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Medellin, Avena, the supremacy of treaties, and relevant executive authority.

I. TREATY-BASED OBLIGATIONS OF THE
 UNITED STATES 302
 A. Obligations of the United States Under the
 United Nations Charter 302
 B. The Avena Judgment of the International Court
 of Justice 306
II. EXECUTIVE EXECUTION 307
 A. The President's Decision 307
 B. The Legal Status and Effect of the Presidential
 Decision 308
III. CONSTITUTIONAL REQUIREMENTS AND
 AUTHORITY 311
 A. The Article II, Section 3 Presidential Mandate
 and Executive Execution 311
 B. The Supremacy of Treaties 315
 C. The Lack of Any Competing or Inhibiting State
 Authority 318
 D. Preemption 324
 E. State Power to Comply Exists 326
 F. The Medellin Majority's Improper Tests for
 Self-Execution 328
IV. NO INHIBITING FEDERAL LEGISLATION EXISTS 330
V. CONCLUSION 331


The case of Medellin v. Texas, (1) decided recently by the Supreme Court of the United States, had raised questions of whether the President of the United States has constitutional authority to faithfully execute treaties of the United States with or without the approval of Congress, and whether treaties of the United States, as well as executive implementary measures, are binding on the states under the Supremacy Clause of the United States Constitution. (2) The majority opinion of Chief Justice Roberts decided against such presidential authority with respect to the implementation of a judgment of the International Court of Justice. As noted below, I respectfully disagree and would answer the questions in the affirmative. Indeed, the express mandate of the Supremacy Clause is reason enough to ensure that the judgment of the International Court of Justice (ICJ) in this case, as an outcome and part of binding treaty processes, must prevail within the states of the United States.

I. TREATY-BASED OBLIGATIONS OF THE UNITED STATES

A. Obligations of the United States Under the United Nations Charter

The majority opinion in Medellin made a pivotal error when it disagreed, but it is otherwise well understood that under Article 94 of the United Nations Charter, the United States has an absolute obligation "to comply with the decision of the [ICJ] in any case to which it is a party." (3) Further, under Articles 59 and 60 of the Statute of the ICJ, (4) which is incorporated by reference into, and as a necessary part of, the UN Charter, (5) a judgment of the ICJ has "binding force" and "is final and without appeal." (6) Merely one possible sanction response against a state that "fails to perform the obligations incumbent upon it under a judgment rendered by the Court" can involve sanctions authorized or mandated by the UN Security Council.? Whether or not the Security Council issues relevant sanctions, the state party to an ICJ judgment clearly remains bound thereby. Therefore, it is undeniable that under treaty law of the United States, the United States has an absolute obligation "to comply" and to perform "the obligations incumbent upon it under a judgment rendered" by the ICJ. (8) At some point, the manifest and pivotal error of the majority opinion should be abandoned and the true meaning of the treaty allowed to prevail. (9)

Further, the U.S. Supreme Court has recognized in other cases that the decision of an international tribunal, as the outcome of a treaty process, is a binding, "conclusive" treaty obligation that is "not re-examinable" in U.S. courts. (10) In our democracy, whether or not the benefits for the United States outweigh the burdens with respect to such forms of binding international decision making is a question for the political branches and not for the judiciary. As long as the United States permits the ICJ to issue a binding judgment in a case to which it is a party, it remains bound by the judgment of the ICJ. As the Supreme Court declared more generally, "we administer the public law of nations, and are not at liberty to inquire what is for the particular advantage or disadvantage of our own or another country." (11) Lacking such legitimacy, there is nothing for a domestic court to weigh, quarrel with, or compare with respect to binding ICJ judgments. Moreover, there is no judicial authority to limit binding judgments that are the outcome of a binding treaty process by using some sort of discretionary comity-factors analysis that courts might use with respect to the receipt of foreign domestic judgments that are admittedly not binding within the United States.

However, the fact that a judgment of the ICJ is binding on a state party as a matter of treaty law involves a different point than the answer to the question whether an interpretation of a treaty in a case to which the state is not a party is binding. (12) Interestingly, U.S. courts have often used Permanent Court of International Justice and ICJ opinions, in both contentious cases and advisory opinions, as legally relevant aids for interpretation of the content of international law. (13)

B. The Avena Judgment of the International Court of Justice

In the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), (14) the judgment of the ICJ concluded that the United States had violated Article 36 of the Vienna Convention on Consular Relations (VCCR) (15) in several ways, including by the failure "to inform detained Mexican nationals of their rights" under Article 36(1)(b) of the Convention and "to notify the Mexican consular post of the detention" of such persons. (16) Noting that Article 36(2) of the treaty requires the United States to give "full effect" to rights accorded in the article, the ICJ ruled that U.S. courts, as part of a "judicial process," must provide a judicial remedy of "review and reconsideration" of the convictions and sentences of the fifty-one Mexican nationals named in the judgment."

II. EXECUTIVE EXECUTION

A. The President's Decision

On February 28, 2005, President George W. Bush issued a "Memorandum for the Attorney General" on the subject of "Compliance with the Decision of the International Court of Justice in Avena." (18) The Memorandum declared that the President had "determined ... that the United States will discharge its international obligations under the decision of the International Court of Justice" in the Avena case (19) "by having State courts give effect to the decision in accordance with general principles of comity...." (20) Thereafter, the U.S. Attorney General notified states within the United States of the President's decision by mailing copies of the Memorandum to various state officials, including the Attorney General of the State of Texas. (21)

B. The Legal Status and Effect of the Presidential Decision

One interesting question concerning the President's determination that state courts will "give effect to the ICJ judgment in accordance with general principles of comity" is whether the determination constitutes a presidential directive or "merely confirmed that the United States would comply" with the ICJ judgment. (22) Addressing this issue, the Brief for Petitioner Medellin before the Supreme Court stated that the Memorandum operated as a "determination that state courts must provide the required review and reconsideration" of relevant domestic decisions concerning the fifty-one Mexican nationals named in the ICJ judgment, since this is what the ICJ decision required; (23) that the President "acted to give effect to the Nation's obligation, under duly ratified treaties, to abide by the Avena judgment"; (24) and that the President "directed that state courts, in cases brought before them, apply existing federal treaty law as a means of carrying that law into effect." (25) The Brief, however, also stated that the President "prescribed no new rules," (26) "did not make law," (27) "merely confirmed that the United States will comply" with the Avena judgment, (28) and "confirmed that the Avena judgment must be given effect in state courts." (29) The Brief also quoted an Amicus Brief of the United States in the Fifth Circuit as having set forth the executive view that a consequence of the President's Memorandum is that "'the 51 named individuals may file a petition in state court seeking ... review and reconsideration ['of their convictions and sentences'], and the state courts are to recognize the Avena decision.'" (30)

