Monday, August 11, 2008
Months ago, I posted and posted and posted and posted about the Medellin v. Texas case and my concerns that if the U.N. Charter is non-self-executing and therefore without force as a matter of domestic law, the same might be said of the CISG.
Those concerns continue, and I have now written a piece about the case and the difficulties it raises in terms of U.S. participation in international treaty regimes. The article is available on SSRN here.
Here's the abstract:
In Medellin v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States' obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellin's case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. The five Justices who signed the Chief Justice's Majority opinion, including the Court's self-proclaimed originalists, thus joined an opinion that construed the Constitution's Supremacy Clause without any serious consideration of its language or the history of its drafting, ignoring evidence of the Supremacy Clause's original meaning cited by the dissenting Justices.
This Article explores the meaning of originalism in the context of the Court's Medellin decision and contends that the Majority's opinion, while perhaps defensible on other grounds, cannot be reconciled with any identifiable version of originalism. Rather it is best understood as a decision reflecting the conservative Majority's political commitment to favor principles of U.S. sovereignty and federalism over compliance with international obligations, even when the consequences of such a commitment is to enable state governments to undermine the foreign policy decisions of the political branches of the federal government.
Ultimately, however, the Article concludes that Medellin's case never should have come before the Court. The President has a duty to "take Care that the Laws be faithfully executed." The Court determined that the Bush administration did not satisfy this duty by issuing an Executive Memorandum directing states to comply with the judgment of the International Court of Justice. That being the case, the President now must comply with his Take Care Clause duties by working with Congress to make certain that federal law compels compliance with the International Court of Justice's judgment. Indeed, this Article contends that the Medellin case is emblematic of the U.S. executive branch's broader failure to ensure that all treaties requiring domestic implementation are in fact implemented so as to avoid placing the United States in violation of its international obligations.