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«A Monist Supremacy Clause and a Dualistic Supreme Court: The Status of Treaty Law as U.S. Law D. A. Jeremy Telman Valparaiso University School of ...»

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Monist Supremacy Clause 13 timely conclusion.42 Nonetheless, Gallatin still insisted on the importance of the House’s role in treaty implementation.43 These debates arose anew when President James Madison called upon Congress to implement provisions of the Treaty of Ghent, which ended the War of 1812 and which Madison ratified in December 1815.44 After lengthy debates in both Houses of Congress, the House and the Senate agreed on a compromise that left basic constitutional controversies unresolved but recognized two general principles that informed future treatments of the status of treaties as domestic law. First, Congress developed the last-intime rule, according to which treaties could trump prior legislative enactments but Congress could also override a treaty through a legislative act.45 Second, Congress recognized that, while some treaties could have direct effect as domestic law and thus were self-executing, others required implementing legislation.46 A. The Doctrine of Non-Self-Execution As discussed above, the Supremacy Clause and its legislative history suggest that the Framers intended for treaties to have direct effect as domestic law. Evidence from the first decades of U.S.

history enhances the sense that the Framers and their contemporaries assumed that treaties would be given direct effect as domestic law. In the first case in which it weighed in on the issue, Ware v. Hylton, the U.S. Supreme Court recognized the right of a British creditor to seek relief in a U.S. court under the 1783 Although Jefferson at first insisted that a constitutional amendment was necessary before the President could double the size of the United States through a treaty, he ultimately bowed to expediency and advised Gallatin that the less said about the legal basis for the treaty, the better. Matthew S. Warshauer, Constitution of the United States, in THE LOUISIANA PURCHASE: A HISTORICAL AND GEOGRAPHICAL ENCYCLOPEDIA 83, 84 (Junius P. Rodriguez ed., 2002) Parry, supra note 22, at 1294.

Id. at 1304–16.

The U.S. Supreme Court recognized this doctrine in Whitney v. Robertson, 124 U.S. 190, 195 (1888) and Chae Chan Ping v. United States (The Chinese Exclusion Cases), 130 U.S. 581, 600 (1889).

Parry, supra note 22, at 1316.

14 [MAY 2013] peace treaty that ended the Revolutionary War.47 Ware may well have put to rest federalist challenges to the efficacy of the Supremacy Clause,48 but it did not resolve separation of powers questions relating to categories of treaties that called for congressional implementation.

Confronted with this constitutional conundrum in 1829, Chief Justice John Marshall determined that treaties intended to have domestic effect cannot do so without some sort of legislative intervention: “[W]hen the parties engaged to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.”49 Marshall thus articulated what eventually became known as the doctrine of self-execution.50 A self-executing treaty is one that has “automatic domestic effect as federal law upon ratification.”51 Generally speaking, if a treaty is self-executing it creates a domestic legal obligation without the need for a congressional enactment.

For much of U.S. constitutional history, treaties were largely assumed to be self-executing, and treaties that created private rights were assumed to give individuals standing to sue to vindicate those rights. Justice Marshall himself embraced this notion as early as 1809, when he noted that treaties “stipulate something respecting the citizens of the two nations, and gives them rights.” Marshall regarded it as a duty of courts to protect such treaty rights against all contrary laws and judicial decisions of 3 U.S. (3 Dall). 199, 239 (1796).

Throughout the nineteenth century, the U.S. Supreme Court continued to embrace the doctrine of treaty supremacy over state law that it adopted in Ware.

Duncan B. Hollis, Treaties in the Supreme Court, 1861–1900, in,


55, 56 (Sloss et al. eds., 2011) [hereinafter Hollis, Treaties in the Supreme Court].

Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (explaining that nonself-executing treaty provisions “can only be enforced pursuant to legislation” and that such legislation is subject to congressional modification and repeal).

Medellín v. Texas, 552 U.S. 491 at 502 n.2 (2008).

Monist Supremacy Clause 15 states.52 So the doctrine remained throughout the nineteenth century. As Justice Miller put it in 1884, A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.53 However, this presumption in favor of the applicability of treaties as domestic law was largely theoretical as, before World War II, the United States was a party to very few treaties that created private rights.54 In the second half of the twentieth century, when the United States’ treaties obligations exponentially increased, courts became more skeptical of the presumption in favor of selfexecution and they de-coupled the finding that a treaty was selfexecuting from a finding that it gave rise to a private right of action.55 B. The U.S. Supreme Court’s Decision in Medellín v. Texas In Medellín, the U.S. Supreme Court provided a method for establishing when treaties are to be treated as self-executing.

Medellín was a Mexican national who was on death row in Texas, having been convicted on murder charges.56 Medellín brought a habeas challenge to his conviction and sentence, contending that he had been denied his rights of consular access and consultation in violation of the Vienna Convention on Consular Relations Owings v. Norwood’s Lessee, 9 U.S. 344, 348 (1809).

Head Money Cases, 112 U.S. 580, 598–99 (1884); see also Hollis, Treaties in the Supreme Court, supra note 48, at 66–67 (noting that the Supreme Court “regularly applied treaties as law for individuals,” allowing them to invoke treaties directly and to affording them both rights and remedies).

Oona A. Hathaway, Sabria McElroy & Sara Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, 37 YALE J. INT’L L. 51, 53 (2012) [hereinafter Hathaway et al., International Law].

Id. at 63–68.

Medellín, 552 U.S. at 501.