The Brief for Respondent, the State of Texas, argued that the Memorandum should be characterized as a communication to the states, but "as a request, not a command," (31) Yet, the Texas brief also recognized that "the Presidential Memorandum purports to require the state courts to conduct a review," (32) the overall "executive action purports to direct state courts," (33) and the Memorandum "direct[s] state courts to revisit claims" and "orders those courts" to do certain things. (34) Similarly, the plurality opinion of the Texas Court of Criminal Appeals in this case assumed that the Memorandum "constituted an executive order requiring Texas's compliance." (35)

In view of the above, it is clear that in order to comply with the ICJ judgment, the President made a determination that state courts must "give effect to the decision" of the ICJ in Avena. (36) In context, it is also clear that this must be done by providing review and reconsideration of relevant convictions and sentences, because this is what is required "to give effect to" the judgment of the ICJ in Avena. It is evident, therefore, that the President's determination contained in his Memorandum, coupled with the notifications by the U.S. Attorney General, operated (1) as a notification and directive that state courts comply with the judgment of the ICJ in the Avena case by providing relevant review and reconsideration, and (2) as a directive executing any relevant treaty and the judgment of the ICJ (which was an outcome of two treaty processes for the settlement of international disputes, i.e., the United Nations Charter and the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes). In this sense, the President's determination and directive operated like an executive order for at least these two primary purposes: (1) as a directive to comply, and (2) as an executing measure. The directive should operate as part of treaty processes over which the President has relevant constitutional powers and, in this sense, operate as a treaty-executive directive. (37(

III. CONSTITUTIONAL REQUIREMENTS AND AUTHORITY

A. The Article 11, Section 3 Presidential Mandate and Executive Execution

Article II, Section 3 of the United States Constitution expressly mandates that the President "shall take Care that the Laws be faithfully executed." (38) The Founders, Framers, and the judiciary have consistently recognized that "the Laws" that the President must faithfully execute include treaties of the United States. (39) This constitutionally-based mandate leaves no discretion with the President whether to faithfully execute the laws, but it can leave some discretion with respect to the means available to faithfully execute the laws, assuming that the relevant laws do not dictate use of a particular method of enforcement.

This constitutional duty to faithfully execute the laws also enhances presidential authority to do so. (40) In other words, the very duty to execute laws provides a constitutionally-based competence to execute the laws.

As Alexander Hamilton affirmed:
 [The Executive] is charged with the execution of all laws, has a
 duty to enforce the laws.... It is consequently bound ... [and
 since] Our Treaties and the laws of Nations form a part of the law
 of the land, [the President has both] a right, and ... duty, as
 Executor of the laws ... [to execute them]. (41)


John Marshall, when in the Congress in 1799, clearly agreed:
 He is charged to execute the laws. A treaty is declared to be a
 law. He must then execute a treaty, where he ... possesses the
 means of executing it ... [and he] is accountable to the nation for
 the violation of its engagements ..., and for the consequences
 resulting from such violation ... it seems the duty of the
 Executive department to execute the contract by any means it
 possesses. (42)


Similarly, an early Opinion of the Attorney General affirmed:
 The President is the executive officer of the laws of the country;
 these laws are not merely ... treaties of the United States, but
 those general laws of nations.... This obligation becomes one of
 the laws of the country; to the enforcement of which, the
 President, charged by his office with the execution of all our laws
 ... is bound to look. (43)


The Supreme Court has also recognized that the duty to enforce international law can enhance executive authority to do so. (44) In one such case, the Supreme Court noted:
 The location of the lands became a duty devolving on the President
 by the treaty. This duty he could execute without an act of
 Congress; the treaty, when ratified, being the supreme law of the
 land, which the President was bound to see executed.... (45)


Other federal and state court cases have long recognized the President's duty and authority to execute treaties. (46) It is as tounding that the majority opinion in Medellin pays no attention to any of these cases (seven of which are Supreme Court cases), the 1822 Opinion of the Attorney General, and the above-mentioned views of the Founders and Framers. To imply that the President does not "make" law (47) (which is clearly not true in the case of treaties (48) or presidential executive agreements (49)) should not be determinative with respect to whether the President can execute even a non-self-operative law. As noted, a panoply of recognitions in other cases demonstrates that the President can do so with respect to treaties and, contrary to the majority opinion in Medellin, that the President can "unilaterally execute a non-self-executing treaty by giving it domestic effect" (50) or by making executing choices that can have domestic legal effect.

In this case, the President had a constitutionally-based duty to assure that there would be compliance with the judgment of the ICJ in the Avena case, since, under the United Nations Charter, the United States had a treaty-based duty to comply and, under the Constitution, the President had a duty faithfully to execute the treaty-based duty. The Avena judgment, as an outcome of the treaty process, had required that U.S. courts provide review and reconsideration of the relevant convictions and sentences "by means of its own choosing," (51) and the President chose to faithfully execute that treaty -based obligation by issuing a presidential determination and directive to various states that such compliance occur "by having State courts give effect to the decision." (52) As noted above, the President's directive should have operated as an Executive directive to the states to comply and as an Executive executing measure. As noted below, under the Constitution the states had a duty to comply in any event, but the President also chose the means for faithful execution of our treaty obligation by having state courts give effect to the Avena judgment and, therefore, his directive should have operated also as an Executive measure for executing the outcome of a treaty process, i.e., a measure for executing the requirements set forth in the Avena judgment.

