Medellin Oral Argument -- Two Constitutional Questions

[Marty Lederman]

My apologies for an inexplicable (Freudian?) slip:  I meant to write that Justices Scalia, O'Connor and Kennedy all expressed serious concerns about whether it would violate article III for a treaty (or a statute) to provide that the ICJ's construction of a treaty is binding on U.S. courts -- that is to say, they took to heart the argument of Professors Stephan, Ku, et al.  (I'm the one with "doubts" about that argument.)  Tony Mauro's account is accurate. 
  ----- Original Message ----- 
  From: Julian Ku 
  To: marty.lederman at comcast.net ; intlaw at virginia.edu 
  Sent: Tuesday, March 29, 2005 9:29 AM
  Subject: Re: Medellin Oral Argument -- Two Constitutional Questions


  Thanks to Marty for raising an interesting and complex issue. Let me try to make a couple of short no doubt inadequate responses:

  (1) First, I would be curious for your thoughts on Tony Mauro's account in Law.com of argument yesterday because he suggests that Justice Scalia is not as skeptical of the Article III argument as you suggest. But I wasn't there and perhaps Scalia's questions reflected some other objection? 

  http://www.law.com/jsp/article.jsp?id=1112016914359

  Justice Antonin Scalia, the Court's most vocal opponent of allowing foreign laws and norms to influence Supreme Court decisions, suggested in several questions that he did not think a treaty could "give away" the final authority of the Supreme Court to decide constitutional questions. 

  My impression is that Scalia is just as skeptical of "giving away" the final authority of the Supreme Court to the ICJ as he is of giving it away to the Executive Branch.

   
  (2) In any case, I am not so sure here that everyone agrees with you that "[t]here is no U.S. treaty (is there?) that provides that ICJ interpretations of the Vienna Convention shall be binding, or conclusive, on U.S. courts when those courts are required to adjudicate questions that turn on an interpretation of Vienna."  In fact, I believe the Petitioners make that exact argument relying not on the U.N. Charter but on the Optional Protocol to the Vienna Convention. They suggest that the Optional Protocol's language of "compulsory jurisdiction" for resolving disputes combined with the Supremacy Clause requires the Court to follow the ICJ's interpretation of the Vienna Convention.  

  My own view (which was set forth by Professor Stephan in our brief more eloquently than I can do here) is that this language can simply not fairly be read to delegate to the ICJ the broad authority the Petitioners' claim here.  Whether a treaty could ever delegate such authority is a separate question, but to claim that the phrase "compulsory jurisdiction" between "parties" (meaning governments) allows private parties to force domestic courts to abide by ICJ judgments seems implausible. 

  (3) There is a reason why the SG's Brief relies so heavily on Article 94 of the U.N. Charter rather than the Optional Protocol. Article 94 has generally been held to be non-self-executing or judicially unenforceable and therefore does not "assimilate" ICJ judgments in quite the same way you might think.  The SG plausibly claims that only the political branches have the authority to implement ICJ judgments under Article 94.  Indeed, the SG draws on Article 94, in part, for the P's authority to preempt Texas state law.  

  (4) None of this, I realize, fully takes on your broader point about the constitutionality of assimilation by treaty or statute.  Let me just clarify that in this case, the argument is mostly about whether such assimilation or delegation has actually occurred. I think not.  Moreover, because I do think there must be some constitutional limitation (imagine if a federal court had enforced the ICJ's Nicaragua judgment requiring the U.S. to stop mining activities, for instance) on the assimilation of international court judgments, I believe courts should tread carefully before finding that such assimilation or delegation has occurred.

  Best, 

  Julian 

  Julian G. Ku
  Associate Professor of Law
  Hofstra University School of Law
  121 Hofstra University
  Hempstead, NY 11549

  www.lawofnations.blogspot.com
  516-463-4237 
  >>> "Marty Lederman" <marty.lederman at comcast.net> 3/28/2005 4:27:32 PM >>>

  [Cross-posted to CONLAWPROF and INTLAW.]



