What the Medellin Supreme Court Decision Really Means

The major media narrative on the U.S. Supreme Court’s decision this week in Medellin vs Texas (pdf of the decision here) has trumpeted a defeat for the Bush administration. The New York Times’ headline: “Justices Rule Against Bush on Death Penalty Case.”

The issue was whether a treaty was “self-enforcing” in overriding states’ legal procedures, and whether the president can order the states to accept the override. Medellin claimed that the U.S.’s adherence to the 1969 Vienna Convention required that he should have been given immediate access to the Mexican consul.

The bigger, real issue is that the Supreme Court has set forth necessary new guidance requiring that the Congress and President – the political arms of our government – must take responsibility for precision in entering into treaties, in an age when assertions are increasingly made that “international law” either supersedes or should influence U.S. law.

The Supreme Court majority have been criticized by those who seek primacy of “international law” over U.S. law, ironically, for not adhering to the literal words of the Constitution’s Article Six:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

As NPR’s legal affairs correspondent, Nina Totenberg, outlines:

Writing for the court, Chief Justice John Roberts said that because the treaty did not explicitly say its provisions were binding, and because there was no legislation to make the treaty binding, the president could not on his own force the states to comply.

"There is no reason to believe that the president and the Senate signed up for such a result," he said.

The dissenting justices, Stephen Breyer, Ruth Bader Ginsburg and David Souter, said some 70 existing treaties are in jeopardy because of Tuesday's ruling.

Critics of the decision say there is a “self-enforcing” power that overrides the states’ judicial procedures. The Supreme Court’s majority says there isn’t.

[T]he non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts. The President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution. But he may not rely upon a non-self executing treaty to “establish binding rules of decision that preempt contrary state law.”

In so deciding, as the Court decision’s syllabus says, a treaty 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.” Further, “neither Medellín nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. The lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of its domestic law strongly suggests that the treaty should not be so viewed in our courts. “

Both supporters and critics of an expansive view of “international law” should, actually, take heart from this new clarity of interpretation. As a practical matter, imprecision should not be dumped on the courts, and our politicians do have the primary responsibility for making and executing our laws. Now, they must, and both sides can battle openly, before the people, as they should, instead of rushing to courts.