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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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The Medellín majority held that Article 94(1) of the Charter could not be self-executing, because the language “undertakes to comply” suggests that some additional action by the state is required in order to give effect to an ICJ judgment.81 Indeed, the Charter contemplates the possibility that a state will not comply with an ICJ judgment and provides for a political remedy in RICHARD F. GRIMMETT, CONG. RESEARCH SERV. S. PRT. 106–17, TREATIES


AND SENATe 6–7 (2001) [hereinafter CRS, TREATIES].

U.S. CONST. art II, § 2.

CRS, TREATIES, supra note 75, at 7–12.

See 140 CONG. REC. S7634 (1994) (recording reservations to the Convention on the Elimination of all forms of Racial Discrimination); 138 CONG. REC. 8068 (1992) (recording the Senate’s reservations, declarations, and understanding relevant to the International Covenant on Civil and Political Rights); 136 CONG. REc. 36192 (1990) (recording Senate reservations to the U.N. Convention against Torture); 132 CONG. REC. 2326 (1986) (recording Senate reservations to the Genocide Convention).

See Hathaway et al., International Law, supra note 54, at 99–100 (acknowledging criticisms of presidential signing statements, but contending that presidential statements in connection with transmittal of treaty ratifications might require different treatment).

Id. at 527–28.

Medellín v. Texas, 552 U.S. 491, 508 (2008).

20 [MAY 2013] Article 94(2) through recourse to the U.N. Security Council.82 Finding that neither the U.N. Charter nor the VCCR provided a ground for treating the ICJ’s Avena decision as a rule of decision binding on the Texas courts, the Medellín majority affirmed the judgment of the Texas Court of Criminal Appeals,83 and Texas proceeded with the execution.84 At least with respect to non-self-executing treaties, the United States is thus returned to the condition it was in during the Critical Period. The federal government has taken on a treaty obligation with which it cannot comply because the states refuse to recognize that obligations of the United States are also obligations of the several states. Ironically, the self-proclaimed originalist Justices joined the majority and embraced an interpretation of the Supremacy Clause clearly at odds with the Framers’ understanding of that clause.85 The Medellín opinion leaves room for considerable uncertainty as to what consequences derive from a determination that a treaty is non-self-executing. As Duncan Hollis points out, calling a treaty non-self-executing may mean that: (1) private litigants cannot rely on it as a source legally cognizable rights; (2) such rights are not justiciable in any domestic court; or (3) that non-self-executing treaties do not have any force as domestic law.86 The Court also inserted in a footnote a rather troublesome bit of dicta, announcing its endorsement of a presumption that even self-executing treaties do not give rise to a private right of action,87 thus reversing a Id. at 509–11.

Id. at 532.

James C. McKinley, Jr., Texas Executes Mexican Despite Objections, N.Y.

TIMES (Aug. 6, 2008).

See D.A. Jeremy Telman, Medellín and Originalism, 68 MD L. REV. 377 (2009) (contending that the majority’s ruling in Medellín cannot be reconciled with the types of originalism embraced by Justices Scalia and Thomas).

See Duncan B. Hollis, Treaties—A Cinderella Story, 102 PROC. AM. SOC’Y INT’L L. 1, 2 (2008); see also Bradley, supra note 66, at 548 (“The opinion leaves unclear... whether a non-self-executing treaty is simply judicially unenforceable, or whether it more broadly lacks the status of domestic law.”).

See Medellín v. Texas, 552 U.S. 491, 506 n.3 (2008) (“Even when treaties are self-executing in the sense that they create federal law, the background Monist Supremacy Clause 21 presumption that had long been part of U.S. law that self-executing treaties that created private rights also created a means of vindicating those rights.88 Recent research suggests that lower courts are interpreting Medellín to further reduce the domestic enforceability of international agreements, applying dicta from Medellín to prevent individual litigants from relying on treaties that were clearly intended to protect their rights.89 C. Continued Tension Between Constitutional Design and Constitutional Practice The Medellín Court’s solution does not resolve the continuing tensions in the U.S. constitutional design regarding treaties. On the contrary, it revives tensions sounding in federalism that had been put to rest in the Early Republic and exacerbates tensions sounding in separation of powers. However, while the decision likely precludes the development of a satisfying legal theory that reconciles the Supremacy Clause with U.S. constitutional design and history, there are political remedies that can push legal uncertainties into the background.

1. The Revival of Federalism Concerns Medellín revives the tensions between the Supremacy Clause and the principle of federalism that had lain dormant since the early nineteenth century. The issue in Medellín was whether Texas could execute a murderer without granting him the review and reconsideration that even the Medellín Court acknowledged was required as a matter of international law.90 Although the Supremacy Clause states that courts must enforce treaty law notwithstanding state law to the contrary, the Medellín majority presumption is that international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.”).

Hathaway et al., International Law, supra note 54, at 53.

Id. at 70–76.

Medellín, 552 U.S. at 504 (“No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States.”).

22 [MAY 2013] effectively limited the efficacy of the Supremacy Clause to selfexecuting treaties, a category that it defined in a way that would rule out treating almost all treaties then in existence as selfexecuting.

This aspect of the Medellín decision raises the specter of a new dualism, akin to that which plagued the country during the Critical Period. Medellín is only the most recent case in which the Supreme Court effectively threw up its hands and declared itself incapable of requiring the states to comply with obligations of the United States arising under the VCCR.91 It is now clear that, notwithstanding the Supremacy Clause, courts are not in fact empowered to enforce treaties in the face of contrary state law.