B. The Supremacy of Treaties

Whether one is a "textualist," an "originalist," or merely attentive to constitutional text and history, it is undeniable that treaties are supreme law of the land binding on the states and, thus also, the state judiciary. The express mandate set forth in the text of the Constitution could not be more clear: "all Treaties ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (53) Necessarily, treaties have an impact on state judicial power and state judges are bound by treaty law. Furthermore, as the Constitution expressly mandates, "all" treaties are supreme law, not some of them, only self-executing treaties, (54) or only those executed in part by executive or congressional action. To decide otherwise would be to attempt to rewrite the text of the Constitution, to ignore overwhelming views of the Founders and Framers concerning the primacy of all treaties, (55) and to ignore the constitutional design and predominant trends in judicial decisions. (56) With respect to the United Nations Charter in particular, Justice Murphy recognized that a state statute that "stands as a barrier to the fulfillment of" a United States obligation under the UN Charter was overridden and, with respect to supremacy, that "[i]ts inconsistency with the Charter ... [was] but one more reason [in addition to preemption (57)]why the statute must be condemned." (58)

The same approach should have been followed in this case and hopefully the Court will revisit this issue in the future. In addition to preemption, the Supremacy Clause of the U.S. Constitution expressly mandates that U.S. obligations under all treaties, thus including the UN Charter, prevail over any inconsistent state law. In fact, the Charter-based obligation to comply with the judgment of the ICJ in this instance is a constitutionally-based obligation of the states, including "the Judges in every State," (59) whether or not the Executive has engaged in any measure to more adequately assure faithful execution. (60) If the President had not chosen the means for faithful execution in this case (i.e., "by having State courts give effect to the decision" of the ICJ (61)), state judges still would have been bound by the outcome of the treaty process to give effect to the decision, although, per terms of the Avena judgment, they would choose among conforming "means" for mandated court "review and reconsideration." In a sense, when the President directed that state courts comply with the mandate of the ICJ judgment and do so "in accordance with general principles of comity," (62 the apparently left some minimal conforming discretion in the state courts--not to ignore the mandate of the Avena judgment or to avoid its implementation (which under the Constitution state judges cannot do), but to implement it "in accordance with general principles of comity." Conforming discretion would have to be minimal because the President has no discretion to avoid his constitutional duty to faithfully execute treaty law, the President determined that the United States "will discharge ... international obligations under the decision," (63) and under the Supremacy Clause, state judges are unavoidably bound to do the same.

In my opinion, the Executive conduct in this instance did not result in an impermissible affront to state judicial power because state judges were already bound under the Constitution by the outcome of a treaty process and, after the President's directive, the state courts are left basically where they had been without his directive, i.e., with a minimal conforming discretion to choose appropriate means for review and reconsideration of convictions and sentences of the Mexican nationals named in the ICJ judgment. The states are also left in this same position after the Supreme Court's decision in Medellin because of the express mandate of the Supremacy Clause that "all" treaties are supreme law for supremacy purposes. (64) Additionally, as the Brief for Petitioner argued, the President "has the undoubted authority to sue to achieve the same result." (65)

C. The Lack of Any Competing or Inhibiting State Authority

Under the Tenth Amendment to the United States Constitution, after the formation of the Constitution any remaining state powers or aspects of sovereignty were expressly limited to (1) those "powers not delegated to the United States by the Constitution," and (2) those powers that are not "prohibited by it to the States." (66) The treaty power was expressly delegated to the United States in Article II, Section 2 (i.e., the President "shall have Power, by and with the Advice and Consent of the Senate to make Treaties") and Article III, Section 2 (i.e., "[t]he judicial Power shall extend to all Cases ... arising under Treaties"). The treaty power was also expressly prohibited to the States in Article I, Section 10 (i.e., "[n]o State shall enter into any Treaty."). Additionally, the text of the Constitution clearly and unavoidably mandates that "all" treaties are supreme law of the land binding the states and the state judiciary. (67) As Supreme Court cases have long recognized, there is therefore no competing or inhibiting power of the states. (68) Indeed, with respect to treaty law, "the Tenth Amendment is no barrier" (69) and "whatever is within ... [the] scope [of the treaty power] is not reserved to the states [and] the Tenth Amendment is not material." (70) As one federal court recognized in 1880:
 There can be no mistaking the significance or effect of these
 plain, concise, emphatic provisions. The states have surrendered
 the treaty-making power to the general government, and vested it in
 the president and senate; and, when duly exercised .... the treaty
 resulting is the supreme law of the land, to which not only state
 laws but state constitutions are in express terms subordinated.
 (71)


No nonconforming theoretic construct (72) or revisionist professorial preference can rightly avoid the textual strictures of the Constitution in this regard. The textual strictures are reason enough to preempt invitations to engage in judicial reconstruction of the Constitution in the name of an alleged federalism that was not chosen.

As the Supreme Court has rightly affirmed, "treaties of course 'are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States'" (73) and treaties can reach "matters which in ... [their] silence ... the State may regulate." (74) With respect to matters that "usually fall within the control of the State," "a treaty may override its power." (75) Indeed, a treaty is "obligatory" domestically and "must necessarily control all acts issuing from the inferior authority which might contravene it" (76) (i.e., the state, including unavoidably the state judiciary (77)). As one federal court recognized, "the treaty furnishes the law, and with that treaty no state or municipal corporation thereof can interfere. Admit the wedge of state interference ever so little, and there is nothing to prevent its being driven home and destroying the treaty-making power altogether." (78)

For these reasons, generations of federal and state judges have consistently recognized the overriding domestic reach of treaty-based law and law radiating from other international agreements to matters that otherwise might have been the prerogative of the state, such as state court criminal jurisdiction and criminal law, (79) state court criminal proceedings, (80) state statutes of limitation, (81)", state rules of evidence, (82) other state procedural laws regarding access to courts and remedies, (83) state personal injury laws and workmen's compensation, (84) state family law, (85) title to and use of land and leases, (86) control of water, (87) title to personalty located in the state, (88) control of debts, (89) police power based control of local businesses and employment, (90) state power of exclusion and detention of persons and the alleged necessity to seize persons in order to protect state security, (91) contract bidding, (92) state registration of persons for employment and vehicle registration and driver's licenses, (93) state taxes, (94) and inheritance. (95) As one state court opinion declared, "[t]hus, under the treaty power, the President may make determinations that affect the powers normally reserved to the State." (96) Additionally, treaties can enhance the power of Congress to reach matters that states might otherwise regulate. (97)

