Notable SG Amicus Brief in Medellin v. Drekte

By Marty Lederman
on Mar 1, 2005 at 5:51 am

Yesterday was the deadline for respondents’-side briefs in No. 04-5928, Medellin v. Dretke — a follow-up to the Court’s decision in Breard v. Greene, 523 U.S. 371 (1998), and a closely watched case concerning whether and to what extent U.S. officials and courts must defer to treaty interpretations of the International Court of Justice (ICJ). The Acting SG has filed a very interesting and potentially provocative amicus brief on behalf of respondents — announcing a new presidential determination, which in turn supports an argument about presidential and state-court enforcement of the Vienna Convention that might result in the Court vacating the case without reaching the merits.

In both Breard and Medellin, foreign nationals who had been sentenced to death by state courts (in this case, in Texas) filed habeas petitions seeking to overturn the judgments on the ground that state authorities had violated the Vienna Convention by failing to inform them that they had a right to contact their home-country consulates. In Breard, the Court denied certiorari, and refused to stay a death sentence, on the ground that the petitioner had defaulted on his treaty claim by failing to raise it in state (Virginia) court. The Court rejected the argument that the treaty trumped procedural-default rules law on two grounds: (i) It construed the Vienna Convention itself not to trump such rules; and (ii) it held that, in any event, any treaty-based relief must satisfy the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA), which was enacted subsequent to ratification of the Vienna Convention, and which denies an evidentiary hearing to a habeas petitioner alleging a treaty violation if the petitioner has failed to develop the claim’s factual basis in state court.

There are two basic substantive questions in Medellin concerning the meaning of the Vienna Convention: Does the Convention create an “individually enforceable right” for a foreign criminal suspect to consult with his or her nation’s consular office? And, if so, does the Convention require a signatory party (such as the U.S.) to waive procedural defaults under domestic law for someone raising such a right? Petitioner argues that eleven months ago, in a case called Avena, 2004 I.C.J. 128, the ICJ answered both questions in the affirmative, thereby disagreeing with the U.S. Supreme Court’s own treaty interpretation in Breard. (The Acting SG’s brief denies that the ICJ answered those questions specifically, but concedes that the ICJ held that the Convention requires U.S. courts to attach “legal significance” to a violation of the consular-notification provision of the treaty.) The questions presented in Medellin are whether the Supreme Court should, or must, defer to the ICJ’s interpretation of the treaty.

The briefs on petitioners’ side can be found here. Texas’s brief is here. On Friday, the Acting SG made an unusual motion for leave to exceed the 30-page limit for its amicus brief in support of Texas, and Justice Scalia granted the government 50 pages. The ASG filed the Government’s brief yesterday, in which it sided with Texas in two important respects:

First, the ASG argues that the Court should not address the substantive claims, because AEDPA requires the petitioner to receive a certificate of appealability (COA) in order to pursue the merits of his claims on appeal — but a COA may not be obtained for claims of a treaty violation, and, in any event, the state court’s denial of relief was not contrary to, or an unreasonable application of, any holding of the Supreme Court, which is a prerequisite for a COA.

Second, the ASG argues that if the Court reaches the merits, it should reject petitioner’s reliance on the treaty (and on the ICJ decision), because it is the Executive branch’s conclusion that the Vienna Convention, although it is “self-executing,” does not provide judicially enforceable private rights: “It is for the President, not the courts, to determine whether the United States should comply with the [ICJ] decision, and, if so, how.” The ASG specifically argues that there is a presumption that treaties do not create judicially enforceable private rights, even where (as with the Vienna Convention) they are “self-executing” and intended to protect individual rights. This argument could have significant implications not only for the Vienna Convention but also for forthcoming cases dealing with the Geneva Conventions and the Convention Against Torture.

But here’s the really interesting twist in the Government’s brief: The ASG concedes that the U.S. has a treaty obligation (under Article 94 of the U.N. Charter) to comply with the ICJ’s Avena decision. The brief also announces that, just yesterday, the President promulgated a determination that the United States will comply with the ICJ’s Avena decision, in order to “protect the interests of United States citizens abroad, promote[] the effective conduct of foreign relations, and underscore[] the United States’ commitment in the international community to the rule of law.” The brief argues that the President has flexibility in determining how the U.S. shall abide by the ICJ decision, and explains that the President has determined, “pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of American (Avena), 2004 I.C.J. 128 (Mar. 31), by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

That is to say, the President is ordering state courts to waive their procedural default rules in the 51 cases, even though the Vienna Convention does not (in the President’s view) compel such waiver. The brief argues that the President’s directive to state courts supersedes contrary state rules pursuant to the Supremacy Clause, even without any implementing legislation: “In accordance with the President’s determination, petitioner can seek review and reconsideration of his Vienna Convention claim, without regard to state law doctrines of procedural default, by filing an appropriate action in state court for enforcement of the ICJ’s decision under principles of comity. State courts will then provide the review and reconsideration that the President has determined is an appropriate means to fulfill this nation’s treaty obligations.”

