The Supreme Court’s Off-Ramp from the Road To Medellin
[Posted by WLS]
Having taken some time now to read the oral argument from yesterday, I think I see the outline of the route the Court is going to take to get out of this case and to avoid the more signficant constitutional issues.
Key to this case, in my view, is the fact that the parties to the dispute are Texas and Medellin, and the US is only an amicus.
Rather than focus on the significance of the President’s directive that the ICJ’s decision should be given full effect, and how that might/might not bind the State Courts of Texas to waive their procedureal rules, the Court can instead focus on whether Medellin has any rights which he can personally assert against the State of Texas based on the ICJ’s decision and Texas’ refusal to waive its procedural rules.
The Court has previously held in Sanchez-Llamas, contrary to the judgment of the ICJ, that the Vienna Convention creates no judicially enforceable rights in any individual. The President’s decision to direct that the ICJ’s contrary view be given full effect by state courts in the 51 specific cases puts the Exec. branch on the other side of that issue. Its not that the Pres. believes the ICJ is right and the Supreme Court is wrong, as the Solicitor General pointed out, only that the US bound itself by the Optional Protocol to respect and enforce the decisions of the ICJ even where we didn’t like them.
Several members of the Court were curious yesterday about how it is that Medellin, a person who was not a party to the ICJ suit, can claim any substantive legal right arising out of the ICJ judgment, even setting aside the fact that such a substantive legal right was found not to exist by the Supreme Court previously in the Sanchez-Llamas case. And this is where I think the Court is going to find its off-ramp from the road to Medellin.
The Court can deny Medellin’s claim for relief on the basis that the ICJ judgment cannot be lawfully interpreted to confer substantive legal rights on an individual not a party to the litigation. Medellin’s claim that Texas has not provided him the hearing required by the ICJ decision may very well be true, but that is not a claim that Medellin can assert because the Vienna Convention gives him no enforceable rights — according to the Court in Sanchez-Llamas. At most it gives Mexico a diplomatic claim which it took to the ICJ.
Rather than Medellin bringing an action against Texas for not giving him the hearing, it would be up to the Bush Administration to sue Texas in order to force it under Article VI of the Constitution to comply with the Treaty obligations as a member state of the United States. The Supreme Court would have original jurisdiction over such a suit under Article III, and it would be for the Supreme Court to decide what Texas’ compliance obligation is with respect to the Vienna Convention and Optional Protocol. It would be in that suit that the Court could say the Executive Branch has/doesn’t have the authority to force a state to disregard its procedural rules and to conduct a hearing in accord with Treaty obligations.
That’s my prediction.
For today anyway.
Makes sense.
Christoph (92b8f7) — 10/11/2007 @ 7:14 pmI think you present a good analysis. I’d hate to see Texas get sued but it would be interesting to see a trial in the Supreme Court. Those don’t happen very often.
DRJ (74c23b) — 10/11/2007 @ 7:26 pmwls,
Great analysis. Do you have any opinion as to whether Bush would sue Texas? He would lose a lot of political capital if he did. I’m not sure he cares about that at this point in his term of office.
Jerri Lynn Ward (bf2d8c) — 10/11/2007 @ 7:30 pmThere’s no way Bush would sue Texas, Jerri Lynn, unless he intends to relocate to Mexico.
DRJ (74c23b) — 10/11/2007 @ 7:33 pmWhy would the Supreme Court try to “get out of” this case?
Didn’t they take the job to step up and make the hard calls?
alphie (99bc18) — 10/11/2007 @ 7:36 pmDRJ,
For some reason, I put nothing past Bush when it comes to issues that involve Mexico. That’s probably just a function of the rage I feel toward him these days. That said, you are probably right.
Jerri Lynn Ward (bf2d8c) — 10/11/2007 @ 7:42 pmAlphie,
Typically when lawyers talk about “getting out” of a case they are referring to the idea that courts want to decide cases on narrow grounds. Some people consider this a conservative doctrine but there’s really no point deciding 12 issues if deciding 1 issue will resolve the case.
