States win over President on criminal law issue
UPDATED 1:49 p.m.
The Supreme Court, in a sweeping rejection of claims of power in the presidency, ruled 6-3 on Tuesday that the President does not have the authority to order states to relax their criminal procedures to obey a ruling of the World Court. The decision came in the case of Medellin v. Texas (06-984). Neither a World Court decision requiring U.S. states to provide new review of criminal cases involving foreign nationals, nor a memo by President Bush seeking to enforce the World Court ruling, preempts state law restrictions on challenges to convictions, the Court said in a ruling written by Chief Justice John G. Roberts, Jr.
The Court explicitly, and with emphasis, rejected a presidential argument that the nation’s Chief Executive has power, on his own, to make an international treaty into binding law inside the U.S. That can only be done by Congress, it stressed.
The decision, aside from its rebuff of presidential power, also treats the World Court ruling itself as not binding on U.S. states, when it contradicts those states’ criminal procedure rules. The international treaty at issue in this dispute — the Vienna Convention that gives foreign nationals accused of crime a right to meet with diplomats from their home country — is not enforceable as a matter of U.S. law, the Roberts opinion said. And the World Court ruling seeking to implement that treaty inside the U.S. is also not binding, and does not gain added legal effect merely because the President sought to tell the states to abide by the decision, the Court added.
The ruling also is a defeat for 51 Mexican nationals who won a World Court decision in 2004, finding that U.S. states had denied them their consular access rights and advising the U.S. government to take steps to enforce the ruling. None of the 51 had been given access to a consular officer while their cases proceeded. In the specific case, Mexican national Jose Ernesto Medellin, convicted in state courts of murder, had sought to rely on the Vienna Convention. Texas courts ruled that he had defaulted on that right by failing to raise the issue at his trial. He then pursued a habeas challenge, arguing that the World Court decision and the Bush memo overrode the state default rule.
The Bush Administration did not agree with the World Court ruling, and, in fact, withdrew from the international protocol that gave the World Court the authority to enforce the Vienna Convention against countries that had signed it. Even so, Bush issued a memo in February 2005 agreeing that the U.S. would seek to obey the World Court, and he told the states involved to “give effect” to that tribunal’s decision in the cases of the 51 Mexicans involved in the World Court case. The U.S. government stepped into the case in Texas courts to assert the authority of the President to lay upon the states a duty follow his mandate to obey the World Court. The case thus reached the Supreme Court as a major test of presidential authority, in seeking to enforce treaty obligations, to override contradictory state criminal procedure rules. In that test, the presidency clearly lost.
The Chief Justice’s opinion was supported in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Justice John Paul Stevens supported the result only. Stevens said that he found the issue to be a closer one than the Roberts opinion allowed, but said that he was persuaded “in the end” that the treaty did not authorize the Supreme Court to enforce the World Court’s ruling.
Justice Stephen G. Breyer dissented, joined by Justices Ruth Bader Ginsburg and David H. Souter.
In rejecting the Mexican nationals’ reliance on the World Court’s decision, the Chief Justice wrote that the ruling did impose “an international obligation on the part of the United States.” But that did not automatically give it legal effect “such that the judgment of its own force applies in state and federal courts.” The Court said that the legal effect of a World Court decision is controlled by Article 94 of the United Nations Charter, which means, the Court went on, that the U.S. and other member countries that submitted to World Court jurisdiction on a given dispute assume “a commitment…to take further action through their political branches to comply.” Thus, it added, Article 94 “is not a directive to domestic courts. It does not provide that the United States ’shall’ or ‘must’ comply” with such a ruling. Enforcement depends, it said, upon a diplomatic, not a judicial, remedy — that is, a political, not a legal, enforcement mechanism. The Court went on to say that this mechanism should not be turned over to state and federal courts in place of the political branches of the government.
“Our Framers established a careful set of procedures that must be followed before federal law can be created under the Constitution — vesting that decision in the political branches, subject to checks and balances,” Roberts wrote. To turn over to the judiciary the task of deciding when a treaty becomes domestic law, the Chief Justice added, would be to give the courts “the power not only to interpret but also to create the law.”
Turning to the question of the President’s authority to make the World Court decision binding domestically, the Court said that the Chief Executive’s power to act, as with the exercise of any governmental power, must stem either from an act of Congress or from the Constitution itself.” It found no such authorization, rejecting claims that the Vienna Convention itself gives the President authority to implement the World Court ruling finding a U.S. violation, that Congress has acquiesced in that authority, that the President on his own has power to resolve international disputes apart from treaty enforcement, and that presidential power of that kind at issue is given by the Constitution’s allocation of power in the President to make sure that laws are “faithfully executed.”