Since Medellin involves the State of Texas, it is particularly fitting to consider what two earlier Texas cases had declared while recognizing the supremacy of treaties in criminal cases. In Dominguez v. State, (98) the Court of Criminal Appeals of Texas recognized when reversing a criminal conviction:
 it is the duty of the courts of the state to take cognizance of,
 construe and give effect to the treaties of the federal government
 ... and ... under a proper construction of the treaty with Mexico
 the defendant could not be legally called upon to answer any other
 crime save that for which he was extradited. (99)


In Blandford v. State,loo the Court of Appeals of Texas provided even more relevant guidance when reversing a criminal conviction:
 That the judiciary of this State not only has the right, but is
 sworn to take cognizance of and give effect to treaties, cannot be
 questioned. [quoting U.S. Const., art. VI, cl. 2] [Treaties are]
 ... living laws, operating and binding the judiciary of this State
 ... just as if they composed a part of our Criminal Code. Indeed,
 they stand ... upon higher ground ... for . . . all treaties made
 ... must of necessity be supreme. Hence in case of conflict State
 Constitutions and acts of the Legislature must yield ... [T]he
 judiciary of this State is bound to take notice of and enforce
 treaties ... If ... a treaty inhibits the doing of a certain thing,
 no legislative or executive action is required to authorize the
 courts to decline to override these limitations or restrictions [in
 the treaty], "for the palpable and all-sufficient reason, that to
 do so would be ... to transgress the supreme law of the land."
 (101)


In this case, the State of Texas argued that the President's determination and directive "infringes on the sovereignty of the States," (102) but Supreme Court opinions have long recognized that there are no competing or inhibiting sovereign powers of the states with respect to the reach of treaty law (103) and whatever had previously been a matter of state concern or within its sphere can be overridden by the reach of treaties. (104) The text and structure of the Constitution require this result. (105)

In Ex parte Medellin, (106) the plurality opinion in the Texas Court of Criminal Appeals had claimed that the President "cannot dictate to the judiciary what law to apply," (107) but the claim misses the point that it is the Supremacy Clause of the United States Constitution that expressly reaches state judicial power and dictates to the state judiciary what law to apply. Given the President's unavoidable constitutional duty and competence to faithfully execute the laws, presidential measures to execute treaty law should have an authority similar to the authoritative reach of treaty law under the Supremacy Clause. (108)

D. Preemption

In addition to the primacy and reach of treaty law under the Supremacy Clause of the Constitution, federal and state courts have recognized that the primacy of international agreements, and even the policies evidenced in the agreements, can be confirmed under the doctrine of federal preemption. (109) An example of the broad reach of international agreements was articulated by the Supreme Court in United States v. Pink, (110) when the Court declared that "state law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty" (111) and that state law could not prevail when its enforcement "would collide with and subtract from the Federal policy." (112) "[E]ven in absence of a treaty, a State's policy may disturb foreign relations" and be preempted. (113) The Supreme Court's opinion in Zschernig used two tests for federal preemption (either one of which suffices): (1.) when state law or policy intrudes into foreign affairs with more than some incidental or indirect effect, and (2) when there is a "great potential for disruption or embarrassment." (114)

In this case, the President's determination and directive should have had primacy in view of his primary power to assure settlement of international disputes in accordance with treaty obligations, his power to execute treaty obligations, and his more general foreign affairs power. (115) Using the Supreme Court's tests articulated in Zschernig, it is evident in this case that inconsistent state law and policy would seriously intrude into foreign affairs with significant adverse effects, and that there is a great potential for disruption or embarrassment to the United States if state courts do not effectuate the decision of the ICJ in Avena. With respect to recognitions in Pink, it is clear that inconsistent state law and practice would impair the policy and provisions of treaty law of the United States and would collide with and subtract from vital federal policy. In the United States Brief as Amicus Curiae in Dretke, the executive declared that the United States has a "paramount interest ... in prompt compliance." (116) More particularly, "[c]onsular assistance is a vital safeguard for Americans abroad" and "unless the United States fulfills its international obligation to achieve compliance with the ICJ Avena decision, its ability to secure such assistance could be adversely affected." (117) In view of the above, it seems that preemption should necessarily be assured. Moreover, the foreign policy interest of the United States in protecting this "vital safeguard for Americans abroad" happens to implicate an important power of the President to protect U.S. nationals abroad. (118) His choice in that regard should also preempt inhibiting state power.

E. State Power to Comply Exists

Although state courts cannot inhibit the operation of the ICJ judgment in Avena, they are not preempted from fulfilling the judgment and have the general capacity to do so. Indeed, the ICJ judgment allows the United States to make a choice with respect to the means for fulfillment of the requirement that certain Mexican nationals be provided "review and reconsideration" of their convictions and sentences, and the President has chosen the general means for fulfillment of the judgment by expressly directing that "state courts ... [will] give effect to the decision." (119) Therefore, state courts are not preempted from giving effect to the decision or fulfilling the judgment of the ICJ. Moreover, the President's directive to give effect to the decision leaves a conforming discretion in the state courts, because the ICJ judgment left a conforming discretion in the United States to choose relevant means for the required review and reconsideration of convictions and sentences and the President's directive left room for a conforming discretion among state courts to choose relevant means for review and reconsideration. (120) Clearly, therefore, they are not preempted from doing so.

More generally, state courts have the power to implement treaty law of the United States as long as their conduct is not preempted. This power exists precisely because state courts are bound by treaty law as supreme law of the land. (121) As the Restatement notes:
 Questions under international law or international agreements of
 the United States often arise in State courts. As law of the United
 States, international law is also the law of every State, is a
 basis for the exercise of judiciary authority by State courts, and
 is cognizable in cases in State courts. (122)


Although not directly involved in this case, so-called federal clause understandings attached to U.S. instruments of ratification of other treaties provide a competence for state implementation of the treaties that should survive challenges under the doctrine of federal preemption. (123) For example, the U.S. understanding concerning the International Covenant on Civil and Political Rights expressly declares that the Covenant "shall be implemented ... otherwise by the state and local governments ... to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the" Covenant. (124) Article 50 of the Covenant actually mandates that all of "[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions," (125) and the U.S. had no reservation with respect to the reach of Article 50 and, therefore, it is fully operative to enhance state competence to implement the treaty. (126)

F. The Medellin Majority's Improper Tests for Self-Execution

Although it should not have been relevant because the Supremacy Clause expressly and unavoidably requires that all treaties are supreme law for supremacy purposes, the majority opinion in Medellin used improper tests for self-execution. Ignoring the Court's own cases, the majority stated that five court of appeals decisions "have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary." (127) Those presumptions are clearly in error.

