Medellin v. Texas

Part II: Presidential & Congressional Power

April 1, 2008

Questions and Answers:


First, thanks to Ted, Nick and David for your very thoughtful posts.  I think you have thoroughly covered the non-self-execution issue, and I would like to move the discussion to some related issues.  Before doing so, but without, I hope, extending the n-s-e discussion, I would like to make a couple of observations:

I agree pretty much straight down the line with Nick, including his description of the opinion.  Even if one does not agree with everything the Chief said, I think we will all agree that he has provided us with a bright, clear opinion that should go a long way in clearing up much of the muddle in this area.

On the domestic v. international law issue, I think the US is the only (US) person bound as a matter of international law.  Other US actors are not bound, as a matter of international law, but they may cause the US to violate its obligations as a matter of international law.  To prevent this, the USG needs to take action to make sure that other actors do not do this.  Article VI permits this, but simply ratifying a treaty in accordance with one of the two Constitutionally available processes is not enough.  The treaty must, by its terms, be self-executing or there must be separate legislation.

The self-execution question is not a question of enforcement of a treaty -- it is a question whether the treaty is intended to be law.  If it is so intended, then it is the supreme law of the land under Article VI.  

Second, based on our pre-decision discussions, the most obvious next issue would be Presidential power.  In fact, the majority opinion is so clear on the issue of non-self-executing that this will be a very short discussion.  What the majority opinion very helpfully cleared up (at least for me, because this is where I really got it wrong) is that notwithstanding the President's powers and responsibility for conducting foreign policy, taking care to see that the laws are enforced, etc., unless a treaty is self-executing or Congress otherwise makes it federal law, the ratification of a treaty does not give the President authority to do anything that he otherwise is not empowered to do.  A couple of comments --

Pink, Belmont and Dames&Moore appeared to me to permit an expansion of Presidential power when accompanied by an international agreement, even without having to go through the treaty-making process. The opinion does a masterful job of limiting those cases.

Implicit in the opinion, however, is the notion that Congressional and Presidential power can be expanded under the guise of treaty-making -- pursuant to a self-executing treaty, the President could "establish binding rules of decision that preempt contrary state law" (see page 35).   Cf. Missouri v. Holland?   Of course, this expansion is subject to Constitutional limitations.  E.g., a treaty obligation to bar (or require) religious observances would not be enforceable, but what about a treaty obligation that required the US to bar anti-Canadian bias in state court proceedings?  (Loewen, a Canadian funeral company, brought an arbitration proceeding against the USG under NAFTA c. 11 after losing a race- and xenophobic- charged state court case in Mississippi.  In order to avoid liability under NAFTA for state court proceedings that did not afford Canadians "fair and equitable treatment", the USG arguably would need to adopt legislating regulating the conduct of MS state court proceedings.)  I think an argument can be made that the Convention on the Rights of the Child outlaws abortion.  Roe v. Wade would bar the enforcement of that portion of the Convention as a matter of domestic law, but were Roe not on the books, could the USG adopt a ban on abortion under the authority of Convention (I assume that such a ban is not within the President's or Congress' authority otherwise)?  (The US has signed but not ratified the Convention.

Third, notwithstanding the clarity of the Chief's opinion, I worry that it may make the process of making treaties federal law may get overly complicated and become awkward politically.  Are the following real issues or am I seeing ghosts?

The majority opinion says that a treaty becomes federal law in one of two ways: Senate consent to a self-executing treaty or legislative implementation.  Where a treaty is submitted to the Senate for its consent, is there a suggestion that the self-executing intent could not be manifested outside the body of the treaty?   Normally, the Executive branch sends the treaty up, with its explanation, including whether the treaty is self-executing, what additional authorities are needed, etc.  Could the federal-law implementing language be included in the Executive branch message?  Could the Senate do this in its resolution?  Could the Senate make a treaty more self-executing than the President indicated?  Less?

I assume that, however the Senate/Congress makes the treaty federal law, it could delegate to the President full authority as to enforcement (e.g., adopt regulations, impose penalties for violation, etc.).  Agreed?

Does the majority opinion's requirement that the Senate/Congress be a participant in a clear implementation of a treaty into federal law undercut the President's power to terminate a treaty?  Could the Senate/Congress authorize the President not to enforce the treaty -- e.g., not to enforce an ICJ decision?  Could the President reserve this authority?  Does he need to?



Thanks for your contribution.  I’d just like to address a couple of points.


I agree with the majority on at least one point.  If a treaty is not law, the President can’t make it law by executive fiat.  He is not a lawmaker.


You say that the US is the only person bound as a matter of international law.  This may be technically true, but somewhat misleading.  The international rule on this point is expressed in Article 4 of the International Law Commission’s Articles on State Responsibility.  It says: “The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other function . . . and whatever its character as an organ of the central Government or a territorial unit of the State.”  In other words, if a state judge in Texas acts in breach of a US treaty obligation, the judge is acting on behalf of the United States in precisely the same way that the President acts on behalf of the United States in the international sphere.  From the standpoint of international law, there’s no difference between the President and the Texas state judge.  In both cases, their actions ARE the actions of the United States.


I don’t want to extend the debate on self-execution, but I can’t agree that the Chief gave us a “bright, clear opinion.”  I think he took a very confused doctrine and exacerbated the confusion.



Thanks, Ed.  You raise a number of excellent questions. I will just comment on one set of issues that you raise: the extent to which treaties can increase the power of the federal government.


