self-enforcing then everyone’s laws would be understood to guarantee the rights, and everyone’s domestic courts would be doing the enforcing, no? Or am I missing something here?
    Anyway, secondly and more importantly, I just don’t think you can look at this or that language in this or that *provision* but instead you gotta look at the whole treaty. Why? Because I think that’s the way our Presidents and Congresses have looked at them when making and ratifying them; as wholes. Now, maybe they should not have, but if the question is what their intent *was* rather than what it *might* have been, then I think the answer is they looked at them as a whole.
    So, like I say, IF you accept that there *are* non-self-executing treaties at all, then you are stuck looking at what the intent was in this regard when they were made and ratified, and I think the intent here was somewhat clear that they were not going to be self-executing.
    I also think that was some pretty strong evidence about other countries showing that maybe nobody at all thought Vienna and the OP were self-executing either.
    So, gingerly, just for the fun of taking a position on it, on balance I at least think Roberts had a bit of the better argument than the other side. But I still say that this monkey-business about having non-self-executing treaties is the root issue and it stinks to high heaven internationally. If you were another country how much faith would you put in having a treaty with us given these kind of games?
    The only thing is, at least with this Vienna Treaty, it seems that everyone else also thought that signin’ the thing to great applause didn’t mean actually effectuating it at home either.
    Like Shakespeare said, is many a slip ‘twixt the cup and the lip, and it seems that with Vienna a whole lot of countries have been doing a whole lot of slipping.
    (And I should thank Alan too; that was a good Human Events article. Didn’t agree with its sensibility and it always makes me cringe to write about something and then see a *good* writer cover the issue, but I did like it anyway.

  37. condfusedponderer says:

    it was nothing specific that you wrote. What irked me though was your bit about congress being wussy. However true that might be, I had to comment. In fact, I welcome the opportunity to converse about the subject.
    The tone of my post reflected my heartfelt disgust over the (blatant mal-)practice and the accompanying (mischievous? confused?) arguments in the US aimed on justifying said practice. But then, Germany’s BGH (federal court) just got slapped by the Verfassungsgericht (supreme court) for not taking into account Art.36 (1) b VCCR.
    They stressed that nationally, ratified treaties are of the rank of federal law, and of equal rank than federal procedural law (the situation in the US states is somewhat different, but as I lined out, for the question of international legality there is no escape to the states from federal obligations). That requires the national courts to duly consider the decisions of the ICJ in the interpretation of the VCCR, because it has been given authority over the treaty in the optional protocol (which the US, as you lined out, withdrew later).
    To me ‘giving respectful consideration’ to the decisions of the ICJ, however, requires more than mentioning them. It means taking into account their rulings in light of the goal of equal application of Art.36 (1) b VCCR in all signatory nations (read: reciprocity). This the US supreme court fails to do in their deliberations. They stand alone.

    You referred to the US withdrawing from the jurisdiction of the ICJ on the VCCR. What that reminds me of is, of course, estoppel and it leads me to the treaty negotiation process. Amusingly the travaux préparatoires shed some light on the US view at the time they negotiated, signed and ratified the treaty. They show that the question of whether Art.36 (1) b VCCR contains an individual right been very actual in 1963 already. Somewhat ironically, the US representative insisted that Art.36 (1) b VCCR holds an individual right and not merely a benefit a citizen has from the right the state holds over his subjects (emphasis mine).

    The object of the amendment [to make the notification depending on the wishes of the national] was to protect the rights of the national concerned.”

    from the official records, UN Doc. A/Conf.25/6, Vol.1 (1963), p.377.

