Less than Zero?
American Journal of International Law, Vol. 102, p. 563, 2008
11 Pages Posted: 8 Jan 2009
Medellin v. Texas is the first case in which the Supreme Court has denied a treaty-based claim solely on the ground that the treaty relied upon was non-self-executing. In Foster v. Neilson, the only other case in which the Court had denied relief on this ground, the Court offered its view that the treaty was non-self-executing as an alternative ground for denying relief. The Court soon thereafter disavowed its conclusion that the treaty involved in Foster was non-self-executing, and, in the intervening years, it repeatedly declined invitations to deny relief on this or related grounds. Many observers thought that the Court would again skirt a ruling on non-self-execution in Medellin because the president had issued a memorandum ordering compliance with the judgment of the International Court of Justice (ICJ) in Avena. The Court in American Insurance Ass'n v. Garamendi had recently struck down a California law on the ground that it conflicted with a "policy" reflected in certain sole executive agreements. The President in Medellin seemed to be standing on stronger ground, as he was insisting that state law give way to an obligation imposed by a treaty that had received the consent of the Senate and was accordingly the supreme law of the land.
This article focuses on the Court's holding that President Bush exceeded his constitutional power when he required Texas to comply with the judgment of the ICJ in Avena. The majority's reasons for rejecting the president's action rest on its idiosyncratic and countertextual views about what it means for a treaty to be non-self-executing. As a result, the majority's analysis of the president's memorandum in Medellin tells us little about the president's power to displace state law to promote foreign policy interests unrelated to non-self-executing treaties. (The majority itself disclaimed broad implications for its presidential power holding by inserting a this-day-and-train-only footnote.) But the majority's analysis of the presidential power issue offers some basis for resolving some ambiguities in the Court's analysis of the self-execution issue: interpreting the majority's non-self-execution holding narrowly is the only way to avoid reducing the majority's presidential power analysis to absurdity.
Keywords: self-execution, treaties, Medellin
Suggested Citation: Suggested Citation