Having found that the Vienna Convention is the kind of treaty that can only be executed in the U.S. if Congress expressly agrees to that, the Court said that the President may not do that on his own, or under some his interpretation of a treaty like the Vienna Convention. There is no congressional legislation to turn that Convention into domestic law, the Court found. If the President were to seek to unilaterally create domestic law, when a treaty ratified by the Senate was not a self-executing pact, that would contradict the Senate’s action of ratifying the treaty with the understanding it was not being made into domestic law. In that situation, the President’s power would be “at its lowest ebb,” quoting the famous formula laid out by Justice Robert Jackson in the Steel Seizure case in 1952 (Youngstown Sheet & Tube v. Sawyer).
Quoting Founding Parent James Madison, saying that the President “in whom the whole executive power resides cannot of himself make a law,” the Chief Justice commented that that would “seem an apt description” of President Bush’s claim that he could unilaterally turn the Vienna Convention into domestic law.
Examining the government claim that Congress had, in fact, acquiesced in turning the World Court decision into domestic law, the Chief Justice found that none of the instances cited “remotely involved transforming an international obligation into domestic law and thereby displacing state law.”
The opinion stressed that the President could opt to comply with a treaty’s obligation “by some other means, so long as they are consistent with the Constitution.”
Refuting the government claim that the President’s February 2005 memorandum was a sufficient basis for implementing domestically the World Court ruling, the Chief Justice wrote: “The government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state cours, much less one that reaches deep into he heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws.”
Is it just me, or was Breyer’s dissent clearly written by a clerk?
Comment by Mortez Jackson — March 25, 2008 @ 10:33 am
I find it interesting that it was the “conservative” Justices rejecting a claim of executive power.
Comment by James N. Markels — March 25, 2008 @ 10:55 am
How much of a rejection was it? See footnote 13 of CJ Roberts’ majority opinion.
Comment by Jacques McKenzie — March 25, 2008 @ 11:07 am
The critical question now is: how will other countries treat Americans overseas, when there is an allegation of a crime against an American, will Americans now no longer have a right to speak with someone from their embassy, or have no way to redress this deficiency?
Gilmore Harris
Comment by Gilmore Harris — March 25, 2008 @ 11:44 am
Jacques. I think so. The majority position in footnote 13 totally ignores that the president is not making new federal law as the treaty has already been approved by congress. In foot not five the majority claims:
“Rather, the “undertakes to comply” language confirms that
further action to give effect to an ICJ judgment was contemplated,
contrary to the dissent’s position that such judgments constitute
directly enforceable federal law, without more.”
That is, uh, to put it mildly…strained. It is hardly natural as Stevens contends (what the heck did he trade his vote for???). Undertake means to “do” or to “obligate”. The court holding is that undertakes means exactly the opposite of its plain meaning.
Comment by Daniel Thomas — March 25, 2008 @ 12:13 pm
I agree that the basis for the result is strained. But finding the treaty not self-executing is how you get there. Given that, footnote 13 leaves the door open for Executive acts to strike down state law in factually different cases. That’s not much of a rejection at all.
Comment by Jacques McKenzie — March 25, 2008 @ 12:17 pm
Jacques. I am not sure that I agree with you on either point. There were other ways to get to the same result that I think more sound. I think this opinion severely limits executive power. “An agreement to abide by the result of an international adjudication can be a treaty obligation like
any other, so long as the agreement is consistent with the Constitution.”
The problem with this statement is that this is not the way international politics work. That may be true domestically, but how comfortable would you feel as a foreign power making a treaty only to find out years later that what you thought you had agreed to was, in fact, a violation of the other parties constitution. For a contract to bind, it must be met with full faith and credit by other parties. I can assure you that if I were a foreign power I would be far more hesitant to agree with the US on a treaty regarding anything, given the fact that years later it could be overturned. This is especially true given that it was overturned on so flimsy a reason. So while I would agree that this opinion does not directly limit the power of the president beyond this one case, I believe its practical effect will be lessen the trust that other countries place in the president treaty-making powers and that indirectly limits his power.
Comment by Daniel Thomas — March 25, 2008 @ 1:05 pm
I doubt Stevens traded his vote for anything. Roberts already had 5 votes so why would the conservatives need Stevens’ vote? Stevens had no leverage here. Nothing to offer.
Also, if you look at the remaining cases and the opinons thus far, it’s clear that the conservatives won Williams as well with either Scalia or Alito writing and as far as Boumedienne, it’s either Kennedy, Ginsburg or Souter with Kennedy by far the most likely author. If it is Kennedy, there’s a good chance the conservatives won that one as well as Stevens would have written it if the liberals had won.
When you add in the arguments in Baze, Crawford and Heller, it looks like another good term for the conservatives all around.
Comment by rufus peckham — March 25, 2008 @ 1:20 pm
I am confused as to where Justice Roberts is coming from in the quotation at the end of this post. Where does the Constitutional provision that “…all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby” come into play?
Comment by Andrew Bennett — March 25, 2008 @ 1:21 pm
Another death penalty charade.
There are many people who believe that the death penalty is morally wrong. Some of them are Supreme Court Justices. Most of the leaders of the civilized world is also in this camp.