After determining that the ICJ opinion is not enforceable domestic law of its own force, the Court then considered whether the President can order a Texas court to hold a hearing to comply with the ICJ opinion despite Texas law to the contrary.  Absent the treaty and the ICJ opinion, the President would presumably have no such power, so the question is whether the treaty conferred this power on the President.  The Court held that it did not, and I agree with Ed and David that the Court was correct.  Ed reads Medellin to hold that "a [non-self-executing] treaty does not give the President authority to do anything that he otherwise is not empowered to do."  I'm not sure that the opinion itself goes quite that far, but that is indeed, I believe, the correct constitutional rule.  The President has the power and duty to "take care that the laws be faithfully executed."  But non-self-executing treaties do not themselves constitute enforceable federal law, so they do not give the President any new powers of execution.


Next, Ed raises two closely related questions lurking in the background of the case. First, can self-executing treaties increase the power of the President?  Ed reads the opinion to imply that they can; I agree, and I think the implication is correct.  Self-executing treaties, unlike non-self-executing ones, are enforceable federal law for purposes of the Take Care Clause.  From the President's perspective, they have the same status as federal statutes, and he has a duty to take care that they be faithfully executed.  Just as an Act of Congress can increase the power of the President by giving him something new to execute, see Youngstown, 343 U.S. at 635 (Jackson, J., concurring), a self-executing treaty can do the same.  


Finally, Ed raises the most important question in this area: can treaties increase the power of Congress?  In Missouri v. Holland, Justice Holmes held that they can, but, in my view, Holmes was wrong.  As I have argued, the powers of Congress are fixed by the Constitution, which expressly limits Congress alone to those powers "herein granted"; in my view, the powers of Congress can be increased only by constitutional amendment, not by treaty.  The Necessary and Proper Clause conjoined with the Treaty Clause provides that "The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution . . . [the] Power ...  to make Treaties"; but on their plain text, contra Missouri v. Holland, these clauses do not give Congress additional power to implement treaties already made.


Medellin offers a hint of hope that, if push came to shove, the current Court might agree.  In the Medellin opinion, the Court spent several pages discussing the power of Congress to pass legislation implementing treaties--and Holmes's 1920 opinion is, without question, the seminal case on this issue.  Yet, strikingly, not once in the entire opinion did the Court see fit to cite Missouri v. Holland.


Obviously, there is only one possible explanation: the Justices have been reading Executing The Treaty Power, 118 Harv. L. Rev 1867 (2005)!


Nick -- Apologies for not having read "Executing the Treaty Power", which you sent me and I carried around in my brief case for some time!  Will now read it.  I did not, however, glean from the opinion anything that would be inconsistent with Missouri v. Holland -- rather I read the discussion of Congress' power to implement treaties through legislation as contrasting with the President's lack of such a power.

David -- Even assuming the ILC got it right, I do not read the ILC's State Responsibility Articles as imposing liability on the Texas judge -- they just make it clear that the Texas judge's acts trigger a violation by (and liability on the part of) the US.  To find a violation by (and liability on the part of) the Texas judge (or Texas), you would need some very specific language in the treaty; they would not be found on the basis of the principles reflected in the ILC Articles.

We can draw this to a close whenever you would like, but let me throw out a couple more thoughts --

Does Medellin have any impact on:
    • the whole question of customary international law as a component of federal [common?] law?  I would think it does, because if a treaty that goes through the treaty-making processes envisaged by the Constitution does not become domestic law unless it is clear that the Senate/Congress intended that, certainly something that has no Constitutional underpinning cannot, e.g., trump a state law
    • Sosa?  I.e., does it up the standard for finding a violation of the "law of nations" that creates a private right of action?  Probably not, except to the extent that the previous point is valid. 

There is a lot of confusion over the meaning of "non-self-executing".  It is used to mean several things -- (a) the treaty does not have domestic legal effect (the correct meaning), (b) Congress wishes/needs to enact implementing legislation,  (c) the Constitution requires that Congress enact implementing legislation and (d) the treaty does not provide a private right of action.  Likewise, "self-executing" is sometimes used to mean (a) the treaty has immediate domestic effect, (b) Congress does not need to enact any additional legislation, because the provisions of the treaty are already reflected in domestic legislation and (d) the treaty provides a private right of action.  The Restatement treats (d) as a totally separate issue, which is probably correct, except, of course, if a treaty does not have domestic legal effect, it cannot form the basis for a private right of action.  I will circulate a suggested re-write of the Restatement definition. 

I am struck by the difference between UN Charter Article 94(1) ("each member undertakes to comply" with an ICJ decision) and Article 25 ("agrees to accept and carry out the decisions of the Security Council").  The Article 25 language sounds much more self-executing.  When the Security Council is trying to change the behavior of a member, it may decide that the member shall, e.g., suspend "proliferation sensitive activities" (i.e., self-executing), but when ordering other members to impose sanctions to curb those activities, it orders them to "take necessary measures" to, e.g., prevent the sale of items that could be used in such activities (i.e., non-self-executing).  So, it should not come as a surprise to the international community that the US regards the UN Charter as non-self-executing.  


Thanks, Ed.  Just to clarify, I quite agree that Medellin is, on its face, consistent with Missouri v. Holland.  But it does seem remarkable that the Court did not even cite that case, let alone reaffirm it.  Maybe it is time for some enterprising State SG (Ted?) to argue that Missouri v. Holland should, at long last, be overruled....



Read Part I: Self-Execution.