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March 25, 2008

"States win over President on criminal law issue" in Medellin

I have borrowed for my title of this post the title of this post at SCOTUSblog, which reports on today's Supreme Court ruling in the capital/international case of Medillin.  The full opinion is available at this link, and here is the start of Lyle Denniston's summary:

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 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 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.

March 25, 2008 at 10:29 AM | Permalink


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Where in the world is U.S. v. Santos?

Posted by: Job | Mar 25, 2008 11:39:18 AM

So US States are above International Law and International Conventions that the Federal Government has affirmed? Don't lets be surprised when other countries start claiming that these International provisions are non-binding on them as well because of the lack of reciprocity. By its decision, it seems that the Supreme Court has weakened protection for US citizens around the world. As of course has the Federal Government itself in recent times by its denial of the terms of the Geneva Convention etc.

Posted by: peter | Mar 25, 2008 1:16:36 PM

Peter, I don't think that it says that anyone is above the law. In fact, it said the president can’t simply disregard the law and order state courts to do something. It also points out that ICJ judgments resolve dispute between countries. Not between individuals and countries, and are not self-executing. But, it notes that if they were binding (by the terms of the treaty or by a statute) they would be self-executing.

However, I think that someone could raise a valid VC convention argument as an evidentiary matter. In practice, in the US, I don't think it matters much, the 6th amendment provides defendants with more substantive protection against the state than the VC does, anyway.

The issue is fairly narrow... whether the ICJ could order states to "review... their U. S. state-court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions." In the footnotes, the Supremes point out that it really wouldn’t have mattered too much, anyway.

The Geneva Conventions are a different issue. They 1) have been interpreted and effectuated by statues and regulations; 2) might provide a rule of decision rather than a means to reopen a judgment.

Posted by: S.cotus | Mar 25, 2008 2:08:32 PM

The practical reality of the judgment is that the US can no longer be viewed by the rest of the world as a single entity when International agreements and law provisions are being made. All existing agreements can be viewed with healthy skepticism for the same reason. The concept of federalism is being taken backwards some decades as a majority of the Supreme Court absolve the Constitution from any responsibility for federal cohesion in its relations with the rest of the world. "Little America" rules again. Bin Ladin will be laughing his socks off.

Posted by: peter | Mar 26, 2008 3:03:25 AM

Peter, I disagree.

First of all, by the decision’s own terms, not “all” agreements fall into the category of non-self-executing agreements. There are, indeed, agreements that would be self-executing.

Second of all, the Supreme Court didn’t say that the VC didn’t apply to the states. Only that the judgment of the ICJ (to which the defendants were not a party) didn’t supersede state procedures for vindicating claims.

At some level, I think this is a victory for federalism. The president purported to be able to order state courts to do something? While I realize that “Federalist Society” federalists think that “state courts suck” and the “president is great” outside of their luncheons, state courts never had to heed to word of the president – nor should they. By this logic, the president, could simply declare that state courts must (or must not) do anything – citing his power to interpret some treaty -- and would not be subject to any review.

There is nothing in the opinion that says that state courts do not have to interpret the VC on their own pursuant to their own procedural rules.

Posted by: S.cotus | Mar 26, 2008 6:11:31 AM

You may be right, (and I would never trust the incumbent president on any issue) but the fact remains that Americans abroad expect that they will have the automatic right to consular access and assistance whatever the circumstances of their difficulties anywhere in the world, and the American government would expect that right to be upheld. Citizens of other countries have the right to expect the same level of consideration, in law, for themselves - and rightly so. If this case is so nuanced that the top court in the US is required to deliver a judgment - and then abdicates responsibility for the administration of justice in a case where life is at stake - that reflects very poorly on the administration of justice as a whole in the US.
As is reported on StandDown Texas Project website:
Georgetown Law prof Marty Lederman says

"My very quick and preliminary reaction, after having read only a bit of the opinion, is that the presidential power question is not the most important aspect of the decision. That would be, instead, the Court’s interpretation of Article 94 of the U.N. Charter as merely imposing a future obligation on the U.S. federal political branches to do something to comply with its requirement — and not to impose any independent obligation on the United States, including Texas, to actually take steps to comply with an ICJ judgment. This strikes me as an implausible interpretation, and as potentially very troubling for construction of treaty obligations going forward.

The article reads that the U.S. “undertakes to comply with with the decision of the [ICJ] in any case to which it is a party.”

The Court reads this obligation not to actually require the United States and its component parts to, uh, actually comply with an ICJ decision. Indeed, it apparently permits Texas (part of the U.S., last time I checked) to intentionally refuse to comply with such a decision."

Passing the buck back to Texas (of all States!) to see fair play and to honor its responsibilities is scarcely an acceptance of the nation's international responsibilities. Neither are other countries likely to accept the deal.

Posted by: peter | Mar 26, 2008 9:39:04 AM


Passing the buck on criminal justice to state courts (or courts in general) is virtually required in criminal justice matters. And, the administration has no responsibility to ensure that state courts properly apply the law, whatever it may be.

I do need to correct you on a few things. Not all countries are signatories to all of the VC. In fact, some popular tourist destinations (e.g. Thailand) are not signatories at all.

I think the VC issues, as it impacts Americans abroad is a bit of a red herring. There really isn’t an indication that American police departments are completely denying people access to counsel and counselor representatives. Foreign governments know that their citizens arrested in the US will generally be afforded an opportunity to contact their counselor representatives. But, itself doesn’t create any substantive rights.

There are lots of things that “reflect poorly on the administration of justice” in the US and aborad. However, a nuanced decision about the interplay between constitutional federalism, international relations, and criminal procedure is not one of them.

What I don’t expect foreigners to get is that, there is no indication that the treaty was unenforceable. It can still be raised in state courts. But, even there, there is the question of what a remedy for its violation would be. State courts would much likely resolve such an issue on Miranda grounds (in favor of the defendant) before carving out a new remedy for VC violations. And, like most criminal procedure issues, it can be subject to waiver. This decision simply instructs lawyers that they need to raise VC issues as they come up, rather than await judgments in related cases from the ICJ.

Now, I would agree with you if a Texas Court refused to consider a VC issue at all in the absence of a Miranda issue.

Posted by: S.cotus | Mar 26, 2008 11:26:27 AM

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