DRJ (74c23b) — 10/11/2007 @ 8:06 pmDRJ,
Seems lke the easiest thing is for Texas to simply comply with the ruling like other states are.
Barring that, Bush can use financial leverage to get Texas to comply.
Let him start with cutting off farm subsidies and defense contracts and work towards the free oil Texas companies are pumping out of U.S. territory in the Gulf.
I think Texas would get back on the team right quick.
alphie (99bc18) — 10/11/2007 @ 8:34 pmAlphie,
Are you sure other states are complying? I don’t know about other states but it’s my recollection that several days ago Patterico commented on another thread that California doesn’t recognize this and the Ninth Circuit upheld that position.
DRJ (74c23b) — 10/11/2007 @ 8:52 pmDRJ,
The link to oral arguments said that Oklahoma has already begun its review of the cases.
alphie (99bc18) — 10/11/2007 @ 9:29 pmI think DRJ’s analysis is a good one, and it is probably a course of action the court will take seriously.
An interesting consequence of this will be to see if Roberts really will put his money where his mouth is on the issue of trying to have narrow rulings with a wider majority of Justices. I think Roberts could get 7 votes going DRJ’s way, but only 5 if he decided to decide the larger and more controversial issues right then and there.
—
Ness (e8dfda) — 10/11/2007 @ 9:36 pmAs an aside and in response to Alphie, above, all the states are in “compliance” with the Viena treaty’s rule that foreign nationals should be notified of their right to contact cosulate official. None of the states are in compliance with the ICJ’s belief that failure notify a foreigner of this right is grounds for rehearing or dismissal of charges. (I’m basing this on the oral argument transcript only, btw.)
Thanks, Ness, for the compliment and the information.
DRJ (74c23b) — 10/11/2007 @ 9:57 pmIf that’s the case then the federal government needs to exercise its Article 6 constitutional muscle and show the states whose boss when it comes to Treaties.
Christoph (92b8f7) — 10/11/2007 @ 10:20 pmI’m pretty sure that the Oral arguments said that Oklahoma had begun it’s review of cases. I didn’t see anything in there about California.
chad (582404) — 10/12/2007 @ 5:34 amChad, make sure you revisit this thread starting here (and scrolling up if you want to see what lead to it). Too tired to provide context. Must chat with girlfriend and sleep.
Take care.
Christoph (92b8f7) — 10/12/2007 @ 5:38 amI read the orals too. I came away with the impression that some states were complying with ICJ, some were not (including Texas) with regards to re-examining (as opposed to working on ensure foreign nationals were allowed to contact their embassies, which all of them should be) past cases.
I remain unclear on why the state has responsibility to see to it that those who are pretending they are not illegals are offered rights they pretend don’t apply. If they were citizens of the U.S., the treaty would not apply. How is L.E. supposed to divine they are due those rights?
I say “don’t ask, don’t tell!” If they don’t ask for contact with their embassy, we should have no requirement to provide it. It’s up to their lawyer to see the request is made. In the Medellin case those lawyers did not, as I understand things.
Dan S (c77713) — 10/12/2007 @ 7:05 amHmm, since some states and localities explicitly forbid law enforcement to inquire about a defendant’s citizenship/legal/illegal resident status, how can they possibly comply with consular notification?
LarryD (feb78b) — 10/12/2007 @ 7:23 am@ Larry #17:
“since some states and localities explicitly forbid law enforcement to inquire about a defendant’s citizenship/legal/illegal resident status, how can they possibly comply with consular notification?”
Good question that I’ve raised myself. Obviously if local police authorities are willfully being blind, deaf, and dumb regarding detainees/arrestees/defendants/prisoners citizenship or nationality status, they are ignoring the Vienna Convention’s consular notification requirements.
Consul-At-Arms (f4574f) — 10/12/2007 @ 8:52 amConsul-At-Arms: I don’t know that i’d describe it as willful blindness on the part of the local police, when the local police have been directed to be blind by the local legislature.
aphrael (e0cdc9) — 10/12/2007 @ 9:17 amThe treaty requires that foreign nationals be made aware of their rights, and that communication between the foreign national an their embassy or consulate be facilitated if desired.