As Justice Miller affirmed in Edye v. Robertson, (128) a treaty is self-operative "whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined." (129) In 1809, Chief Justice Marshall had recognized such an implied rights test when declaring that "[w]henever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states." (130)

At one point, the majority opinion in Medellin stated that treaties are self-executing "when the textual provisions indicate that the President and Senate" so intended. (131) This is not the test. The test involves attention to the text of the treaty in light of the treaty's context and object and purpose (132) and can include inquiry with respect to the probable intent (express and implied) of its creators (133) as well as in light of other international law (134) and subsequent international practice and expectations. (135) The test is not what the government of one party to a multilateral treaty had in mind, much less the relatively hidden discussions among domestic participants in one state party. (136) Moreover, there is a presumption that all treaties are self-executing unless a contrary intent of the creators is manifest in the terms of the treaty. (137) Further, as recognized in Supreme Court cases, if a treaty expressly or impliedly confers rights on individuals, it is self-executing. (138) Additionally, the word "shall" and other relatively mandatory terms typically provide self-executing status. (139)

IV. NO INHIBITING FEDERAL LEGISLATION EXISTS

The Brief for the State of Texas raises the Antiterrorism and Effective Death Penalty Act (AEDPA) (140) as an indication of general congressional policy to place limitations on federal oversight of state criminal proceedings and a specific limit with respect to federal habeas proceedings, which are admittedly not involved. (141) First, the AEDPA is not directly relevant to the issues raised before the U.S. Supreme Court in this case and does not address presidential powers to direct compliance with treaty law or to execute treaty obligations, Second, even if it had been, there is no clear and unequivocal expression of congressional intent in the AEDPA to override any treaty that is relevant in this instance, and the Supreme Court has often ruled that this is a required circumstance before one can attempt to apply the last-in-time rule in the case of an unavoidable clash between a federal statute and a treaty, (142) and it is only one of the steps within a five-step process to be used by the judiciary when conflicts might otherwise seem evident. (143) As Professor Lori Fisler Damrosch has stressed, no such legislation has "purported to countermand the Vienna Convention," (144) much less the UN Charter. Third, even if the last-in-time rule had been applicable, there is a traditional exception to the rule that is well-documented in Supreme Court and other federal cases that assures the primacy of "rights under" a treaty over a subsequent federal statute. (145) In this instance, Article 36 of the VCCR clearly confers relevant "rights under" the treaty to individuals (146) and such rights are a concomitant part of the ICJ judgment that is binding under the UN Charter. Fourth, the AEDPA does not deny constitutionally-based rights to habeas corpus, (147) and under our Constitution, treaty-based rights are also, constitutionally-based.

V. CONCLUSION

As this article demonstrates, the Avena judgment of the International Court of Justice is binding on the United States under the United Nations Charter. As the outcome of a treaty process, under the United States Constitution the judgment is also binding more particularly on the President of the United States as well as the judiciary of the various states of the United States. In this instance, the President has issued a Memorandum requiring compliance with the Avena judgment that has served as a notification and executive directive that state courts give effect to the ICJ judgment and as an executive directive executing any relevant treaty and the judgment of the ICJ. Since the ICJ judgment allowed the United States to fulfill the judgment's mandate that there be review and reconsideration of certain criminal convictions and sentences "by means of its own choosing," there was a choice to be made on behalf of the United States with respect to the means for fulfillment. The President made that choice, but the majority of the Court in Medellin concluded that the President's choice was not binding law within our domestic legal processes due in part to a manifest misinterpretation of provisions of the United Nations Charter and the Statute of the ICJ. The Supreme Court should revisit the issue concerning proper interpretation of the obligation of the United States under the treaty, especially in view of the well understood effect of words such as "comply," "final," "obligations incumbent," and "binding force."

As noted in this article, the President is not only bound by treaty law of the United States, but also has a concomitant constitutional competence to faithfully execute relevant treaty law, and his decision should have the force and effect of law. The Court should also revisit the question concerning relevant Executive power to execute treaties in view of several other cases that were not addressed in Medellin, including seven Supreme Court cases. (148) In any event, in this case the President left a conforming discretion with the state courts that basically left them where they had been in the first place and where they necessarily are under our Constitution after the decision in Medellin (149)--bound under the Supremacy Clause of the Constitution to comply with the judgment of the ICJ as the binding outcome of a treaty process.

This article also documents the fact that under an express and unavoidable mandate of the Constitution "all" treaties (including otherwise non-self-executing treaties) are supreme law of the land binding on the states and, especially, the state judiciary. In addition to unavoidable strictures of constitutional text and informing views of the Founders and Framers, numerous federal and state judicial decisions throughout our history have affirmed this point as well as the reach of treaty law domestically to override state laws and authority that might otherwise have existed regarding a vast panoply of subjects. Especially relevant are the federal and state decisions recognizing the reach of treaty law to state criminal law, jurisdiction, and proceedings. (150) The article also documents the fact that the text of the Constitution assures that there is no competing or inhibiting state authority vis-a-vis the treaty power, that in this instance federal preemption is also required, and that no inhibiting federal legislation exists to obviate the treaty-based requirement to comply with the ICJ decision in Avena or the President's choice concerning the means for faithful execution.

(1.) Medellin v. Texas, 128 S. Ct. 1346 (2008).

(2.) U.S. CONST., art. VI, cl. 2.

(3.) U.N. Charter art. 94, paras. 1 ("undertakes to comply with the decision"), 2 ("obligations [are] incumbent upon it under a judgment"). An additional treaty process is involved in this case because the United States agreed to submit relevant disputes concerning the meaning or application of the Vienna Convention on Consular Relations to the international Court of Justice for a final determination. See Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, art. 1, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 ("disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the" ICJ).

