Bench Memos

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Medellin v. Texas: Some Initial Thoughts


1.  The Court’s ruling may well be portrayed as a defeat for the particular assertion of executive authority that President Bush made.  And it certainly is that—and a deserved defeat as well, it would seem.  In this regard, it’s worth noting that the justices generally thought to be most respectful of a muscular executive—Roberts, Scalia, Thomas, Alito—rejected the president’s position (as did Kennedy and Stevens), whereas Breyer, Souter, and Ginsburg preferred “to leave the matter in the constitutional shade from which it has emerged” (i.e., not to express a definitive opinion on it). 


What this alignment signals is that the fundamental question in the Medellin case is really about the relationship between the treaty power and domestic law.  And the ruling is a significant victory for American citizens and for representative self-government—and a defeat for internationalists who would use the treaty power, and treaty interpretations by international bodies, to do an end-run around the legislative processes and to impose domestic obligations on American citizens and governmental entities.


2.  Article VI of the Constitution provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”  Why, one might ask, doesn’t this provision mean that all treaties automatically have effect as domestic law?  Why is there such a thing as a “non-self-executing” treaty?


The short answer is that some treaties are read as stating that they don’t have effect as domestic law.  (All justices agree on this point, though they disagree on how to determine whether a treaty should be so read.)


If this seems puzzling, consider this analogy.  Federal statutes, so long as they comply with the Constitution, are also “the supreme Law of the Land” under Article VI.  Assume that a federal statute states that it applies only in certain states.  It would still be “the supreme Law of the Land” in other states, but it wouldn’t impose any obligations in those states.

Tags: Whelan


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