16 [MAY 2013] (VCCR).57 In Avena and Other Mexican Nationals (Avena),58 the International Court of Justice (ICJ) had found that the United States had violated its international obligations under the VCCR with respect to certain Mexican nationals in criminal custody in the United States.59 The ICJ ordered the United States to provide “review and reconsideration” of each challenged conviction and sentence to determine whether the Mexican nationals, including Medellín, had been prejudiced by the violation of their rights of consular consultation.60 Although the United States disagreed with the Avena decision, President Bush issued a memorandum to the Attorney General, stating that the United States would comply with the Avena judgment by directing state courts to implement that judgment.61 In Medellín’s case, the Texas criminal courts refused to do so. The Texas Court of Criminal Appeals dismissed Medellín’s post-Avena habeas petition as an abuse of the writ. The Texas court did not view either the Avena decision or the President’s Memorandum as capable of displacing state limitations on the filing of successive habeas applications.62 In Medellín, the U.S. Supreme Court agreed. In a decision written by Chief Justice Roberts, the Court concluded that “neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions.”63 As the Medellín majority put it, while treaties “may comprise international commitments...

they are not domestic law unless Congress has either enacted See Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. no. 6820 (providing that foreign nationals in penal custody must be permitted to communicate with representatives of their consulate).

Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar.


Id. at 53–55.

Id. at 72.

Memorandum from President George W. Bush to Alberto R. Gonzales, U.S.

Att’y Gen. (Feb. 28, 2005).

Ex parte Medellín, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006).

Medellín v. Texas, 552 U.S. 491, 498–99 (2008).

Monist Supremacy Clause 17 implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.”64 There was no implementing legislation for either the VCCR or the U.N.

Charter provision calling on member states to comply with decisions of the ICJ. Therefore, in order for the ICJ’s decision in Avena to bind the state courts that were to provide the review and reconsideration called for in Avena, the U.S. Supreme Court reasoned, the decision would have to bind the United States with the sort of direct effect derived from a self-executing treaty.

The only treaty that came into question as potentially selfexecuting was the U.N. Charter, Article 94(1) of which provides that member states are to “undertake to comply” with the decision of the ICJ.65 In order to determine whether or not Article 94(1) was self-executing, the Medellín majority had to specify the nature of the inquiry used to determine when treaties are to be treated as self-executing. Its effort to do so was not entirely successful.

Prior to Medellín, lower courts had largely relied on a multifactor balancing analysis to determine whether or not a treaty should be given domestic effect.66 The Medellín majority rejected the position of the Restatement (Third) of The Foreign Relations Law of the United States, which favored a presumption in favor of treating treaties as self-executing.67 Rather, the Medellín majority held that a treaty is self-executing only if it “contains stipulations which are self-executing, that is, that require no legislation to make them operative.”68 The Court thus subtly changed Justice Marshall’s rule that, consistent with the Supremacy Clause, rejected a presumption against self-execution.69 The rule laid Id. at 505 (citing Igartua–De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc)).

Charter of the United Nations art. 94(1), June 26, 1945, 59 Stat. 1031, TS No. 993, 3 Bevans 1153.

See Curtis A. Bradley, Intent, Presumptions and Non-Self-Executing Treaties, 102 AM. J. INT’L L. 540, 540 (2008).


STATES § 111, Reporter’s Note 5 (1987).

Medellín, 552 U.S. at 505–06 (citing Whitney v. Robertson, 124 U.S. 190, 194 (1888)).

Vázquez, Treaties as Law, supra note 11, at 629.

18 [MAY 2013] down in United States v. Percheman was that treaties would be treated as self-executing unless the treaty itself “stipulat[es] for some future legislative act.”70 The Medellín majority invented a requirement that there be some language, either in the treaty itself or provided by the President or the Senate, indicating selfexecution if a treaty is to be directly effective as domestic law. The Medellín dissent faults the Medellín majority for looking for “the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).”71 The majority accepts this characterization of its approach. 72 The majority’s textual approach has a certain common sense appeal. It seems reasonable to expect that, if the parties to a treaty expected that instrument to be self-executing, they would so state.

However, as the Medellín dissent pointed out, the majority named no treaty that contains express language specifying that it is to be self-executing. That is not surprising because international agreements generally do not reference the mechanics of domestic implementation beyond the occasional statement of an expectation that parties will take whatever steps are necessary to incorporate treaty obligations into domestic law.73 But the majority did not require such an express statement, as it repeatedly indicated that either the President or the Senate could at any point during the ratification process, express intent to have a treaty be selfexecuting: “Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.” 74 In order to make sense of this approach to treaty interpretation, we need to review the way the United States takes on treaty obligations. Treaty ratification is a three-step process in the United States. First, a representative of the executive branch signs the United States v. Percheman, 32 U.S. (7 Pet.) 51, 89 (1833).

Medellín v. Texas, 552 U.S. 491, 562 (2008) (Breyer, J., dissenting).

Id. at 514.

Id. at 547–48 (Breyer, J., dissenting).

Id. at 521.

Monist Supremacy Clause 19 treaty.75 Next, the Senate provides its advice and consent,76 and at that time the Senate may attach reservations, understandings, and declarations.77 For example, in providing advice and consent to various human rights instruments, the Senate has attached declarations that the substantive provisions of such treaties are non-self-executing.78 Finally, the executive ratifies the treaty, and in so doing the President may make some statement about the domestic status of the instrument, although the constitutional status of such a statement is indeterminate, and Medellín did not make it any less so.79 After all, the Medellín majority did not think the President’s Memorandum directing states to implement the Avena decision was sufficient to render a treaty self-executing.80 A presidential statement made in connection with the deposit of an instrument of ratification should not be entitled to any different treatment.

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