ACSBlog: The Blog of the American Constitution Society

by Martin Flaherty, Co-Director of the Crowley Program in International Human Rights at Fordham Law School and Leitner Family Professor of Law.

Editor's note: the Supreme Court will hear argument in Medellin v. Texas this morning.

Though known primarily to specialists, Medellin v. Texas may be one of the most important cases that the Supreme Court will consider this Term. Making its second visit to the Court, this complex action in some way touches upon most of the cutting-edge issues in foreign relations law. As such, Medellin should have much to say about the future relationship between the United States on one hand and international law and institutions on the other, in an age characterized by globalization and responses to terrorism. As if this were not enough, Medellin also will go a long way toward determining the fate of 51 Mexican nationals on death row in several U.S. states.

The case centers on the rights of one of this group of Mexicans, Jose Ernesto Medellin, granted under the Vienna Convention on Consular Relations, a treaty that the U.S. signed and ratified in 1962. Article 36 of the Convention provides that “if [a foreign national] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.” It continues that the authorities of the host country shall inform the person of “his rights” “without delay.”

Thirty years later, Medellin was arrested by local police in Texas for the brutal murder of two teenage girls. The authorities read him his Miranda rights. But as with most foreign nationals placed under arrest in the U.S., Medellin was not informed of the apparently similar right to consult with consular officials from the nation of which he was a citizen. Medellin was then tried, convicted, and sentenced to death; he exhausted his appeals. Only after this point did Medellin learn of a possible treaty claim, whereupon he brought state and federal habeas actions seeking a retrial based on Texas’ violation of the Vienna Convention. His petitions at both levels were denied.

Meanwhile, Mexico took up the Vienna Convention claims of Medellin and fifty other Mexican nationals in an action against the United States in the International Court of Justice, in a case known as Avena. The ICJ held that the treaty created an individual right for foreigners under arrest to consult with consulate officials and to be informed of this right. On this point, the ICJ differed with the Supreme Court’s previous interpretation in Breard v. Virgina, which held in part that any such claim could be barred by state procedural default rules. As for a remedy, the ICJ declared that the U.S. had an obligation to have the convictions of the Mexicans be “reviewed and reconsidered” by U.S. courts.

But Medellin had not obtained relief just yet. In light of Avena, the Supreme Court granted certiorari to Medellin last year in part to determine what deference the U.S. and its courts owed to the ICJ’s judgment. As the case was pending, President Bush issued a memorandum addressed to the Attorney General, determining that the U.S. would comply with the Avena judgment and that the judicial review and reconsideration take place in the state courts.   Given the President’s intervention, the Court later held certiorari was improvidently granted.

The Court then found two new cases, consolidated as Sanchez-Llamas v. Oregon, to explore the same issue. In these cases, the Court held that while it owed respect to the ICJ’s determination, it was not bound. It ruled further that state procedural bars could preclude reliance on the treaty or the Avena judgment. Of crucial importance, however, Sanchez-Llamas did not deal with any party to Avena itself, including Medellin. Subsequently, Medellin again brought state and federal habeas actions based in part on the President’s memorandum. Again he lost, and again petitioned the Court.

This time around, Medellin deals with the two fundamental types of foreign relations law questions: the status of international law within the domestic U.S. law, and a separation of powers question with a federalism twist.

The principal international law question centers on whether a judgment of the ICJ is binding in U.S. state courts. Arguing yes, Medellin principally contends that the U.S. has entered into self-executing obligations to give full force not just to the rights that the Convention safeguards, but also the judgments of the ICJ in resolving disputes involving the Convention – at least as to the individuals to whom the judgment applies. These obligations arise under U.S. ratification of the Convention’s Protocol, the Statute of the ICJ, and the UN Charter. In opposition, Texas maintains that Sanchez-Llamas controls, interpreting that case to mean that U.S. courts owe the ICJ no deference.

The separation of powers issue considers the legal weight of the President’s determination that the state courts implement the ICJ’s judgment. Here, Medellin mainly argues that the President’s memorandum simply confirms what already exists – the obligation of state judges under the Supremacy Clause to implement self-executing treaties, which in this instance includes the commitment to enforce the judgments of the tribunal delegated to resolve the dispute as to the parties in the case. Texas counters that the President’s action trenches upon legislative authority by seeking to have courts implement the treaty contrary to the Senate’s ostensible intentions; that it intrudes on the judiciary by, among other things, ignoring Sanchez-Llamas; and that it undermines state sovereignty. Not surprisingly, the U.S. defends the President’s memorandum by relying principally on an expansive theory of executive authority in foreign affairs in combination with the Take Care Clause.

Medellin v. Texas defies ready prediction, in part because it unites those who are sympathetic to international law with those who advocate broad executive power. But the importance of the case is clear enough. It will help clarify the reach of Sanchez-Llamas on the one hand as against that of the ICJ on the other. More importantly, it should give further indication of how the Court will consider the extent to which the U.S. can delegate important functions to international bodies. This question will become only more important as the world gropes toward greater coordination in tackling pressing global challenges.