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MEDELLIN: TEXAS LAW TRUMPS PRESIDENT’S PEN

Houston Criminal Defense Attorney John T Floyd Discusses Medellin v.


Texas; United States Supreme Court Devastates Mexican National’s Rights
Under Geneva Convention While Simultaneously Limiting Presidential
Power

Jose Ernesto Medellin, a Mexican national, took part in one of the most
brutal and horrific crimes to have ever occurred in Harris County. A January
8, 2008 column on the John T. Floyd website outlined the facts of the June
24, 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth
Pena and Medellin’s role in those murders. There is no need to recount those
terrible details in this column.

The United States Supreme Court on March 25, 2008 rejected Medellin’s
claim that a decision by the International Court of Justice (“ICJ”), located in
the Hague, trumps Texas law and that the President of the United States had
the authority to impose that ICJ decision on the states. See: Medellin v.
Texas, 552 U.S. ______ (2008) [No. 06-984, Slip Opinion].

THE ICJ JUDGMENT

The ICJ is a tribunal established pursuant to the United Nations Charter to


adjudicate disputes between member nations. See: Medellin, supra, Slip
Opinion at 1.

In 2004 this tribunal issued a judgment in the Case Concerning Avena and
Other Mexican Nationals (Mexico v. U.S.) [“Avena”] that 51 named
Mexican nationals convicted in U.S. state courts were entitled to a review
and reconsideration of their convictions and sentences based on violations of
the Vienna Convention. Id. The ICJ added that its decision applied
regardless of whether these individuals had forfeited their Vienna
Convention claims by not raising them in a timely manner as required by
state law. Id.

The Avena judgment was based on a decision in 1969 by the United States,
upon the advice and consent of the U.S. Senate, to ratify the Vienna
Convention and the Optional Protocol Concerning the Compulsory
Settlement of Disputes to the Vienna Convention. Id., at 2. Article 36 of the
Convention provides that if an individual detained by a foreign country “so
requests, the competent authorities of the receiving State shall, without
delay, inform the consular post of the sending State” of such detention, and
“inform the [detained individual] of his righ[t]” to request assistance from
the consul of his own state. Id., at 3. The Optional Protocol provides any
disputes arising from either an interpretation or application of the Vienna
Convention shall be resolved by the ICJ. Id.

Jose Medellin was arrested at 4:00 a.m. on June 29, 1993. Sometime
between 5:54 and 7:23 a.m. Medellin was given his Miranda warnings. He
signed a written waiver and gave law enforcement authorities a detailed
confession. Law enforcement authorities did not inform Medellin of his
Vienna Convention right to notify the Mexican consulate of his detention.
Medellin did not raise this issue prior to trial or on direct appeal. Id., at 5.

The Vienna Convention claim was raised by Medellin in his first application
for post-conviction relief. The state trial court held that the issue had been
procedurally defaulted because Medellin did not raise it prior to trial or on
direct appeal. The trial court added that Medellin had failed to “show that
any non-notification of the Mexican authorities impacted on the validity of
his conviction or punishment.” Id. The Texas Court of Criminal Appeals
upheld that trial court finding. Id., at 5-6.

Medellin thereafter applied for habeas corpus relief in federal court. The
U.S. District Court on June 26, 2003 denied relief, finding that the Vienna
Convention claim was procedurally defaulted and that Medellin had failed to
demonstrate prejudice flowing from the Vienna Convention violation. Id., at
6.

Medellin sought a certificate of appealability from the Fifth Circuit Court of


Appeals. While that application was pending, the ICJ handed down the
Avena decision. The Fifth Circuit denied Medellin’s certificate of
appealability, holding that the Vienna Convention did not confer
individually enforceable rights. See: Medellin v. Dretke, 371 F.3d 270, 280
(5th Cir. 2004).

Medellin applied to the U.S. Supreme Court for certiorari review. The court
granted the certiorari application. See: Medellin v. Dretke, 544 U.S. 660,
661 (2005)(per curiam) [Medellin I]. Before the court could hear the case,
President George W. Bush on February 28, 2005 issued his Memorandum to
the United States Attorney, which stated:
“I have determined, pursuant to the authority vested in me as President by
the Constitution and the laws of the United States of America, that the
United States will discharge its international obligations under the decision
of the International Court of Justice in [Avena] by having State courts give
effect to the decision in accordance with general principles of comity in
cases filed by the 51 Mexican nationals addressed in that decision.”

The Supreme Court promptly dismissed Medellin’s certiorari application as


being “improvidently granted” and sent the case back to the state courts for
further proceedings. Id., 544 U.S. at 664.

Medellin launched a second round of post-conviction habeas proceedings in


the Texas courts. Both the trial court and the Texas Court of Criminal
Appeals rejected these applications as an “abuse of the writ.” The court of
criminal appeals was quite explicit in its finding that neither the Avena
decision nor the President’s Memorandum were “binding federal law” that
could supersede the state’s limitations on filing successive habeas corpus
applications. See: Ex parte Medellin, 223 S.W.3d 315, 352 (Tex.Crim.App.
2006).