  The Court heard argument this morning in Medellin.  My fellow blogger Lyle Denniston has posted on the case, see http://www.scotusblog.com/movabletype/archives/2005/03/medellin_case_t.html, and I think Lyle's account is fair and accurate.  It's not at all obvious what the Court will do: The Justices appeared to understand that there were approximately 1001 ways in which they could resolve the case, or decide not to decide anything.  Several Justices seemed reluctant to reach any of the difficult and provocative statutory and constitutional "merits" issues because the case could in effect be mooted if Medellin prevails in his new habeas petition in Texas (in which he relies upon the Avena decision and on the presidential determination).  But even the Justices who expressed reluctance to reach the merits weren't certain whether the proper procedure would be to DIG the case or to grant Medellin's motion for a stay.

   

  Most interesting to me were two constitutional questions raised at the argument (although neither of them engendered a great deal of discussion).  I'll describe the first in this post, and the second in a follow-up post, so that anyone who's interested can continue the two discussions separately.

   

  First, Justices Scalia, O'Connor and Kennedy all expressed serious doubts about whether it would violate article III for a treaty (or a statute) to provide that the ICJ's construction of a treaty is binding on U.S. courts.  (Justice Scalia offered the analogy of a treaty providing that a foreign official shall be commander-in-chief of U.S. forces.)  This is, of course, one of the arguments that Professors Stephen, Harrison, Ku, et al., urged in their amicus brief.  See the citation to Marbury on page 19 of http://www.scotusblog.com/movabletype/archives/medellin.sixprofessors.amicus.pdf.  

   

  I think this is a very interesting question in its own right (cf. U.S. v. Klein)-please feel free to discuss-but I wonder whether that's truly what's at stake in Medellin.

   

  There is no U.S. treaty (is there?) that provides that ICJ interpretations of the Vienna Convention shall be binding, or conclusive, on U.S. courts when those courts are required to adjudicate questions that turn on an interpretation of Vienna.  Instead, as the SG explains at page 34 of his brief (see http://www.scotusblog.com/movabletype/archives/medellin.sixprofessors.amicus.pdf), Article 94 of the U.N. Charter-which is itself a treaty-imposes a distinct obligation on the United States to comply with ICJ decisions.  That treaty obligation to comply with ICJ decisions applies regardless of whether the ICJ "correctly" interpreted Vienna.  That is to say, the ICJ's judgments themselves become "assimilated" into federal law, and must be honored by U.S. courts in addition to any obligations that Vienna imposes.

   

  In this respect, requiring courts to give effect to ICJ judgments is no different from requiring courts to give effect to state law that is assimilated into federal law, see U.S. v. Sharpnack, 355 U.S. 286 (1958); or to give effect to a tobacco-growers' referendum, see Currin v. Wallace, 306 U.S. 1 (1939); or to give effect to the judgment of milk handlers, see U.S. v. Rock Royal Co-op, Inc., 307 U.S. 533, 577 (1939); or to give issue- or claim-preclusive effect to state-court judgments, see the Fair Faith and Credit Act (at issue in the San Remo case that was argued immediately prior to Medellin); or to give effect to an arbitration prescribed by statute, see Thomas v. Union Carbide, 473 U.S. 568 (1985); see also section V-C of http://www.usdoj.gov/olc/arbitn.fin.htm.  In all of these cases, the non-federal actors are not making conclusive interpretations of federal law; instead, Congress prescribes (or, in the case of a treaty, the President and Senate prescribe) that the substance of federal law shall be determined by reference to the decisions of other parties or bodies.  There ought to be no article III problem in that.  Or is there?

   

  The second question is whether the President has the constitutional, foreign-affairs authority to deliberately cause the U.S. to violate a treaty-in this case, Article 94 of the U.N. Charter.  More on that in my next post. 
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