Seen in this light, Medellín effects a partial reversal to the nineteenth-century resolution of the tension between treaty supremacy and federalism. Where federal treaty law once prevailed over contrary state law, state law now prevails over a treaty unless it is expressly self-executing (and very few are) or is implemented by Congress. Because the Supremacy Clause clearly provides that congressional enactments supersede state law, the holding almost completely eliminates the efficacy of the Supremacy Clause’s reference to treaties.

2. Persistent Separation of Powers Concerns The Medellín majority effectively masked the unprecedented federalism consequences of its decision by treating the case as posing separation of powers issues. The Court reasoned that the power to implement non-self-executing treaties resides exclusively with Congress.92 The Court refused to construe as acquiescence Congress’s failure to either act or to object to the President’s memorandum directing states to comply with the ICJ’s Avena See LaGrand v. Stewart, 525 U.S. 971 (1998) (denying habeas petition of two German nationals challenging their convictions and sentences on the ground that their VCCR rights had been violated); Breard v. Greene, 523 U.S. 371 (1998) (denying habeas petition of Paraguayan national subject to death penalty while Paraguay pursued a claim in the ICJ against the United States for violating Breard’s VCCR rights).

Medellín, 552 U.S. at 527.

Monist Supremacy Clause 23 decision.93 This part of the decision seems like a resolution of the tension between the separation of powers doctrine and the Supremacy Clause by subordinating the constitutional text to the structural principle. But Medellín does not do that either.

James Madison and other Framers recognized that, in order to reconcile the principle of treaty supremacy with the separation of powers, certain treaties could not be effective as domestic law without congressional implementation. Madison suggested that the category of such non-self-executing treaties might encompass all treaties containing subject matter that overlaps with Congress’s powers enumerated in Article I, Section 8 of the Constitution. The Medellín majority articulates no such principled delineation of which treaties require congressional implementation. Whether or not the President, with the approval of two-thirds of the Senate can make domestic law through a treaty turns, for the Medellín majority, on whether or not they state an intention that the treaty be self-executing as domestic law.

Neither the Court nor subsequent commentators have identified a principled reason for giving the President and the Senate such unilateral power to override the House of Representative’s legislative powers. Nor does the Court identify any constitutional reason why a treaty provision, like U.N. Charter’s Article 94(1), requires congressional implementation. That is, the Court identifies no provision of the U.S. Constitution’s Article I, which enumerates legislative powers, that indicates that only Congress is empowered to enact legislation necessary to bring the United States into compliance with the judgments of international tribunals.

Worse still, although the Court’s opinion is not a model of clarity on the point,94 the Court suggests that a statement by either the President or the Senate, or even by other parties to the treaty, before or after ratification may suffice to make a treaty selfId. at 528 & n.14.

See Bradley, supra note 66, at 544 (acknowledging that the opinion is “somewhat unclear” about whose intent a court should consult in determining whether a treaty is self-executing).

24 [MAY 2013] executing.95 Thus, for example, the President could state his understanding that a treaty would be self-executing after receiving the Senate’s advice and consent and without communicating that understanding to the Senate in advance of its consideration of the treaty. Similarly, the Senate could make a treaty self-executing by stating its intention to do so during its treaty deliberations.

Following Medellín, such a statement could be effective if the President is silent on the subject of self-execution.

3. Political Solutions While the specter of an untenable international law dualism haunts the U.S. legal order, political mechanisms exist that can minimize the consequences of the current law’s incoherence. In the space remaining, this Article addresses three such political options.

First and perhaps most importantly, the political branches frequently bypass the rather onerous Article II requirements of advice and consent by two-thirds of the Senate, choosing instead to commit the United States to international agreements through executive-legislative agreements or through sole executive agreements.96 In recent decades, nearly ninety percent of the United States’ international obligations have arisen through mechanisms other than Article II treaties.97 Executive-legislative agreements require the approval of simple majorities in both Houses of Congress; that is, they are international agreements that are made binding as domestic law through the same process that applies to federal statutes.98 Sole executive agreements are mostly See id. (noting that the Medellín majority found its determination confirmed by the post-ratification understandings of other treaty parties).

Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236, 1238 (2008) [hereinafter Hathaway, Treaties End] (noting that the United States makes binding international agreements through two separate processes, one of which is laid out in the Constitution and one that is not).

Id. at 1258 tbl.1, 1260 tbl.2 (listing by category 375 treaties and 2744 congressional-executive agreements entered into by the United States between 1980 and 2000).

CRS, TREATIES, supra note 75, at 5.

Monist Supremacy Clause 25 used to bind the United States in its foreign relations and rarely have domestic consequences. They bind the United States without any congressional participation. 99 Under current law, there is no principled reasoning that determines when our government enters into international obligations through one method or the other.100 Oona Hathaway has argued that the United States could jettison entirely the cumbersome and constitutionally problematic treaty mechanism.

Because they accord with our constitutional legislative processes, executive-legislative agreements have greater normative legitimacy and are more likely to achieve adherence.101 The use of executive-legislative agreements eliminates any separation of powers concerns because Congress implements the agreement as soon as it is entered into. There are no federalism concerns with respect to such international agreements because there is no controversy regarding the supremacy of congressional enactments over state law.

Most sole executive agreements do not raise federalism issues.

Courts have for the most part recognized their supremacy over state law pursuant to the Presidents foreign affairs powers.102 See Dames & Moore v. Regan, 453 U.S. 654, 682 (1981) (taking note of congressional acquiescence in the practice of sole executive agreements and also of court precedent recognizing “that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate”).

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