Medellin sought, and was granted, certiorari review by the U.S. Supreme
Court last year. See: Medellin v. Dretke, 550 U.S. ____ (2007).

TREATY LAW INTERPRETATION

In 1998 the U.S. Supreme Court held that Vienna Convention claims are
subject to state procedural default rules. See: Breard v. Greene, 523 U.S.
371, 375 (1998)(per curiam). Breard was followed by yet another Supreme
Court decision that the kind of Vienna Convention claim decided in the
Avena decision did not trump state default rules requiring timely assertion of
statutory or constitutional issues. See: Sanchez-Llamas v. Oregon, 548 U.S.
331 (2006) [this decision, however, did not involve the individuals named in
the Avena judgment].

Medellin, nonetheless, pressed the argument that the Avena decision was a
“binding” obligation on state and federal courts in the United States. He
reasoned that “by virtue of the Supremacy Clause, the treaties requiring
compliance with the Avena judgment are already the Law of the Land by
which all state and federal courts in this country are bound. See: Medellin,
supra, Slip Opinion at 7-8. He urged the Supreme Court to accept “Avena
[as] a binding federal rule of decision that pre-empts contrary state
limitations on successive habeas petitions.” Id., at 8.

While the Supreme Court acknowledged that the Avena decision constitutes
an “international law obligation” by the United States, it pointed out that
some international law obligations do not “constitute binding federal law
enforceable in United States courts.” Id. The initial question the Court had to
confront, therefore, was whether the Avena decision had “automatic
domestic legal effect” which, by its own force, applied to state and federal
courts. Id.

The Court turned to the long recognized rule that there is a distinction
between treaties that automatically effect law and those that do not, standing
alone, function as binding federal law. This rule was first defined by Justice
Marshal in 1829 when he wrote that a treaty is “equivalent to an act of the
legislature” and, therefore, is “self-executing” when it “operates of itself
without the aid of any legislative provision.” Id. The Medellin court then
defined “self-executing” to as applying to a “treaty [that] has automatic
domestic effect as federal law upon ratification.” Id., at 9, FN 2. Conversely,
the court said, a “non-self-executing” treaty does not, standing alone, confer
domestically enforceable federal law. Id.

The Supreme Court began its analysis with serious reservations about
whether the ICJ even had authority to enforce the Avena decision under the
Optional Protocol. The Protocol provides only that disputes arising out of
the “interpretation or application” of the Vienna Convention “shall” lie
within the compulsory jurisdiction of the ICJ. “The Protocol says nothing
about the effect of an ICJ decision,” the Supreme Court noted, “and does not
itself commit signatories to comply with an ICJ judgment. The Protocol is
similarly silent as to any enforcement mechanism.” Id., at 11.

The only practical enforcement authority for an ICJ judgment can be found
in Article 94 of the United Nations Charter. This article attempts to persuade
member nations to “undertake to comply” with ICJ decisions. Briefly stated,
there is only a commitment to comply. The Medellin court noted that “the
Article is not a directive to domestic courts. It does not provide that the
United States ‘shall’ or ‘must’ comply with an ICJ decision, nor indicate that
the Senate that ratified the U.N. Charter intended to vest ICJ decisions with
immediate legal effect in domestic courts. Instead, ‘the words of Article 94
… call upon governments to take certain action.’ … In other words, the U.N.
Charter reads like ‘a compact between independent nations’ that ‘depends
for the enforcement of its provisions on the interest and the honor of the
governments which are parties to it.’” Id., at 12. [Internal Citations omitted].

ICJ decisions, therefore, must rely upon diplomatic remedies, not judicial
remedies, for enforcement in domestic courts. “This was the understanding
of the Executive Branch when the President agreed to the U.N. Charter and
the declaration accepting general compulsory ICJ jurisdiction” in 1945, the
Medellin court pointed out. Id., at 13. The court quoted Leo Paslovsky,
Special Assistant to the Secretary of State for International Organizations
and Security Affairs, who, in 1945, said: “’{W]hen the [ICJ] has rendered a
judgment and one of the parties refuses to accept it, then the dispute
becomes political rather than legal.’” Id., at 14.

The Supreme Court was compelled to find Medellin’s argument that ICJ
decisions are “automatically enforceable as domestic law” to be fatally
flawed under the very enforcement structure of Article 94. The court
emphasized that accepting Medellin’s argument “ … would eliminate the
option of non-compliance contemplated by Article 94(2), undermining the
ability of the political branches to determine whether and how to comply
with an ICJ judgment. Those sensitive foreign policy decisions would
instead be transferred to state and federal courts charged with applying an
ICJ judgment directly as domestic law.” Id., at 15.