    The US held the view that Art.36 (1) b VCCR gives individual rights in the Teheran Hostages Case. But apparently it looses perceived utility, convenience and attraction rapidly when it is about to become an obstacle to putting people in jail or to death, and even more so under an administration that has made hostility to international law a cherished principle.
    The US are not only not enforcing Art.36 (1) b VCCR properly, but they are at best inconsistent and perhaps cynical in their arguments about it.
    Clearly there are both self-executing and non self-executing treaties. The point is to differentiate what you have in front of you.
    I do not think it is very difficult in the case of Art.36 (1) b VCCR. I haven’t read SCOTUS’ decision on Medellin v. Texas. If Roberts said the VCCR is not self-executing I think that he misses the mark. It is uncontested that the VCCR is self-executing. The U.S. has maintained the self-executing nature of the VCCR since ratification. I don’t know where Roberts takes his insights from, but certainly not from the US government’s arguments. The U.S. position in the VCCR cases has consistently been that, notwithstanding that the VCCR is self-executing, it was not intended to create individually enforceable rights, only rights in the sending state.
    The latter, as the ICJ has IMO argued convincingly, is wrong.
    My idea centers on effet utile, common in European law (without nearly going as far as effet utile led in Europe). A treaty states a goal, that means the signatories want to achieve it. Thus, interpretation must aim on achieving this goal. That is not about giving deference to international law over national law (as US populists like to claim), but merely about implementing the domestic rule of law – about enforcing national laws in power, ratified treaties included.
    I find that approach very straightforward. The goal in our case is the right of foreign nationals for consular support. It is not a natural individual right, but it is a derived right they can individually exercise, for the rights of their country under the treaty to be effectively implemented. For all practical purposes that is sufficient.

