More Thoughts on Medellin

After a cursory glance of the opinion in Medellin v. Texas (here), it looks like the Court largely sidestepped one of the major questions in the case. The Court appears to have focused primarily on the international law portion of the debate at the demise of solving the federalist issue. President Bush had declared in a Presidential Memorandum that state courts would enforce the ICJ’s decision in Avena to grant foreign nationals access to counsel in certain scenarios. The Court seems to have mainly focused on “whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts[emphasis in original.]”

The focus on the ICJ’s decision isn’t surprising given the performance of the Justices and attorney’s during oral argument last October. The traditionally liberal-minded Justices scoffed at the idea of a Presidential Memorandum holding any real weight and even the traditionally conservative Justices were incredulous at best. The discussion kept going back to whether or not Congress could enter a treaty that is later redefined by an ICJ opinion and that lean is reflected in the opinions. The court did have this to say about the President’s authority regarding self-executing treaties:

Once a treaty is ratified without provisions clearly according it domestic effect, however, whether the treaty will ever have such effect is governed by the fundamental constitutional principle that “‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.’”… As already noted, the
terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.

The majority opinion written by the Chief Justices covers a lot of ground in only 35 slip opinion pages. The Chief includes this gem in the middle:

The dissent’s approach risks the United States’ involvement in international agreements. It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States’ efforts to negotiate and sign international agreements.

Roberts rejects the treaty for more reasons than that, but my feeling from past opinions written by the Chief is that he is particularly fond of assides that add nothing but biting dicta. For example, he declared that “(We already know, from Sanchez-Llamas, that this Court disagrees with both the reasoning and result in Avena.)” An aside of that variety is Marbury-esque in the sense that the Chief is saying nothing more than “the law says this, but we are also super-excited that we have come to this conclusion.” The Chief’s obiter dictum warmly invite accusations of power-mongering and self-interested interpretation of the already hazy facts of the case.


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