Medellin v. Texas: Looking Ahead

This morning, the Supreme Court of the United States decided that, at present, state courts are not obligated to follow the judgment of the International Court of Justice in Avena. Others will parse the Court's decision. Briefly, I thought the Chief Justice Roberts's conceptualization of non-self-execution was quite unsubtle. For him, it is all or nothing - if a treaty is self-executing, then it is a part of U.S. law; if it is non-self-executing, then it is not and cannot be, except through implementing legislation. But simply because a treaty (in whole or in part) is non-self-executing does not necessarily mean that the President does not have the authority to execute it. Indeed, the Senate, when providing its advice and consent to ratification of a non-self-executing treaty, may well assume that the President will take domestic action to enforce the treaty's provisions. Roberts simply presumes that the Senate would never make this assumption; for this reason, Roberts places the President's action in this case in Youngstown category three. It is unclear, however, that this is an accurate portrayal of how the relevant constitutional actors (the President and the Senate) conceptualize the advice and consent interaction, either generally or in the circumstances of this case.

Taking the Court's decision as is, though, how do the relevant parties move forward? What are their options?

For Mexico, today's ruling clearly is problematic, and Mexican domestic politics may require the Mexican government to take some action. There are several possibilities, none of them promising. The most likely initial step will be the lodging of a diplomatic protest. That protest may take several forms, including calls from Mexico's President and Foreign Minister to their U.S. counterparts. Mexico may threaten to raise U.S. noncompliance with Avena at the Security Council. Of course, the United States will veto any resolution that is critical of U.S. actions, but there will be diplomatic and public relations costs nonetheless. Mexico might also seek further ICJ rulings on this matter, either through an application for an interpretation or revision of the Avena judgment (see articles 60 and 61 of the ICJ Statute) or through a request by the General Assembly for an advisory opinion. There would be jurisdictional issues with an attempt at revision (particularly in light of the U.S. withdrawal from the Optional Protocol), and it is doubtful that the ICJ would want to push the United States further, but, again, though ultimately unsuccessful on the merits, costs would accrue to the United States by having to fight the fight. All this means that Mexico might seek to negotiate a deal that would avoid further embarrassment to the United States. What that deal might entail is a matter of speculation.

For the United States, today's ruling is also clearly problematic. The fact that the President took the action he did in 2005 to attempt to implement the Avena judgment gives a good indication of the Executive Branch's views regarding the downsides of noncompliance with the ICJ's judgment. If there is the political will, the President might seek legislation to implement Avena; indeed, perhaps the Democratic Congress will take independent action. In the short-term, though, the President and the State Department will need to work on a number of fronts to placate Mexico and to assure the international community (including the ICJ) that the United States takes its international obligations seriously.

For the Mexican nationals who were the subject of Avena, today's decision is, of course, particularly unfortunate. For those who are incarcerated outside of Texas, there is still the chance that their state courts will follow Oklahoma's lead and give substance to the United States's obligations. For those incarcerated in Texas, they will need to rely upon the unlikely support of that state's governor (in clemency proceedings) and legislature (for a legislative fix).

ADDENDUM (9:15PM): Roberts's opinion is striking in the stark way he conceptualizes the constitutional roles of the three branches of the federal government. In the Roberts world, each branch has its own powers - to legislate, to execute the laws, to interpret the law - which are exclusively given to it. The branches (and their accompanying powers) are like boxes, self-enclosed, non-overlapping. (Roberts probably has the same black-and-white vision of the relative domains of the federal government and the states; he was able to avoid that topic today by deciding the case in the way he did.) One gets a good sense of Roberts's perspective from the Medellin argument transcript, where Roberts and Scalia and others on that side of the aisle were clearly concerned about the possibility that the role of the federal judiciary would be reduced if the petitioner prevailed. But it is even clearer in today's majority opinion, where Roberts is extremely solicitous of Congress's legislative powers. It is for this reason that Roberts cannot contemplate the possibility - which I alluded to above - that a non-self-executing treaty might be executed by the President. That simply is not possible if you are Chief Justice Roberts, because only the Congress has the legislative authority (and it is only through formal legislation that a non-self-executing treaty can be executed). One wonders whether that is an accurate description of the Constitution, in which the Framers purposely incorporated cooperation, as much as division, between the branches (and which, moreover, contains numerous ambiguities concerning the allocation of powers). One also wonders whether that is a workable and desirable framework moving forward.