There is a certain irony in this argument: In Breard, the Clinton Administration had argued that even if an ICJ Order were binding under international law, as a matter of domestic law “our federal system imposes limits on the federal government’s ability to interfere with the criminal justice system of the States.” This suggestion of federalism limitations with respect to treaty obligations found favor with academics who later served in the Bush Administration, such as Curt Bradley and Jack Goldsmith. See The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 Am. J. Int’l L. 675 (1998). (Goldsmith left the Justice Department before cert. was granted in Medillin. Bradley was until recently at the State Department and may well have been involved in formulating the Administration’s new position.) [UPDATE: In fairness to Bradley and Goldsmith, their article merely suggested that “[t]here may be some instances . . . in which the federal political branches will lack the authority to override state law, even pursuant to a treaty.” Their principal argument, however, was that the Constitution “gives the federal political branches broad executory foreign relations powers and creates a supremacy clause, federal executive, and federal judiciary to ensure state compliance with exercises of this authority” — an institutional arrangement that “treats foreign relations and federalism as competing values and largely leaves it to the federal political branches to decide when a state act has sufficiently adverse effects on foreign relations to require preemption.” Therefore the President’s directive to the states on Monday is arguably consistent with the premises of their article.]

The ASG’s new view of the Executive’s (and presumably Congress’s) power to command the states in the service of the federal government’s judgment about what is best for U.S. foreign affairs finds support in the Supreme Court’s recent decision in American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003); see also Carlos Manuel Vázquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, 92 Am. J. Int’l L. 683, 685 (1998) (arguing that the President could require a state to comply with an ACJ decision) — but it is in considerable tension with the Administration’s reputation as a defender of the new federalism. It will be interesting to see how Texas responds to the ASG’s argument.

The Government’s brief provides two important qualifications, however: First, the state courts need only abide with the ICJ decision in the specific cases of the 51 Mexican nationals who were actual parties in the Avena case, “without prejudice to the courts’ power to consider afresh in other cases the underlying reaty-interpretation and application issues subsumed in the ICJ’s rulings.” Second, and relatedly, “[t]he President’s determination, which means that procedural default rules may not prevent review and reconsideration for the 51 individuals identified in Avena, is emphatically not premised on a different interpretation of the Vienna Convention [than the Court’s decision in Breard]. To the contrary, . . . the Executive Branch regards the Court’s holding in Breard as controlling” in its holding that the Vienna Convention does not prevent application of procedural default rules to a Vienna Convention claim.

Over on the very interesting Opinio Juris blog (operated by three international law professors), Prof. Julian Ku predicts that the ASG’s argument “will result in this case being vacated and remanded to the lower courts or dismissed altogether. I cannot imagine why the Court would want to hear this case if they don’t have to. And the Executive’s brief yesterday gives them every reason to believe they don’t have to.”

Professor Ku himself has, along with five other law professors, filed an amicus brief that argues, inter alia, that if the Court construes treaties to require U.S. courts to defer to the ICJ’s interpretation of the Vienna Convention, it would raise “grave and significant” article III, federalism and separation-of-powers questions. With all respect, I am very doubtful that there are any such serious constitutional questions. Indeed, the professors’ brief itself more or less concedes that if the same deference to ICJ were required by statute, it would be constitutional. Cf. Neil Kinkopf, Of Devolution, Privatization, and Globalization: Separation of Powers Limits on Congressional Authority to Assign Federal Power to Non-Federal Actors, 50 Rutgers L. Rev. 331 (1998); Edward T. Swaine, The Constitutionality of International Delegations, 104 Colum. L. Rev. 1492 (2004); U.S. v. Sharpnack, 355 U.S. 286 (1958); Currin v. Wallace, 306 U.S. 1 (1939); U.S. v. Rock Royal Co-op, Inc., 307 U.S. 533, 577 (1939). It’s not immediately apparent why the constitutional analysis would be any different if the domestic “assimilation” of ICJ law (cf. Sharpnack) were prescribed by binding treaty, rather than by statute.

Alabama and 19 other states also filed an amicus brief in support of Texas.