In other words, if the police advise EVERYONE that they have such rights, they have complied. If the police facilitate such contact AFTER it is requested, they have complied.
So, the burden is on the person being detained to express a desire to be in contact with his consulate officials, which would be necessity require that person to advise the police what country he is from.
Obviously, when the police advise a US citizen that they have the right to contact a consulate official, its a meaningless gesture. But by advising everyone without regard to whether they are thought to be a foreign national or not, the police satsify any obligation they have to people who actually are foreign nationals.
WLS (bafbcb) — 10/12/2007 @ 12:01 pmThere would be less problem with identification and notification if every jurisdiction participated in ICE’s Criminal Alien Program.
DRJ (74c23b) — 10/12/2007 @ 12:57 pmThe issue boils down to whenever foreign bureaucrats have supremacy over US tstate and national law. When one reviews the requirements of the Constitution it makes no sense to argue that a mere treaty trumps our laws nor is there any justification for it. Its time for Americans to re assert the 9th and 10th Amendments which trump any of the nonsense that the internationalists and one worlders posit so squirrilously.
Thomas Jackson (bf83e0) — 10/12/2007 @ 6:41 pmNo it doesn’t. The Treaty forms part of your law as per your constitution. Texas accepted this when they rejoined the union.
As usual, you’re a moron. Don’t want to be part of a Treaty? It’s very easy. Don’t sign it.
Christoph (92b8f7) — 10/12/2007 @ 6:45 pmI’ve had it with Christoph calling everyone who disagrees with him a moron.
DRJ (74c23b) — 10/12/2007 @ 6:50 pmHis statement was evidence of being a moron.
When one completely ignores what Article VI of the constitution says, sure. But as stated by Thomas Jackson, he’s an idiot.
Christoph (92b8f7) — 10/12/2007 @ 6:51 pmThomas Jackson has the basic issue right, in my view. The issue boils down to whether a foreign court can dictate to the US, in contravention of state (and possibly even federal) laws and US Constitutional principles.
Patterico (bad89b) — 10/12/2007 @ 7:08 pmI disagree. It seems to me that if this Treaty is problematic, the U.S. could have insisted on changes and, if it didn’t get whatever changes it wants, it doesn’t ratify.
Bush did withdraw from the Optional Protocol because he doesn’t think they support U.S. interests. He is attempting to follow the law that was — as set out in the Treaty, which forms part of your laws per your constitution — in place at the the time.
His reasoning is more likely than not because of criticism the U.S. gets that it doesn’t follow its International agreements so I feel he’s setting an example that it does. The long term benefit to the U.S., which intelligent people could argue about, is that it raises the value of the U.S. signature on other Treaties in the future.
But in any event, Treaty obligations form part of U.S. law by your own longstanding constitution.
That’s my opinion. You can call me dense if you like. I can take it and I’m STILL going out for some hot chilli, so there.
Christoph (92b8f7) — 10/12/2007 @ 7:14 pmIs it consistent with the Constitution for us to agree by treaty to subject ourselves to the jurisdiction of a World Court that might order us to do unconstitutional things?
This was discussed by the Supreme Court in the oral argument. It is the issue whether you recognize it or not.
It reminds me of a post I once wrote titled Simon Says: Don’t Obey Me:
What trumps? The rule that says you don’t do what the leader says unless he says Simon says? Or the rule announced by the leader that says to follow all instructions regardless of whether the leader says Simon says?
I have a feeling we’re looking at a similar paradox.
Patterico (bad89b) — 10/12/2007 @ 7:36 pmA scary glimpse of John Boy Roberts’ keen legal mind?
Most treaties America signs have an arbitration mechanism.
Is Oklahoma now violating the Constitution somehow by complying with the ICJ ruling (the actual ruling, not some imaginary one).
alphie (99bc18) — 10/12/2007 @ 7:46 pmIf that’s too easy, try this:
Simon says: Follow *all* my instructions without regard to whether I say “Simon says.”
Now, ignore that instruction.
Simon says ignore that instruction.
