Lewis & Clark Law Review Symposium on Treaties and Domestic Law After Medellin v. Texas

The latest issue of the Lewis & Clark Law Review features four articles based on the U.S. Supreme Court’s 2008 decision in Medellín v. Texas. Ingrid Wuerth (Vanderbilt) questions the Court’s application of Presidential powers under Youngstown to the controlling legal issue of treaty interpretation. Paul B. Stephan (University of Virginia) explores the role of comity in states’ compliance with the judgments of the International Court of Justice and the failure of the U.S. Supreme Court to address delegations to the Executive. Specifically, he discusses what is required for a treaty to give the President unilateral authority to make domestic law. John T. Parry (Lewis & Clark) offers a primer on treaties and 42 U.S.C. 1983, which governs civil actions for the deprivation of rights. He argues that treaties and statutes should be treated the same under §1983. Lastly, Scott W. Lyons (Acting Director of Programs, ASIL) explores the limitations of remedies for treaty violations and argues that unilateral, self-help measures may be increasingly sought by other countries in the absence of stronger enforcement measures of ICJ decisions.

The full text of the articles is available online for free.

Medellin: The New, New Formalism?

by Ingrid Wuerth, Professor, Vanderbilt University Law School
Bluebook citation: Ingrid Wuert, Medellin: The New, New Formalism?, 13 Lewis & Clark L. Rev. 1 (2009).

The Supreme Court’s 2008 decision in Medellín v. Texas appears to represent a formalist turn in the Court’s approach to foreign relations cases. The opinion emphasizes text as the key to treaty interpretation and it stresses the importance of the Constitution’s specific law-making procedures. But the opinion does not deliver on its formalist promises. Emphasis on treaty text is undermined by the Court’s insistence that the text reflects the intentions of the U.S. treaty-makers, a questionable proposition with respect to the issue of domestic implementation raised by the case, and one that will raise serious interpretative difficulties down the road. Most significantly, however, the opinion is saddled with an unnecessary and unconvincing application of Justice Jackson’s tripartite Youngstown framework. The Court concludes that the President’s effort to implement the treaty falls within the third category, but the indicia of congressional intent that the Court relies on are weak, and the analysis works a substantial expansion of this category. Moreover, as the Court frames the issue—one of treaty interpretation—it is unclear why Youngstown should apply at all.

Open Doors

by Paul B. Stephan, Lewis F. Powell, Jr. Professor of Law and Elizabeth D. and Richard A. Merrill Research Professor, University of Virginia
Bluebook citation: Paul B. Stephan, Open Doors, 13 Lewis & Clark L. Rev. 11 (2009).

This Article focuses on two issues left open by Medellín v. Texas. First, do the courts of the United States have an obligation to accord comity to judgments of international tribunals such as the International Court of Justice? Second, is it possible to construe a treaty as delegating lawmaking authority to the Executive Branch, and if so, what are the criteria for determining that a delegation is intended? The Article argues that the comity doctrine rests on principles of reciprocity and discrimination, and that such principles generally are inapplicable to a treaty-based international tribunal. The Article further argues that the Medellin majority failed to address the delegation issue, and that strong arguments exist for inferring delegations from particular treaty provisions. In particular, it is plausible to infer, from a treaty commitment to submit a matter to binding dispute settlement by an international tribunal, a limited delegation to the Executive of discretionary authority to take necessary steps to bring the United States into compliance with the tribunal’s judgment.

A Primer on Treaties and § 1983 after Medellin v. Texas

by John T. Parry, Professor of Law, Lewis & Clark Law School
Bluebook citation: John T. Parry, A Primer on Treaties and § 1983 after Medellin v. Texas, 13 Lewis & Clark L. Rev. 35 (2009).

