John T. Floyd Law Firm
Houston Criminal Lawyer
"Serious Criminal Defense Throughout Texas"
Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense
Phone # (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com
Top Lawyers for the People - 2008 HTexas
Comments on Criminal Issues
March 27, 2008
MEDELLIN: TEXAS LAW TRUMPS PRESIDENT’S PEN
Houston Criminal Defense Attorney John T Floyd Discusses Medellin v. Texas; United States Supreme Court Devastates Mexican National’s Rights Under Geneva Convention While Simultaneously Limiting Presidential Power
Jose Ernesto Medellin, a Mexican national, took part in one of the most brutal and horrific crimes to have ever occurred in Harris County. A January 8, 2008 column on the John T. Floyd website outlined the facts of the June 24, 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena and Medellin’s role in those murders. There is no need to recount those terrible details in this column.
The United States Supreme Court on March 25, 2008 rejected Medellin’s claim that a decision by the International Court of Justice (“ICJ”), located in the Hague, trumps Texas law and that the President of the United States had the authority to impose that ICJ decision on the states. See: Medellin v. Texas, 552 U.S. ______ (2008) [No. 06-984, Slip Opinion].
THE ICJ JUDGMENT
The ICJ is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member nations. See: Medellin, supra, Slip Opinion at 1.
In 2004 this tribunal issued a judgment in the Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.) [“Avena”] that 51 named Mexican nationals convicted in U.S. state courts were entitled to a review and reconsideration of their convictions and sentences based on violations of the Vienna Convention. Id. The ICJ added that its decision applied regardless of whether these individuals had forfeited their Vienna Convention claims by not raising them in a timely manner as required by state law. Id.
The Avena judgment was based on a decision in 1969 by the United States, upon the advice and consent of the U.S. Senate, to ratify the Vienna Convention and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention. Id., at 2. Article 36 of the Convention provides that if an individual detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detained individual] of his righ[t]” to request assistance from the consul of his own state. Id., at 3. The Optional Protocol provides any disputes arising from either an interpretation or application of the Vienna Convention shall be resolved by the ICJ. Id.
Jose Medellin was arrested at 4:00 a.m. on June 29, 1993. Sometime between 5:54 and 7:23 a.m. Medellin was given his Miranda warnings. He signed a written waiver and gave law enforcement authorities a detailed confession. Law enforcement authorities did not inform Medellin of his Vienna Convention right to notify the Mexican consulate of his detention. Medellin did not raise this issue prior to trial or on direct appeal. Id., at 5.
The Vienna Convention claim was raised by Medellin in his first application for post-conviction relief. The state trial court held that the issue had been procedurally defaulted because Medellin did not raise it prior to trial or on direct appeal. The trial court added that Medellin had failed to “show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment.” Id. The Texas Court of Criminal Appeals upheld that trial court finding. Id., at 5-6.
Medellin thereafter applied for habeas corpus relief in federal court. The U.S. District Court on June 26, 2003 denied relief, finding that the Vienna Convention claim was procedurally defaulted and that Medellin had failed to demonstrate prejudice flowing from the Vienna Convention violation. Id., at 6.
Medellin sought a certificate of appealability from the Fifth Circuit Court of Appeals. While that application was pending, the ICJ handed down the Avena decision. The Fifth Circuit denied Medellin’s certificate of appealability, holding that the Vienna Convention did not confer individually enforceable rights. See: Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004).
Medellin applied to the U.S. Supreme Court for certiorari review. The court granted the certiorari application. See: Medellin v. Dretke, 544 U.S. 660, 661 (2005)(per curiam) [Medellin I]. Before the court could hear the case, President George W. Bush on February 28, 2005 issued his Memorandum to the United States Attorney, which stated:
“I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena] 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.”
The Supreme Court promptly dismissed Medellin’s certiorari application as being “improvidently granted” and sent the case back to the state courts for further proceedings. Id., 544 U.S. at 664.