These Justices who will never vote for anything that will further the application of capital punishment. And legal advocates will look to find and use any barrier to putting a prisoner to death — that’s their solemn promise to themselves.
So that’s what we’re seeing here. The ICJ (speaking for the civilized world) wants to force the U.S. to ban the death penalty, or at least to prevent anyone from being executed. The dissenters attach their unspoken views to the procedural arguments to further their cause. These tactics often are successful, and will continue to be used until all avenues are extinguished for each condemned man or woman.
But the majority of the Court has their own tactics. (They happen to reflect the majority of the country and the congress, but this is really irrelevant.) The majority has fashioned an interpretation of the treaties that serves their purpose — not to let the world dictate to us on a matter of morality.
Unfortunately, both sides in this long-standing charade — by using any tactic (actor, law, constitutional interpretation, treaty, etc.) to serve their desired end — are harming those actors, laws, treaties, and indeed the Constituion itself by distorting them beyond recognition. The result is an even more fetid swamp without any clarity of argument, much less any resolution of a likely-unresolvable (and in the end, political) issue.
What’s said and written by both sides in capital cases is hardly ever the real argument.
Comment by Tom Barnard — March 25, 2008 @ 1:33 pm
“I doubt Stevens traded his vote for anything. Roberts already had 5 votes so why would the conservatives need Stevens’ vote? Stevens had no leverage here. Nothing to offer.”
Not true at all. 6-3 always looks better than 5-4; especially given Roberts attempts to make the court look more united. Of course, that doesn’t mean he did trade his vote. But given that this is not a very Stevens-like opinion I do wonder.
Comment by Daniel Thomas — March 25, 2008 @ 1:44 pm
But Stevens only concurred in the judgement, he didn’t join in the opinion. So as far as the holding is concerned, there’s only 5 votes. Stevens’ vote is meaningless. It didn’t affect the case at all. The result would have been the same if he recused himself. And if Kennedy had given the liberals a 4th vote, I can guarantee Stevens would have given them a 5th. I don’t know why Stevens concurred but it had nothing to do with voet trading.
Also, this case was decided in the 1st sitting back in October so there weren’t really any other cases outstanding for him to bargain over. Do you really think he told Kennedy “I’ll concur here if you go with me in a couple months on Boumedienne”? That doesn’t really fly.
Comment by rufus peckham — March 25, 2008 @ 2:07 pm
That may be true domestically, but how comfortable would you feel as a foreign power making a treaty only to find out years later that what you thought you had agreed to was, in fact, a violation of the other parties constitution.
Except that is exactly how international politics work.
Comment by Jacques McKenzie — March 25, 2008 @ 2:42 pm
Because the only thing better than agreement between two branches of government that we don’t need to signal to our allies and other interlocutors that we’ll honor treaty obligations is agreement between ALL THREE branches of government that treaty obligations don’t mean shit to the US.
Comment by Daniel Weir — March 25, 2008 @ 3:11 pm
That may be true domestically, but how comfortable would you feel as a foreign power making a treaty only to find out years later that what you thought you had agreed to was, in fact, a violation of the other parties constitution.
There’s an easy way around that: figure out what their Constitution allows, and stick to that.
Of course, that requires having an honest Supreme Court that acknowledges a written Constitution, rather than making up a “Living” one.
Comment by Greg Davidson — March 25, 2008 @ 3:38 pm
In a way, isn’t this a slightly pro-political branch decision as well? The Court limits its own ability to enforce ICJ decisions, and says that Congress must act explicitly to execute the ICJ related treaties with specific legislation, and basically leaves enforcement of ICJ decisions to the political branches.
Comment by Justin Forlenza — March 25, 2008 @ 4:23 pm
Gilmore Harris -
Re: Your comment in # 4. I would hope that other countries treat Americans the same way Texas treated Medellin in this case. Namely, they would have gladly offered to let him speak to someone from his embassy HAD HE EVER BOTHERED TO ASK THAT REQUEST AFTER HE WAS ARRESTED. What Texas understandably refused to do was set aside his conviction and punishment after the fact simply because he decided to raise the issue years later on appeal in order to test a potential loophole. Americans shouldn’t fear similar treatment in other countries.
Comment by Justin Levine — March 25, 2008 @ 7:22 pm
Thank God. The sovereignty of the United States and of the state of Texas has been preserved and Federal authority has been kept in check. Finally, a Supreme court that gets. Most importantly though, the families of Jenny Ertman and Elizabeth Pena (the 2 girls Medellin brutallay and savagely raped and murdered) are one step closer to seeing justice done for their slain loved ones. May Medellin finally pay the ultimate price for the ultimate crime and may God have mercy on his soul, he will need it.
Comment by Stephen Hallett — March 26, 2008 @ 4:40 am
If this vote wasn’t 9-0, why aren’t there impeachment proceedings?
Comment by Jim Cramer — April 10, 2008 @ 8:49 am