The majority opinion in Medellín v. Texas contains a number of statements to the effect that treaties are not equal to federal statutes and that courts should presume that treaties do not create private rights. This Article analyzes the impact of those statements on the ability of plaintiffs to bring actions under 42 U.S.C. § 1983 for the enforcement of treaty rights. Because there has been no comprehensive assessment of whether § 1983 applies to treaties at all, however, the Article first considers the textual, precedential and policy-based arguments on that issue, and it concludes that § 1983 should include treaty-based claims. Turning to Medellin, the Article discusses and criticizes the ways in which the decision creates problems for treaty claims, and it argues that treaties and statutes should receive similar treatment under § 1983.

Breach Without Remedy in the International Forum and the Need for Self-Help: The Conundrum Resulting from the Medellin Case

by Scott W. Lyons, Acting Director of Programs, American Society of International Law
Bluebook citation: John T. Parry, Breach Without Remedy in the International Forum and the Need for Self-Help: The Conundrum Resulting from the Medellin Case, 13 Lewis & Clark L. Rev. 73 (2009).

The Supreme Court decision in Medellin v. Texas has created considerable doubt as to what methods exist for remedying breaches of treaty-based obligations. In Medellin, the Court acknowledged there was a violation of the Vienna Convention on Consular Rights (VCCR), yet did not find that this breach led to a remedy for Mr. Medellin or others similarly situated. This Article examines the current uncertainty surrounding available remedies for breaches in VCCR treaty obligations. Review of the strategies employed by the United States and Mexico to prevent irreparable breaches of the VCCR demonstrates these methods were insufficient. More significantly, the traditional options for redress for an irreparable breach are limited in availability to Mexico, demonstrating the limitations of international law in remedying these types of breaches. The Article explores unilateral self-help measures that states like Mexico may employ to seek redress, suggesting that these may be the only available remedies after Medellin.

About the Lewis & Clark Law Review

The Lewis & Clark Law Review is a general-purpose law review. In June 2005, Lewis & Clark Law Review adopted “open access” principles, which facilitates the sharing of scholarly knowledge. Current and archived articles dating back to Spring 2005 are available online for free. Printed subscriptions are also available. Unless indicated otherwise, college and university professors may distribute copies of the articles to students for classroom use. For full details about copyright permissions, see the website. The journal accepts articles, analyses, and book reviews.

Before Spring 2005, the volumes were published under the name: Journal of Small & Emerging Business Law.

• Lewis & Clark Law Review

Inside Justice

• Executing Medellín (August 2008)
  Background information on: the legal issues, Article 36 of the Vienna Convention on Consular Relations (VCCR), the Avena judgment by the ICJ, Medellín’s petition to the Inter-American Commission on Human Rights, attempts at U.S. legislation, Medellin’s crime, and additional resources.

Medellín v. Texas Case Materials

• U.S. Constitution
• Medellín v. Texas, 552 U.S. ___ (2008) (finding that the United States is obligated to comply with Avena but asserting that this obligation requires action by Congress to give effect to the non-self-executing treaty).
• Amicus Curiae, U.S. President Bush statement stating the U.S. had a binding obligation to comply with Avena, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928)
• Medellín v. Dretke, 544 U.S. 660 (2005) (per curiam).
• Medellin v. Cockrell, No. H-01-4078 (S.D. Tex. April 17, 2003) (denying certificate of appeal in federal court because there was adequate and independent state procedural ground used by state courts; holding that there was no remedy, and, even if the Vienna Convention on Consular Relations created an individual right, that right was barred by prior a U.S. Supreme Court decision on criminal sentences).
• Ex parte Medellín, 223 S.W.3d 315 (Tex. Crim. App. 2006) (holding that the Avena Judgment and the U.S. President’s recognition of the international obligation did not constitute preemptive federal law).
• Ex parte Medellin, No. AP-75, 207 (Tex. Crim. App. Nov. 15, 2006) (dismissing writ of habeas corpus).
• Ex parte Medellin, No. 5019-01 (Tex. Crim. App. Oct. 3, 2001) (not designated for publication).
• Medellin v. State, No. AP-71,997 (Tex. Crim. App. Mar. 19, 1997) (not designated for publication).