1. None of the above. What’s crucial to the future of our freedom is that the four right-wing “justices”, plus Kennedy, reversed 200 years of precedent. Our case law has always been that treaties are self-executing, meaning that anyone such as Medellin, who was given rights by the treaty, could enforce them by going to court, without any further action by Congress. To get around this problem, the majority “interpreted” the words of the treaty as requiring further Congressional action. But the logic they used is bizarre: if the treaty were self-executing, the U.S. would automatically comply with its provisions, and there would be no need for an enforcement provision. But since the treaty contains an enforcement provision, it must be interpreted to mean that compliance is at the discretion of the president. That’s the same as me saying to you, “I’m fully prepared to comply with the payment provisions of this loan agreement, therefore, the agreement need not contain any collection provisions”! If the Supreme Court can change this case law so dishonestly, it can change any case law, and wipe out our freedoms.

   Comment by Robert Moss -- March 27th, 2008 at 6:50 am

2. What’s so bad about requiring Congress to specifically make laws, as opposed to letting outside agencies meddle in American affairs? Seems to me that’s a protection of freedoms. Mr. Moss, you gave an impressive whine about ‘four right wing justices’ but the vote was 6-3. Grind your axes much?

   Comment by Realitycheck -- March 27th, 2008 at 8:06 am

3. There’s been a lot of discussion at the OpinioJuris on this decision. In one sense the six justices in the majority were following a very old precedential case (a lousy one in my view) involving whether and when a treaty is self-executing. I don’t quite have the same view of it as #1, but I agree there is a real concern that other countries will be less inclined to enter into agreements with the U.S. government on certain issues given that all 50 states may be free to ignore those agreements.

   Basically, the Supreme Court threw up its hands (yet again) and said it’s up to Congress to pass enabling legislation for the treaty. That’s rather mystifying, since the Constitution could hardly be more clear that the treaty process involves negotiation by the executive and ratification by the Senate. The House of Representatives plays no role at all, and of course Texas and all other states are constitutionally prohibited from entering into treaties on their own behalf.

   To me it’s really a states rights/federalism issue, not one involving the rejection of executive power. But no question there is an undercurrent of a political issue involving the inherent sovereignty of the U.S. That issue could explain why the usually precise Scalia and Alito went along with Chief Justice Roberts’ not-entirely-convincing opinion here.

   Comment by PLR -- March 27th, 2008 at 11:10 am

4. JEM raped and murdered two daughters of the United States and of the State of Texas. He received the same treatment that any son of the United States and of the State of Texas would have received in such a situation. Nothing has been shown that having the opportunity to have the Mexican Consul aide and abet his crime after the fact would have changed the outcome of his case.

   I don’t think that Mr. Bush really intended to enforce the ICJ decision. He failed to follow the proper legal process. The proper process would have been to have the United States attorney file in conjunction with defending counsel the appropriate motions in each court having jurisdiction in each individual case.

   Congress and the United States Supreme Court, not the President, determine the applicability of international law in domestic matters.

   In any event, Medellin’s execution will possibly encourage Mexican Nationals in our country to mind their manners.

   A mass deportation of unlawfully present Mexicans could possibly reduce the need for future executions.

   Grant W. Hunter

   hunterpp@gci.net

   3-27-2008

   Comment by Grant W. Hunter -- March 27th, 2008 at 8:57 pm

5. Overlooked by previous comments is the fact that the defendant’s own counsel waived his ICJ claim where before filing his initial habeas petition he had benefit of consular counsel and failed to plead that in his first petition.

   Texas law prohibits successive habeas corpus petitions, the court decided narrowly that the Convention did not pre-empt state bars to successive petitions for habeas coepus, something also barred under federal law except in extreme circumstances. Under the federal habeas statute, the successive petition would likely have been barred for the same reason cited by the Court-failure to raise the grounds cited in the first peition.