Touch your nose.
Patterico (bad89b) — 10/12/2007 @ 8:12 pmPatterico — the foreign court didn’t “dictate” to us — we dictated to ourselves when we agreed to the Optional Protocol that granted mandatory jurisdiction to the ICJ over disputes involving the treaty.
The question is how does the Supreme Court define and draw the boundaries about what it is we surrendered there.
wls (fb8809) — 10/12/2007 @ 10:19 pmThink the Shrub is challenging Marbury v. Madison? Just asking.
nk (6e4f93) — 10/12/2007 @ 10:32 pmIf congress signs off on a treaty and it then becomes part of the constitution, then you are arguing that congress can override the constitution with a single vote. I thought anytime there was conflict between the constitution and congress,the constitution was the default winner ummm, usually.
M. D. Best (6f6880) — 10/13/2007 @ 9:03 amA treaty doesn’t become part of the Constitution — a treaty becomes a part of the “supreme Law of the Land.” As the parties and the Court members both agreed, a Treaty that obligated the government to act in an unconstitutional manner — such as the example used on Professor Volokh’s blog of a treaty obligation to ban handguns — would be void ab initio.
wls (fb8809) — 10/13/2007 @ 9:19 amNo more or less “consistent” than it would be to enact a constitutional amendment which, almost by definition, does something “unconstitutional” with respect to the Constitution as it existed prior. The only safe way to avoid this problem is not to join such treaties in the first place.
Xrlq (facab4) — 10/13/2007 @ 2:10 pmPeople are constantly confusing the consular treaty, interpreted by the Supreme Court in Sanchez-Llamas and by the ICJ in Avena, and the ICJ treaty. Under the ICJ treaty, we agreed to accept the results of the Avena case, at least with respect to the 41 cases addressed therein. Bush agreed that it furthered the foreign policy interests of the US to do so. (At the same time, he renounced the protocol in which the US agreed to the ICJ’s jurisdiction, which means that Sanchez-Llamas will be the law in the future.) The ICJ ordered the US to provide hearings whether the defendants were prejudiced by the lack of advice of their consular rights notwithstanding any purported procedural defaults. Waiving a procedural default is not unconsitutional, the ICJ had jurisdiction, therefore the Avena decision is binding law of the United States. In the decision under review, the Texas courts redecided the merits of Avena, they did not give it the full faith and credit it deserved. If Texas continues to refuse to apply Avena, then federal habeas is available. Remember that we are dealing with some extremely powerful federal concerns here — the US has the power to compromise judgments obtained in US courts in the interest of foreign policy (the Iran tribunal case) and the power to prevent municipalities from boycotting particular countries (the Massachusetts case) — as well as the Court’s decisions which limit challenges to arbitration (like Circuit City), of which the ICJ is a species, and decisions relating to forum non conveniens and the res judicata effect of foreign judgments. The position of Scalia (and probably Thomas and perhaps Kennedy) that there is no other source of US decisional law except the Court is undoubtedly extreme. There is no reason why Alito and Roberts could not join Ginsberg, Souter and Breyer in so holding.
Roger Friedman (aba8ba) — 10/15/2007 @ 7:01 amThe position of Scalia (and probably Thomas and perhaps Kennedy) that there is no other source of US decisional law except the Court is undoubtedly extreme.
Roger, please explain.
nk (6e4f93) — 10/15/2007 @ 7:19 amnk, it’s the decisional law doctrine. Gee.
Christoph (92b8f7) — 10/15/2007 @ 7:21 amnk — Scalia very early in the argument said that he was loathe to give up his authority under Article III to decide what US law is. Other bloggers have suggested this was directed at Kennedy. But it is well-established that decisions of foreign courts will be enforced in the US where the foreign court had jurisdiction and the parties could get due process. In a like manner, decisions of the courts of one state will be enforced in the courts of another. Otherwise custody battles and will contents would be even uglier than they already are, with one court constantly trumping another.
Roger Friedman (d613a0) — 10/15/2007 @ 6:27 pmRoger Friedman #36,
I’m glad you joined this discussion. I found your comment helpful but I don’t understand this statement:
Would you mind elaborating on it?