(4.) Statute of the International Court of Justice, arts. 59-60, June 26, 1945, 59 Stat. 1031 [hereinafter Statute of the ICJ].

(5.) U.N. Charter art. 93, para. 1. Since the Statute is part of the Charter-based law with respect to the ICJ, it would be error to ignore concomitant normative content reflected in the Statute when interpreting a relevant article of the Charter.

(6.) See Statute of the ICJ, supra note 4, at arts. 59-60. Article 59 of the Statute provides express recognition of the "binding force" of a decision of the ICJ. Id. at art. 59 (a "decision of the Court has ... binding force ... between the parties") (emphasis added); see Medellin, 128 S. Ct. at 1376 (Breyer, J., dissenting). Article 60 recognizes that a judgment "is final and without appeal." Statute of the ICJ, supra note 4, at art. 60. At one point, the majority opinion of Chief Justice Roberts in Medellin quoted Article 59 (128 S. Ct. at 1360) and even recognized twice that "ICJ judgments are ... binding" between the parties (id. at 1360, 1363 n.10), but concluded inconsistently in what is likely to become a widely recognized error that state parties to a case have a supposed "option of noncompliance contemplated by Article 94(2)" of the UN Charter despite the fact that the majority opinion had earlier recognized that "[n]o one disputes that the Avena decision ... constitutes an international law obligation on the part of the United States." 128 S. Ct. at 1356 (emphasis in original). The majority opinion accepted an executive view that the phrase "undertakes to comply" in Article 94 of the Charter implies a lack of "immediate legal effect" and creates a "commitment ... to take future action." Id. at 1358 (emphasis in original). This specious executive claim, which otherwise focuses on the duty "to comply" and does not contemplate an alleged "option of noncompliance," ignores the unavoidable language in Article 59 of the Statute that decisions have "binding force." Additionally, there is no logical reason why a duty or an undertaking "to comply" is not immediately operative. The duty to comply is of immediate legal effect even if in a given case compliance by the judiciary when enforcing the duty takes place after the duty has arisen. The Supreme Court's majority opinion also supposes that if ICJ judgments were final and of binding force upon the parties to a case that "neither Texas nor this Court may look behind a judgment and quarrel with its reasoning or result." Id. at 1364. But that is precisely the result mandated by the treaty, that a judgment is "final" and of "binding force" (or, as the majority opinion might prefer, the "binding force" and "final" result is mandated by "a rule of law that makes it so."). See id. A federated state's courts and subentities simply cannot obviate the final and "binding force" of an ICJ judgment. Moreover, the fact that a multilateral treaty does not directly address the subentities of a federated state does not change such a result and, in any event, it is the U.S. Constitution that mandates that there be subentity compliance with all treaties of the United States and that subentities may not look behind the treaty and quarrel with its result. See Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 372 (1857) (a treaty is "the supreme law of the land, and the courts can[not] go behind it for the purpose of annulling its effect and operation"); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 593 (1832) (Washington, J.) ("judicial power can exercise no discretion in refusing to give effect to [treaties]"); infra Part III.B.

It is curious that Justice Stevens argued in his concurring opinion in Medellin that "no one disputes that ... [the judgment] constitutes an international law obligation on the part of the United States," but "[t]hat the judgment is 'binding' as a matter of international law says nothing about its domestic legal effect." 128 S. Ct. at 1374. (Stevens, J., concurring). However, the judgment, as an admitted treaty obligation of the United States that has "final" and "binding force," is given domestic legal effect by the United States Constitution when it expressly and unavoidably mandates that the treaty-based obligation (as obligations under all treaties of the United States) is supreme law of the land binding on the states and its courts. U.S. Const. art. VI, cl. 2. See infra Part III.B.

(7.) See U.N. Charter art. 94, para. 2. The majority opinion in Medellin did not understand the point that use of the Security Council (which is merely optional) would merely provide another enforcement option (in addition to political, diplo matic, economic and other sanction responses that are normally available when a state fails to comply with its obligations under international law), an option that has never been used. The existence of an alternative enforcement option does not lessen the fact that a decision of the ICJ is final and of "binding force" between the parties to the case. Supra note 6. In fact, this very paragraph in Article 94 expressly refers to "obligations incumbent upon" a party to a case "under a judgment rendered by the Court." The Security Council does not create those obligations. The Charter and the ICJ create legal "obligations" of "binding force" that are "incumbent upon" parties to a case. There is no implied option of noncompliance. Further, the Security Council does not "effectuate the judgment," but decides whether it should order sanctions against a recalcitrant state. The veto power relates to what measures the Security Council might impose, not to whether the judgment is of binding legal force. If the Council had to "effectuate" a judgment, none could have been effectuated over the last sixty years because the Council has never been used to issue sanctions.

(8.) See id.; supra note 6; see also THE CHARTER OF THE UNITED NATIONS 1174-76 (Bruno Simma, et al., eds. 2002); THOMAS BUERGENTHAL & SEAN D. MURPHY, PUBLIC INTERNATIONAL LAw 90-92 (West Group 2007) (1990); Louis Henkin, Provisional Measures, U.S. Treaty Obligations, and the States, 92 AM. J. INT'L L. 679, 680 (1998) ("Under international law, and under the U.S. Constitution, the Court's Order had the same character and status as a U.S. treaty obligation as does the Statute of the Court underlying the Order."); Malvina Halberstam, LaGrand and Avena Establish a Right, But Is There a Remedy? Brief Comments on the Legal Effect of LaGrand and Avena in the U.S., 11 ILSA J. INT'L L. COMP. L. 415, 416 (2005) ("The ICJ ruling is binding on U.S. courts, state and federal."); Carlos Manuel Vazquez, Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, 92 AM. J. INT'L L. 683, 685 (1998) ("If ICJ orders ... are binding, they are treaty-based obligations of the United States.").