  38. TomB says:

    Given that nobody else has posted (we prob’ly drove ’em to hysterical laughter), I guess I’ll blabber on again.
    First I think that “effet utile” idea you amazingly know about is a really great general point. I like it. But I think you were too subtle for me regarding the mechanics of this Medellin thing otherwise though and so I’m a little lost. (Particularly as you say you do accept the validity of non-self-executing treaties and therefore agree that if Vienna was one, the Supremes had nothing to enforce.)
    For instance you state as follows:
    “It is uncontested that the VCCR is self-executing. The U.S. has maintained the self-executing nature of the VCCR since ratification. I don’t know where Roberts takes his insights from but certainly not from the U.S. government’s arguments.”
    But, according to Roberts at least, the U.S. has *never* maintained the self-executing nature of the VCCR, and indeed I think he said no Prez. or Congress ever indicated any differently whatsoever. And certainly the *official* U.S. position in the case Bush took was indeed that the VCCR was not self-executing at all.
    Now, I understand you could just simply be disagreeing with Roberts on that first point, and you could be saying that aha, it’s only under Bush that the U.S. has changed. But then you go on to say as follows which seems to not make these points at all but and instead make a different one entirely:
    “The U.S. position in the VCCR cases has consistently been that, notwithstanding that the VCCR is self-executing, it was not intended to create individually enforceable rights, only rights in the sending state.”
    So by saying that the U.S. has always admitted “self-execution” are you meaning to say that it has (merely) always agreed that the VCCR was self-executing *just in terms of allowing sending states their (political) remedies*?
    If so doesn’t this then mean that you *agree* with Roberts and the Court’s decision that Medellin as an individual had no individual right to redeem in our courts? I.e., that all the VCCR and its Optional Provisions for Enforcement Treaty “self-enforces” is that Mexico had a right to take the matter to the ICJ, and then with its favorable decision in its hand its sole remedies are political? E.g., go to the Security Council and complain (and get vetoed by the U.S. no doubt)? And/or then pursue its ultimate political remedy, issue a demarche to Washington and declare war? (Invade NYC and seize something valuable, like Bear Stearns? Oh, wait a minute …. Whoops!)
    Since I gathered you *don’t* like the Medellin result though, I’m clearly not following you.
    At any rate I dunno. I do think though that this whole thing just shows the historical reality that treaties and int’l law to a degree too do have their problems, so lets talk about that bigger issue. I.e., doesn’t their very nature (as well as their history) lead one to recognize that they are only of *very* limited authority, and that—for want of a better word—we ought not see them as grander than they really are?
    At the very least it seems to me they suffer from two huge problems, don’t they?
    Firstly, in that treaties are in essence just like domestic contracts, just like a great professor I had noted there’s a kind of paradox with same: If you really trust the other guy why do you need one? And if you *don’t* trust ’em do you really think you’re gonna get real good faith performance from them on big tough things they don’t really wanna do merely because of that scrap of paper?
    Secondly, and even worse, unlike with domestic contracts there’s just no way to enforce treaties or int’l law really. If I have a contract with you and you break it and are held to owe me money I can have a sheriff go and at gunpoint if necessary take your property and you can’t resist. In theory and at bottom that’s what government is after all, right? An agreement to cede the use of force and give government a monopoly on the use same. But there is no world government that people have really accepted as such in terms of treaties and int’l law, is there?
    Governments know this of course, and know that ultimately the only enforcement they have of their perceived int’l rights is the size and quality of their military. I.e., Realpolitic. Hell, even Liechtenstein would probably never give up its right to have and use an army in favor of this or that int’l law or body. So when governments moan about these things, I think it’s worth remembering that they knew that the nature of these things is that they have only limited, conditional strength.
    The great irony of this Vienna and Medellin thing though is of course that it has been the U.S. above all that has been the leader in trying to change this since WWI. Whether it’s the League of Nations idea, then the U.N. and the World Court (the ICJ) and on and on, it’s the U.S. that’s been the big leader/pusher for a more idealistic, legalistic international basis of relations.
    But now, as you ruefully note….
    I will say though that I don’t think it’s the *whole* picture to just blanket condemn the U.S. For the Idealists out there who might hold to same, well, I’d say, hey, historically, at least the U.S. has moved the ball up the idealistic hill to some degree. And let’s face it, for those who disagree with Medellin they have to be willing to stand up and say nice and clear “Yes, I agree that the ICJ ought to be able to overturn one of my state’s otherwise perfectly fair criminal convictions for a heinous case of multiple rape, torture and murder for a guy who admitted to same within two hours of being arrested and who never even asked to see his consular official until after he lost at trial, period.”
    I dunno, maybe that’s okay since it doesn’t bar any state from retrying such a person. But the uber-Idealists out there go further too. After all, if they want the U.S. to respect the full jurisdiction of the ICJ then they probably also have to say “Oh and by the way, I also am in favor of the ICJ being able to try and convict American servicepeople as war criminals for invading Iraq without U.N. approval.” (Not that I ever thought this Iraq thing was ever anything other than wrong to begin with, but to label our servicepeople as war criminals? Yeesh.)
    And given some of the grotesqueries of the U.N. over the years, they kinda gotta say we should ignore these too don’t they? Libya as head of the Human Rights Committee, standing ovations in the General Assembly for horror show mass murderers, turning blind eyes to this or that genocide, terrible financial corruption…. After all the U.N. owns the ICJ essentially, so what if it appointed, say, Robert Mugabe as Chief Justice of the ICJ? Would they still really be saying that’s a price we gotta pay for idealism to see him sit on the case of whether our servicepeople were war criminals?
    Given all of this then, don’t you think that we oughta regard treaties and Int’l law with somewhat of a jaundiced eye, and not be too too impressed with either?
    You know, the funny thing is I think if you asked any normal person who has thought about these things to describe themselves I suspect almost none would say they were either hard-core Idealists or hard-core Realists. Everyone understands that no one theory or doctrine has all the answers. But what’s odd to me is that somehow our political system seems to ineluctably be forcing our *political* “leaders” into taking ever more ideologue-like positions, and then of course favoring true ideologues like I think Bush is.
    Really odd to me. Americans have always struck me above all as pragmatists, not nearly so beholden to culture or etc. as many other people. And yet here what does our politics do except seem to ever increase the tendency to only give us choices between ideologues?
    Like a great fly-fishing writer I love says, sometimes it can seem that life resembles nothing so much as an elaborate practical joke.
    I suspect the problem is the ancient, sociological one: Almost no matter how big a population, a smart, energetic and determined enough little claque can determine its fate. (As in “political party activists”?) Hell, look at the Bolsheviks: Lenin took over the whole bloody Russian Empire with what, a hard core little inner group of 50 people maybe? And was it all that different at his start at least with Hitler and Germany?
    THE tragedy of human society maybe.
    (And geez, what a long, terrible, bloated post this is. Sorry. You guys have really sucked me in to this. A blessing for everyone I gotta get back to work…)

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