DRJ (67ced6) — 10/15/2007 @ 6:37 pmRoger #39, thank you. I do have more questions but DRJ is ahead of me and by anwering hers you might answer mine.
nk (6e4f93) — 10/15/2007 @ 6:53 pmdrj — Suppose you and I have been married and get a divorce in Nebraska. The decree specifies that I have to pay you $1000 per month alimony. I move to Ohio and stop paying you. You bring an action against me in Ohio to enforce the Nebraska decree. I don’t get to litigate in Ohio whether the Nebraska decree was fair and legal; because I got due process in Nebraska, the Ohio courts should simply enforce the decree without looking behind it to the underlying case. This is giving full faith and credit. Even if Ohio law prohibited alimony, the decree would have to be enforced because the matter had been litigated and decided. The same thing happens between countries, either as a matter of treaty or of comity (the respect courts show other courts).
Roger Friedman (7b90fd) — 10/16/2007 @ 5:40 amFair enough, Roger, but to carry your analogy to this case: The Nebraska decree was filed in the Ohio court and the Ohio court issued further orders for its enforcement in Ohio. It was not given to a sheriff in Ohio who went and “body attached” the delinquent ex or, even more closely, to the Governor of Ohio who directed an Ohio court to issue a body attachment. Further, the Nebraska court’s subject matter and personal jurisdiction can be challenged in the Ohio court.
We’ll see. I like WLS’s analysis.
nk (6e4f93) — 10/16/2007 @ 6:08 amnk — (1) As soon as you start talking about body attachment, you start talking about the 4th amendment and neutral detached magistrates and habeas corpus. This is why I initially said that waiving procedural default does not violate anybody’s constitutional rights. (2) I also noted initially that the ICJ had jurisdiction, which Texas does not deny. In my hypo, I assume that “we” got divorced in Nebraska, meaning that both parties had submitted to the personal and subject matter jurisdiction of the Nebraska court. (3) Of course we’ll see. But what I was responding to in WLS’s analysis was the idea that there was some need for a trick solution to avoid confronting the issue of presidential power. But if you look at my analysis, you will see that the president need not have said anything for the order to be enforced. If the president or congress had said something to the contrary, then you might have had to address the scope of their powers. That’s why I think Roberts and Alito can join Souter (whose position I have been parroting).
Roger Friedman (aba8ba) — 10/16/2007 @ 1:57 pmWhat is Souter’s position?
Christoph (92b8f7) — 10/16/2007 @ 2:02 pmRoger Friedman,
Thanks for your response. I should have been more specific. Why so you think this a full faith and credit issue? It seems like a federalism issue to me and that makes me wonder: Is it your position that it is the President’s memo that must be enforced or is the treaty itself enforceable in state courts?
DRJ (8b9d41) — 10/16/2007 @ 2:32 pmFound it.
Christoph (92b8f7) — 10/16/2007 @ 2:37 pmdrj —
Roger Friedman (7b90fd) — 10/17/2007 @ 10:54 amNo treaty is being enforced in the US courts. It is the decree of the ICJ in the Avena case that is being enforced. It is being enforced as US law pursuant to the ICJ treaty. In my hypo, it is not Nebraska divorce law that is being enforced in the Ohio court, it is the decree of the Nebraska court. The case was heard and decided in a proper jurisdiction (Nebraska, ICJ), and other jurisdictions (Ohio, Texas) should respect it and not try to re-judge the merits under anybody’s law (Nebraska/Ohio, international/Supreme Court). In other words, it should give the decree full faith and credit. Bush’s letter adds no force to what the ICJ treaty already required. If he had said that the US would not enforce the decree notwithstanding its treaty obligation, it might be a different story, the Court would at least have to address whether he had that power. The federalism issue is a phony — the Avena decision applies in Texas as much as the 1st Amendment or the federal drug laws — the hangup is that Texas refused to accept it as “new law” under its state habeas code. It is free to continue to do so, but if it does it can expect that the required hearing will be conducted in US District Court under federal habeas.