(9.) The Court reversed an earlier misinterpretation of a treaty when it realized the true meaning of the treaty language. See United States v. Percheman, 32 U.S. (7 Pet.) 51, 87-89 (1833), reversing its misread in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

(10.) See Comegys v. Vasse, 26 U.S. (1 Pet.) 193, 212 (1828) (Story, J.) (the decision of a commission under a U.S.-Spain treaty was "conclusive and final" and "not re-examinable" in U.S. courts and "[f he parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction"); United States v. Weil, 35 Ct. Cl. 42 (1900); United States v. La Abra Silver Mining Co., 28 Ct. Cl. 432 (1894) ("It is a general and fundamental principle of the law that the award of an arbitration ... is binding upon the parties."); see also La Abra Silver Mining Co. v. United States, 175 U.S. 423, 456-57, 461-63 (1899) (private company had a claim of right under a "treaty and the award of the [U.S.-Mexico international arbitral] commission" and such right was undoubtedly "susceptible of judicial determination," adding: "We might well doubt the soundness of any conclusion that could be regarded as weakening or tending to weaken the force that should be attached to the finality of an award made by an international tribunal of arbitration," but in this case the effect of an act of Congress was to "strengthen the principle that an award ... must be executed in good faith"); Kinkead v. United States, 150 U.S. 483, 495 (1893) (distinguishing Comegys); Meade v. United States, 76 U.S. (9 Wall.) 691, 725 (1870) (a decision of a tribunal under a U.S.-Spain treaty "was final and conclusive, and bar[red] a recovery" in a U.S. court); Dutilh Coursault Campbell, 8 F. Cas. 159, 164-65 (C.C.D.C. 1837) (No. 4,206) (quoting Comegys v. Vasse, 26 U.S. (1 Pet.) at 212).

(11.) The Peterhoff v. United States, 72 U.S. (5 Wall.) 28, 57 (1866).

(12.) See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2684 (2006) ("[t]he ICJ's decisions have 'no binding force except between the parties....'") (quoting Statute of the ICJ, supra note 4, art. 59) (emphasis added). Cf. Vicki C. Jackson, World Habeas Corpus, 91 CORNELL L. REV. 303, 362 n.316 (2006) (for a court to not apply an ICJ interpretation of law to persons not covered by a judgment who are nonetheless in much the same position can reflect "a thin and formalist conception of equality and the rule of law").

(13.) See generally Jordan J. Paust, Domestic Influence of the International Court of Justice, 26 DENY. J. INT'L L. & POL'Y 787 (1998) (documenting actual use of such opinions and relevant patterns of use). See also Sanchez-Llamas, 126 S. Ct. at 2683, 2685 (an ICJ interpretation of the Convention, as opposed to a binding judgment, will be given "'respectful consideration,"' (quoting Breard v. Greene, 523 U.S. 371, 375 (1998))); id. at 2697, 2700-03 (Breyer, J., dissenting) (identifying several ICJ opinions that U.S. courts had looked to "for guidance"). See generally Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 VA. J. INT'L L. 675 (2003).

(14.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).

(15.) Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. In the United States, this treaty has been considered to be self-executing and supreme federal law. See, e.g., S. Exec. Rep. No. 91-9, at 5, 18 (1969) (Deputy Legal Adviser J. Edward Lyerly stating it is "entirely" self-executing, "does not require any implementing or complementing legislation," and "[t]o the extent that there are conflicts with Federal legislation or State laws the Vienna Convention would govern"); LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466, 494 (June 27) [hereinafter LaGrand Case]; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (introductory note) 457 (1987) [hereinafter RESTATEMENT]; Valerie Epps, Violations of the Vienna Convention on Consular Relations: Time for Remedies, 11 WILLAMETTE J. INT'L L. & Disp. RESOL. 1, 7-8 (2004); Halberstam, supra note 8, at 417; Brief for the United States as Amicus Curiae Supporting Respondent, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928),2005 WL 504490 [hereinafter U.S. Amicus Brief in Dretke].

(16.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12,106(l)-(2), 153(4) (Mar. 31). 1 agree with the ICJ, the Inter-American Court of Human Rights, and others that individuals have rights under the Convention. See id.; The Right to Information on Consular Assistance in the Framework of the Guarantee of the Due Process of Law, Advisory Op. OC-16/99, Inter-Am. Ct. H.R. (ser. A) Report No. 16 [paragraph][paragraph] 82-84,104 (Oct. 1, 1999) (the VCCR "endows a detained foreign national with individual rights that are the counterpart to the host State's correlative duties" and the right "is part of the body of international human rights law"); Sanchez-Llamas, 126 S. Ct. at 2688 (Ginsburg, J., concurring); id. at 2691, 2693-98 (Breyer, J., dissenting); Reynaldo Anaya Valencia, et al., Avena and the World Court's Death Penalty Jurisdiction in Texas: Addressing the Odd Notion of Texas's Independence From the World, 23 YALE L. & POL'Y REV. 455, 457, 481 (2005); Lori Fisler Damrosch, The Justiciability of Paraguay's Claim of Treaty Violation, 92 AM. J. INT'L L. 697, 701 (1998); Epps, supra note 15, at 9, 16-20, 22; Halberstam, supra note 8, at 415-16; Linda A. Malone, From Breard to Atkins to Malvo: Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL OF RTS. J. 363, 366-67 (2004); Margaret E. McGuinness, Medellin, Norm Portals, and the Horizontal Integration of International Human Rights, 82 NOTRE DAME L. REV. 755, 777, 816 (2006); John F. Murphy, Medellin v. Texas: Implications of the Supreme Court's Decision for the United States and the Rule of Law in International Affairs, 31 SUFFOLK TRANSNAT'L L. Rev. 247 passim (2008) (addressing "rights" throughout the article); Jordan J. Paust, Breard and Treaty-Based Rights Under the Consular Convention, 92 Ana. J. INT'L L. 691, 691-92 n.2 (1998); John Quigley, Application of Consular Rights to Foreign Nationals: Standards for Reversal of a Criminal Conviction, 11 ILSA J. INT'L & COMP. L. 403, 404 (2005); see also Jogi v. Voges, 480 F.3d 822, 829 (7th Cir. 2007); Cornejo v. County of San Diego, 504 F.3d 853, 864-73 (9th Cir. 2007) (Nelson, J., dissenting) ("Article 36(1)(b) speaks rather clearly in rights-conferring language ... the drafters of the treaty included this language to make clear that individuals have the right to be informed," and "[i]n LaGrand, the ICJ held that Article 36(1)(b) 'creates individual rights for the detained person'.... Thus ..., Article 36(1)(b) does confer individual rights."); United States v. Lombera-Camorlinga, 170 F.3d 1241, 1243 (9th Cir. 1999); United States ex rel. Madej v. Schomig, No. 98C1866, 2002 WL 31386480, (N.D. Ill. 2002); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996) ("The Vienna Convention on Consular Relations requires an arresting government to notify a foreign nation ... of his right."). But see Cornejo, 504 F.3d at 855 and 859 ("Article 36 does not create judicially enforceable rights" and merely "'arguably confers to an individual the right."'); Maharaj v. Sec'y for the Dep't of Corrections, 432 F.3d 1292, 1307 (11th Cir. 2006) ("the Vienna Convention does not confer judicially enforceable individual rights."); Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004) (preferring precedent that states Article 36 "does not create an individually enforceable right").

