Politics & Policy

Solid Decision

In one of the most important international-law decisions in its history, the Supreme Court on Tuesday restored the Constitution’s prudent balance between politics and law in the quintessentially political arena of foreign affairs. Doing so, Chief Justice John Roberts’s majority opinion concurrently provided individual justice for murder victims, vindication for the rights of states to democratic self-determination, and a searing reminder of why presidential elections — which can chart the high Court’s course for a generation — are crucially important.

The case, Medellin v. Texas, involved the brutal gang-rape murders of two teenagers by a Mexican national, Jose Ernesto Medellin. The defendant confessed to the murders after being given Miranda warnings. Police in Houston, however, neglected to inform him of his right, under the 1963 Vienna Convention on Consular Relations, to have the Mexican consulate notified of his arrest. Medellin was nonetheless vigorously represented by counsel at trial, after which he was duly convicted and sentenced to death. The notification failure was so inconsequential that Medellin’s counsel failed to raise it at trial or on appeal.

Even fundamental constitutional rights — rights whose assertion might actually have made a difference in the outcome — are deemed waived if not asserted in a timely manner. Thus, years later, when Medellin claimed for the first time to have been prejudiced by the lack of consular notification, his habeas corpus petition was summarily rejected by state and federal courts due to his procedural default. Like many countries, however, Mexico objects to the death-penalty. It therefore sued the United States in the International Court of Justice (i.e., the U.N.’s judicial arm) on behalf of Medellin and 50 other Mexican murderers on death-row in states said similarly to have overlooked consular notification obligations.

In its 2004 Avena decision, the ICJ ruled in Mexico’s favor and presumed to direct American courts to reconsider the murder convictions. Two years later, though, in Sanchez-Llamas v. Oregon, the Supreme Court rejected this ICJ directive, holding that the Vienna Convention did not supersede state procedural default rules.

Inexplicably, the Bush administration entered the fray on behalf of the Mexican murderers. President Bush, through a memorandum to thenAttorney General Alberto Gonzales, purported to direct state courts to “give effect to the [Avena] decision.” Armed with the memo, Medellin again pressed for reversal. Again, he was turned away by the courts of Texas.

The Supreme Court’s ruling Tuesday upheld Medellin’s conviction and sentence. Most critically, Chief Justice Roberts’s opinion reaffirmed the presumption that international treaties are not “self-executing.” That is, they are compacts between sovereign states and, unless they specifically provide otherwise, they are to be enforced only through diplomacy and by the accountable actions of the political branches of government. They are not the purview of the judiciary, and thus they may not be enforced through lawsuits brought by private parties who claim to be aggrieved.

While the groans of law professors, activist NGOs, and the rest of the transnational progressive vanguard are deafening, this conclusion is essential to democratic self-governance.

Our federal system requires that laws be made by Congress — not by the president or the courts — within the limitations set forth in the Constitution. As the chief justice explained, there are only two ways treaties create legal obligations that can be enforced in U.S. courts. First, the enforceable obligation can be spelled out in the treaty and thus becomes the supreme law of the land after a two-thirds majority of the Senate consents. Second, if not spelled out, Congress can enact laws which vest individuals with judicially enforceable rights.

Justice Stephen Breyer proposed an alternative scheme, which called for courts to determine, ad hoc and unconstrained by treaty language, which treaties were judicially enforceable and which weren’t. That would be, as Roberts observed, “the equivalent of writing a blank check to the judiciary.” It would also install judges as overseers of foreign affairs, in direct contravention of constitutional principles that wisely entrust those matters to our elected representatives.

Significantly, the high Court also underscored that our elected representatives must hew to their proper constitutional roles. The executive’s role is to enforce the law, not to make it. The majority consequently and quite properly rejected the president’s bizarre attempt to trump state law by an internal administration memorandum. It marks no disregard for the president’s primacy in foreign affairs to insist that it be exercised within its proper boundaries: due deference to Congress’s law-making function and the primacy of states in criminal law enforcement.

As the majority tartly noted, Medellin, his post-sovereign amici, and the dissenting justices were effectively claiming that, under the U.N. Charter and related treaties, the judgments of the ICJ — a foreign tribunal insulated from American political accountability — should automatically override state and federal law. This is something, the chief justice noted, even “basic rights guaranteed by our own Constitution” do not do. Fortunately, a thin five-justice majority on the current court still believes that American sovereignty and American democracy do not abide such a scheme. In Medellin, Bush got the constitutional issues wrong, but the judges he appointed got it right. The next president will decide whether that majority is fortified or disappears.

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