   President Bush basically did his typical form over substance move by making a phone call or writing a letter. I guess he feels that he can mollify Hispanic voters concerned about the systematic failures of the US courts and law enforcement to inform foreign nationals of their rights under the treaty by saying , in an ineffective letter, “States follow the law.”

   One issue in the case will bear further review, it was important tomthe Court that the judgments of the ICJ not pre-empt state procedural law. Given that nearly every case brought in the ICJ against the US has resulted in another loss for the US, the Court has secured the primacy of US law over that of the ICJ except where Congress has specifically passed some statute saying otherwise or the treaty, as agreed to by the US, is self-executing.

   I can see the Court’s concern. If the decisions of the ICJ pre-empt state procedural bars to some state action, query whether in the future some state or federal action might be challenged under some other treaty based upon a decision by the ICJ, for which there must be consent for jurisdiction by a nation-state, and therefore the laws of the United States or any of the various states of the union may changed at the whim of the ICJ.

   Notwithstanding the concerns of the Court, the US needs to decide how it will handle its treaty obligations to allow foreign nationals access to consular counsel when arrested for offenses in the US or its territories. The rule of law and claims of fairness look shabby where there is a systematic evasion of obligations agreed upon by the country to observe certain norms of international behavior. We must do better.

   Comment by Tim Hogan -- March 28th, 2008 at 11:50 am

6. To Reality Check:

   This issue is not Congress making laws vs. “letting outside agencies meddle in American affairs”. The Treaty submitting to the jurisdiction of the International Court in some cases was signed by the President and ratified by the Senate. An implementing law would say the same thing: the U.S. submits to the jurisdiction of the International Court in some cases.

   What’s wrong is the right-wing justices, joined by Kennedy, reversing established law on the grounds of absolutely stupid reasoning (joined also by Stevens, but for less stupid reasons). It’s not about Medellin, who may be a less than a sterling character. This is what the right has long decried as “legislating from the bench”. If they’re willing to reverse this case law without valid reasons, then they’re willing to reverse ANY case without valid reasons. Then, we are no longer under the rule of law. Eventually, the Court will lose it’s authority, and with that goes its ability to protect our Constitutional rights.

   To PLR:

   They did not follow any “very old precedential case”, lousy or otherwise. Would you specify which case you have in mind?

   Bob Moss
   bobmoss@bestweb.net

   Comment by Robert Moss -- April 11th, 2008 at 7:26 am

7. #6: Foster v. Neilson, 27 U.S. 253 (1829). I should probably have said that the Medellin decision is consistent with Foster, not that the Court specifically followed Foster.

   But back to you, I don’t understand the comment about “reversing established law.” What was reversed?

   Comment by Ron2 -- April 11th, 2008 at 11:52 am

8. Ron2:

   I am not quite done writing this up formally, but here’s the summary. A long line of cases evaluated individuals’ claims under treaties without even broaching the subject of self-execution, that is, they never asked if enabling legislation were necessary or had been passed. The clear rule, explicitly established, was that “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.” The Head-Money Cases, 112 U.S. 580, 598–599 (1884).

   Foster v. Nielson gave the flip-side: “when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department.” At 314-315. Foster
   is not contrary in its exposition of the law, but in its interpretation of the treaty at hand. It read the provision about ratifying land claims as requiring Congress to act, rather than “establishing a rule” etc. This was later changed when a new translation of the Spanish treaty text was brought to the attention of the court.

   The rule laid down in the Head Money Cases, and followed until the 21st century, is fairly easy to adjudicate, compared to, say, “equal protection”. It applies to specific provisions, not the treaty as a whole. It is in sharp contrast to Roberts’ Medellin rule, which purports to search the treaty as a whole for an “intention that it be ‘self-executing’”. Roberts’ interpretation of Article 94 is entirely bizarre and logically, would not work the way he describes.

   More when I complete my paper. Please feel free to contact me at bobmoss@bestweb.net.

   Comment by Robert Moss -- April 13th, 2008 at 7:31 am

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