Medellin’s argument was further undermined by the ICJ statute itself which
was adopted by the U.N. Charter. The primary purpose of the ICJ is to
“arbitrate particular disputes between national governments” – not
individuals. Article 59 of the ICJ statute explicitly provides that a “decision
of the [ICJ] has no binding force except between the parties and in respect of
that particular case.” Thus Medellin, as an individual, could not be a ‘party”
in the ICJ proceeding that produced the Avena decision. Id., at 15-16.

In a nutshell, the issue resolved in the Medellin case is that international


agreements which do not provide implementation procedures for ICJ
judgments cannot be enforced in domestic courts, because when “a treaty
does not provide a particular remedy, either expressly or implicitly, it is not
for the federal courts to impose one on the States through lawmaking on
their own.” Id., at 17. See also: Sanchez-Llamose, supra, 548 U.S. at 347.
Finally, there are 47 nations that are parties to the Optional Protocol and 171
nations that are parties to the Vienna Convention. Not one of these nations
treat ICJ judgments as binding on their domestic courts. Id., at 20.

PRESIDENT BUSH’S MEMORANDUM

The U.S. Government conceded before the Supreme Court that the Avena
decision did not by its own force supersede state procedural default rules.
The government, however, argued that the President’s Memorandum, and
the Executive authority behind it, were sufficient to “establish binding rules
of decision that preempt contrary state law.” Id., at 27.

Writing for the majority, Chief Justice John Roberts was not persuaded by
the government’s argument. He pointed out that the President’s authority to
act, as with the exercise of any constitutional power, “’must stem either from
an act of Congress or from the Constitution.’” Id., at 28 [internal citation
omitted]. Although admittedly “compelling,” the Chief Justice was not
convinced by the government’s argument that the President’s constitutional
role makes him uniquely qualified to “resolve the sensitive foreign policy
decisions that bear on compliance with ICJ decisions” and that the need to
demonstrate a “commitment to the role of international law” were sufficient
to allow the President to act independently in such international matters. Id.

The Chief Justice turned to Justice Jackson’s “tripartite scheme” as the


“accepted framework” for evaluating executive action in such matters:

• First, “[w]hen the President acts pursuant to an express or implied


authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress
can delegate.”
• Second, “[w]hen the President acts in absence of either a
congressional grant or denial of authority, he can only rely upon his
own independent powers, but there is a zone of twilight in which he
and Congress may have concurrent authority, or in which its
distribution is uncertain.” In this situation, the President’s authority
can drawn from “congressional inertia, indifference or quiescence.”
• Third, “[w]hen the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb,’
and the Court can sustain his actions “only by disabling the Congress
from acting upon the subject.”
Id., at 29. See also: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635-38 (1952).

Under this historical guidance, the Medellin court brushed aside the
government’s central argument that the relevant treaties created an
international obligation to comply with the Avena decision and that the
President had the authority to impose the decision on domestic law to
maintain its standing in the world community. The court stated:

“The President has an array of political and diplomatic means available to


enforce international obligations, but unilaterally converting a non-self-
executing treaty into a self-executing one is not among them. The
responsibility for transforming an international obligation arising from a
non-self-executing treaty into domestic law falls to Congress … As this
Court has explained, when treaty stipulations are ‘not self-executing they
can only be enforced pursuant to legislation to carry them into effect.’ …
Moreover, ‘[u]ntil such act shall be passed, the Court is not at liberty to
disregard the existing laws on the subject.’

“The requirement that Congress, rather than the President, implement a non-
self-executing treaty derives from the text of the Constitution, which divides
the treaty-making power between the President and the Senate. The
Constitution vests the President with the authority to ‘make’ a treaty. Art. II,
§2. If the Executive determines that a treaty should have domestic effect of
its own force, that determination may be implemented ‘in mak[ing]’ the
treaty, by ensuring that it contains language plainly providing for domestic
enforceability. If the treaty is to be self-executing in this respect, the Senate
must consent to the treaty by the requisite two-thirds vote, consistent with all
other constitutional restraints.” Id., at 30-31.

President George W. Bush has probably acted in a more unilateral fashion


than any president in American history – certainly in modern history. He has
issued secret, and non-secret, orders with only casual regard for the interests
of Congress. He has implemented executive policies with reckless abandon
in direct conflict with the traditional constitutional rule of law. The Bush
administration has authorized torture, secret prisons, kidnappings, and
assassinations in the President’s unilateral declaration of “war on terror.”
While Medellin will have a devastating impact on the 51 Mexican nationals
involved in the Avena decision, the decision at least restores some sanity to
the constitutional rule of law by reigning in President Bush’s unilateral
decision-making. The rule is the Congress makes laws while the President
executes them. For the past six years President Bush and his Neo-Con legal
advisers have operated under the reverse mindset – the President makes law
and Congress executes them. Four More Years? Thank Goodness NO!