Medellin launched a second round of post-conviction habeas proceedings in the Texas courts. Both the trial court and the Texas Court of Criminal Appeals rejected these applications as an “abuse of the writ.” The court of criminal appeals was quite explicit in its finding that neither the Avena decision nor the President’s Memorandum were “binding federal law” that could supersede the state’s limitations on filing successive habeas corpus applications. See: Ex parte Medellin, 223 S.W.3d 315, 352 (Tex.Crim.App. 2006).
Medellin sought, and was granted, certiorari review by the U.S. Supreme Court last year. See: Medellin v. Dretke, 550 U.S. ____ (2007).
TREATY LAW INTERPRETATION
In 1998 the U.S. Supreme Court held that Vienna Convention claims are subject to state procedural default rules. See: Breard v. Greene, 523 U.S. 371, 375 (1998)(per curiam). Breard was followed by yet another Supreme Court decision that the kind of Vienna Convention claim decided in the Avena decision did not trump state default rules requiring timely assertion of statutory or constitutional issues. See: Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) [this decision, however, did not involve the individuals named in the Avena judgment].
Medellin, nonetheless, pressed the argument that the Avena decision was a “binding” obligation on state and federal courts in the United States. He reasoned that “by virtue of the Supremacy Clause, the treaties requiring compliance with the Avena judgment are already the Law of the Land by which all state and federal courts in this country are bound. See: Medellin, supra, Slip Opinion at 7-8. He urged the Supreme Court to accept “Avena [as] a binding federal rule of decision that pre-empts contrary state limitations on successive habeas petitions.” Id., at 8.
While the Supreme Court acknowledged that the Avena decision constitutes an “international law obligation” by the United States, it pointed out that some international law obligations do not “constitute binding federal law enforceable in United States courts.” Id. The initial question the Court had to confront, therefore, was whether the Avena decision had “automatic domestic legal effect” which, by its own force, applied to state and federal courts. Id.
The Court turned to the long recognized rule that there is a distinction between treaties that automatically effect law and those that do not, standing alone, function as binding federal law. This rule was first defined by Justice Marshal in 1829 when he wrote that a treaty is “equivalent to an act of the legislature” and, therefore, is “self-executing” when it “operates of itself without the aid of any legislative provision.” Id. The Medellin court then defined “self-executing” to as applying to a “treaty [that] has automatic domestic effect as federal law upon ratification.” Id., at 9, FN 2. Conversely, the court said, a “non-self-executing” treaty does not, standing alone, confer domestically enforceable federal law. Id.
The Supreme Court began its analysis with serious reservations about whether the ICJ even had authority to enforce the Avena decision under the Optional Protocol. The Protocol provides only that disputes arising out of the “interpretation or application” of the Vienna Convention “shall” lie within the compulsory jurisdiction of the ICJ. “The Protocol says nothing about the effect of an ICJ decision,” the Supreme Court noted, “and does not itself commit signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any enforcement mechanism.” Id., at 11.
The only practical enforcement authority for an ICJ judgment can be found in Article 94 of the United Nations Charter. This article attempts to persuade member nations to “undertake to comply” with ICJ decisions. Briefly stated, there is only a commitment to comply. The Medellin court noted that “the Article is not a directive to domestic courts. It does not provide that the United States ‘shall’ or ‘must’ comply with an ICJ decision, nor indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, ‘the words of Article 94 … call upon governments to take certain action.’ … In other words, the U.N. Charter reads like ‘a compact between independent nations’ that ‘depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.’” Id., at 12. [Internal Citations omitted].
ICJ decisions, therefore, must rely upon diplomatic remedies, not judicial remedies, for enforcement in domestic courts. “This was the understanding of the Executive Branch when the President agreed to the U.N. Charter and the declaration accepting general compulsory ICJ jurisdiction” in 1945, the Medellin court pointed out. Id., at 13. The court quoted Leo Paslovsky, Special Assistant to the Secretary of State for International Organizations and Security Affairs, who, in 1945, said: “’{W]hen the [ICJ] has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal.’” Id., at 14.
