Thursday, October 11, 2007

Medellin: The International Arbitration Analogy

In today's New York Times, Linda Greenhouse generously describes yesterday's Medellin argument as an "intense and lively seminar on presidential power, international law and judicial authority." Greenhouse (and Robert Barnes in the Washington Post's story) make much of the extra time the Chief Justice, sua sponte, provided counsel (twenty-six minutes total, to be precise, according to Greenhouse), and attribute this to the importance of the issues raised. There is, though, a less generous interpretation: the Justices (to be kind) are unfamiliar with international law and international institutions, and counsel (for their part) didn't do enough to educate the Justices or, failing that, to help the Justices put the complex matters at issue in terms more familiar to them.

One way they could have done so was to analogize Medellin to the enforcement of an international arbitral award in a commercial dispute. After all, the United States and Mexico entered into an arbitration agreement (the Optional Protocol) that provided for arbitration before a panel (the International Court of Justice) that issued an award (the Avena judgment) that the petitioner in this case (Medellin) is seeking to enforce in U.S. courts. There are two significant differences between the enforcement of an international arbitral award and the enforcement of an ICJ judgment that make this case much trickier than the standard arbitration case: (1) in international commercial arbitration there is a treaty (the New York Convention) that has been incorporated into U.S. law by at statute (Chapter Two of the Federal Arbitration Act) that clearly calls for judicial enforcement of international arbitral awards; and (2) enforcement of the ICJ judgment at issue here, by means of the Presidential Determination, raises constitutional issues concerning judicial power and federalism. The challenges for the petitioner (and for the United States as amicus) were, therefore, twofold: (1) to convince the Court that the Avena judgment was constitutionally incorporated into U.S. law; and (2) to explain the limitations of that incorporation.

With regard to the first challenge, Donald Donovan, for the petitioner, chose (as his primary argument) an extreme position: the Avena judgment is directly enforceable (even without presidential action) because the three treaties (the Vienna Convention on Consular Relations, the Optional Protocol to the VCCR, and the UN Charter) are U.S. law per the Supremacy Clause. This is clearly a losing argument (though Justice Breyer seemed entranced by its simplicity), especially before this court, and, given that, it's unclear why Donovan even attempted to make it. Paul Clement (for the United States, as amicus) took a different tack: the Presidential Determination was the necessary act incorporating the judgment into U.S. law. Contra Donovan, without this act, the Avena judgment would have no domestic effect. In other words, to return to the analogy, the Presidential Determination does for the Avena judgment precisely what Chapter Two of the Federal Arbitration Act does for international arbitral awards. The problem with the determination is not the incorporating role that it might play in U.S. law but the President's authority to issue a document that may serve that purpose. No one questions whether Congress could pass and the President could sign the Federal Arbitration Act (or a law that incorporated Avena), but can the President unilaterally act with the same effect? Clement yesterday (and previously in the U.S. merits brief) attempted to show why the President has the relevant authority. If you were with the majority in American Insurance Association v. Garamendi, 537 U.S. 1100 (2003), then you will probably agree with Clement. If you were with the minority, you might still agree with Clement, if you view the evidence of presidential authority in Medellin as stronger than that in Garamendi. For example, I anticipate that Justice Ginsburg, who filed a dissenting opinion in Garamendi, as well as Justice Stevens, who joined Justice Ginsburg's dissent, will side with the Government here. Justices Scalia and Thomas (also Garamendi dissenters) will not.

But even if you see things Clement's way, there remains the issue of the limitations on the President's authority. In the chaos of yesterday's argument, this was really the question that needed answering if the petitioner is going to win. (Chief Justice Roberts and Justice Kennedy, who are the swing votes here, needed the most assurance on this point.) Again, the arbitration analogy is helpful. Chapter Two of the Federal Arbitration Act (specifically, 9 U.S.C. 207) states that awards shall be enforced "unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the [New York] Convention." Article V of the New York Convention sets out seven such grounds, most of which are procedural, but also include failsafes such as "public policy." Properly, these grounds are narrowly interpreted by courts, but they exist and are occasionally employed, and thus have weight. The Presidential Determination, by contrast, does not recognize, at least on its face, any limitations on the incorporation of the Avena judgment. When Chief Justice Roberts and the other Justices were wondering about the evisceration of judicial authority (meaning their judicial authority), this is what they were getting at. Don't they have a role here, if only a screening function like that envisioned by Article V of the New York Convention? The answer should be yes (for constitutional reasons and for control reasons), and Clement attempted to get at that by stating (at page 33 of the transcript, responding to Justice Kennedy): "[T]he President can't displace the role of this Court. It's just that the role of this Court in a situation where there's been a judgment and the executive branch has viewed that judgment as something we should comply with, then the role of this Court is limited to deciding whether there was jurisdiction to issue that judgment in the first place; and then the secondary role of this Court would be to say, does the rule of law embodied by that judgment violate the Constitution." In this way, the Court can act both as the final interpreter of U.S. law (including the Vienna Convention, as it did in Sanchez-Llamas v. Oregon, 548 U.S. __ (2006)) and enforce a different interpretation of that law made by a competent arbitral entity like the ICJ. If the Court rules in favor of the petitioner (as I think it will), then expect some variation of Clement's limiting principle to play a significant role in the Court's opinion.

Thinking about this case through the arbitration analogy allows the Court to understand what's at stake here, what's not, and what its proper role should be.

Prediction: Petitioner will prevail by a 7-2 (Justices Scalia and Thomas) or a 6-3 (Justices Scalia, Thomas, and Alito) majority.