The Supreme Court was compelled to find Medellin’s argument that ICJ decisions are “automatically enforceable as domestic law” to be fatally flawed under the very enforcement structure of Article 94. The court emphasized that accepting Medellin’s argument “ … would eliminate the option of non-compliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. Those sensitive foreign policy decisions would instead be transferred to state and federal courts charged with applying an ICJ judgment directly as domestic law.” Id., at 15.
Medellin’s argument was further undermined by the ICJ statute itself which was adopted by the U.N. Charter. The primary purpose of the ICJ is to “arbitrate particular disputes between national governments” – not individuals. Article 59 of the ICJ statute explicitly provides that a “decision of the [ICJ] has no binding force except between the parties and in respect of that particular case.” Thus Medellin, as an individual, could not be a ‘party” in the ICJ proceeding that produced the Avena decision. Id., at 15-16.
In a nutshell, the issue resolved in the Medellin case is that international agreements which do not provide implementation procedures for ICJ judgments cannot be enforced in domestic courts, because when “a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking on their own.” Id., at 17. See also: Sanchez-Llamose, supra, 548 U.S. at 347.
Finally, there are 47 nations that are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention. Not one of these nations treat ICJ judgments as binding on their domestic courts. Id., at 20.
PRESIDENT BUSH’S MEMORANDUM
The U.S. Government conceded before the Supreme Court that the Avena decision did not by its own force supersede state procedural default rules. The government, however, argued that the President’s Memorandum, and the Executive authority behind it, were sufficient to “establish binding rules of decision that preempt contrary state law.” Id., at 27.
Writing for the majority, Chief Justice John Roberts was not persuaded by the government’s argument. He pointed out that the President’s authority to act, as with the exercise of any constitutional power, “’must stem either from an act of Congress or from the Constitution.’” Id., at 28 [internal citation omitted]. Although admittedly “compelling,” the Chief Justice was not convinced by the government’s argument that the President’s constitutional role makes him uniquely qualified to “resolve the sensitive foreign policy decisions that bear on compliance with ICJ decisions” and that the need to demonstrate a “commitment to the role of international law” were sufficient to allow the President to act independently in such international matters. Id.
The Chief Justice turned to Justice Jackson’s “tripartite scheme” as the “accepted framework” for evaluating executive action in such matters:
• First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
• Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” In this situation, the President’s authority can drawn from “congressional inertia, indifference or quiescence.”
• Third, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,’ and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”
Id., at 29. See also: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952).
Under this historical guidance, the Medellin court brushed aside the government’s central argument that the relevant treaties created an international obligation to comply with the Avena decision and that the President had the authority to impose the decision on domestic law to maintain its standing in the world community. The court stated:
“The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress … As this Court has explained, when treaty stipulations are ‘not self-executing they can only be enforced pursuant to legislation to carry them into effect.’ … Moreover, ‘[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.’
“The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to ‘make’ a treaty. Art. II, §2. If the Executive determines that a treaty should have domestic effect of its own force, that determination may be implemented ‘in mak[ing]’ the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, consistent with all other constitutional restraints.” Id., at 30-31.
President George W. Bush has probably acted in a more unilateral fashion than any president in American history – certainly in modern history. He has issued secret, and non-secret, orders with only casual regard for the interests of Congress. He has implemented executive policies with reckless abandon in direct conflict with the traditional constitutional rule of law. The Bush administration has authorized torture, secret prisons, kidnappings, and assassinations in the President’s unilateral declaration of “war on terror.”
While Medellin will have a devastating impact on the 51 Mexican nationals involved in the Avena decision, the decision at least restores some sanity to the constitutional rule of law by reigning in President Bush’s unilateral decision-making. The rule is the Congress makes laws while the President executes them. For the past six years President Bush and his Neo-Con legal advisers have operated under the reverse mindset – the President makes law and Congress executes them. Four More Years? Thank Goodness NO!
[ Back to top ]