(17.) See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 113-14, 120-22, 133-34, 138-41, 153(9) (Mar. 31). Thus, such a judicial remedy is a treaty-based requirement, within the outcome of treaty processes (i.e., the judgment of the ICJ). Chief Justice Roberts recognized that "where a treaty provides for a particular judicial remedy ... [c]ourts must apply the remedy as a requirement on federal law. Sanchez-Llamas, 126 S.Ct. at 2680. The dissent in Medellin concluded that the judgment "is enforceable as a matter of domestic law without further legislation" and relevant "treaty provisions ... are self-executing." Medellin v. Texas, 128 S. Ct. 1346, 1377 (2008) (Breyer, J., dissenting).

(18.) Memorandum from George W. Bush, President, United States, to U.S. Att'y Gen., (Feb. 28, 2005), available at http://www.whitehouse.gov/news/releases/2005/02/20050228-18.htm1 [hereinafter Bush].

(19.) See infra Part III.A. The need for compliance with the ICJ judgment is not a matter within the discretion of the President, but rather compliance is mandated by the United States Constitution. Therefore, the President's determination must be interpreted as one concerning the method of compliance and not whether there must be compliance. Id. But see U.S. Amicus Brief in Dretke, supra note 15, at 40 (wrongly claiming that in some other case "the President may decide that the United States will not comply with an ICJ decision"). Under the express command of the Constitution, the President must faithfully execute treaty law, including the binding outcome of a treaty process. See infra Part III.A. The constitutional obligation of the President is an obligation of law and is clearly relevant to the rule of law. It is not a matter of mere political or "foreign affairs" discretion. See also infra notes 38-40 and accompanying text. This is the only Administration that has improperly claimed a right to violate treaty law of the United States as well as any inhibiting domestic legislation, but the Constitution, overwhelming views of the Founders and Framers, and predominant trends in judicial decision stand in sharp and unavoidable contrast to such autocratic, ahistorical, and anti-constitutional claims. See JORDAN J. PAUST, BEYOND THE LAW: THE BUSH ADMINISTRATION'S UNLAWFUL RESPONSES IN THE "WAR" ON TERROR 20-23, 86-91, 169-72, 233-48 (2007).

(20.) See Bush, supra note 18.

(21.) See Brief for Respondent at 6, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428387 [hereinafter Brief for Texas]. In that instance, the Attorney General was acting on behalf of the President of the United States. It is one of the ironies in history that Alberto Gonzales was the U.S. Attorney General who sent the notice to the State of Texas. Some seven and one half years earlier, then General Counsel Gonzales to then Governor Bush responded to an inquiry from the Acting Legal Adviser of the U.S. Department of State asking what Texas was doing to comply with the Vienna Convention on Consular Relations. Gonzales responded that

"[s]ince the State of Texas is not a signatory to the Vienna Convention .... we believe it is inappropriate to ask Texas to determine whether a breach of Article 36 ... occurred .... [Additionally,] I felt it would be inappropriate for the Governor's Office to give an opinion regarding the consequences and materiality of any breach of the treaty."

Letter from Alberto Gonzales, General Counsel to Governor of Texas, to Michael J. Matheson, Acting Legal Advisor, U.S. Dep't of State, (June 16, 1997), as reprinted in JORDAN J. PAUST, JON M. VAN DYKE, LINDA A. MALONE, INTERNATIONAL LAW AND LITIGATION IN THE U.S. 498-99 (2d ed. 2005). His response, of course, demonstrates remarkable ignorance of constitutional law.

(22.) See Brief for Petitioner at 15, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1886212 [hereinafter Brief for Petitioner].

(23.) Id. at 10.

(24.) Id. at 15.

(25.) Id. at 33.

(26.) Id. at 15.

(27.) See Brief for Petitioner, supra note 22, at 32. The law had been made (i.e., the treaties) and was the supreme law of the land under the Constitution. See also infra Part III.B.

(28.) See Bush supra note 18. This is manifestly untenable because of the President's use of the phrases "will discharge" and "by having State courts give effect." See also Brief for Petitioner, supra note 22, at 15. It is correct that the President "confirmed" that the United States will comply, but the President also chose a means for compliance. Later, the Brief also correctly recognized that the President has "discretion to determine the means of enforcement ... to the extent not specified by ... the treaty." Id. at 17.

(29.) See Brief for Petitioner, supra note 22, at 17.

(30.) Id. at 31 (quoting Brief for the United States as Amicus Curiae Supporting Respondent at 42, Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004)).

(31.) Brief for Texas, supra note 21, at 1.0-11. The Texas brief demonstrates remarkable ignorance of our constitutional process of treaty formation by stating that the U.S. Senate ratifies treaties. See id. at 17, 19, 24, 27, 43. To the contrary, the President has the choice whether to ratify or make treaties after having received advice and consent of the Senate to do so. See U.S. CONST. art. II, [section] 2 ("He shall have Power ... to make Treaties."); see also LORI F. DAMROSCH, Louis HENKIN, ET AL., INTERNATIONAL LAw 195 (4th ed. 2001). Even more ridiculous is the following statement in a Ninth Circuit case addressing the Convention: "Congress, by ratifying the Convention ..." See Cornejo v. County of San Diego, 504 Fad 853, 857 (9th Cir. 2007). Of course, the House of Representatives does not directly participate in the process of advice and consent and was purposely excluded. See Jordan J. Paust, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 68-69,81-83 (2d ed. 2003). Given the above, it is astounding to read in the majority opinion of Chief Justice Roberts in Medellin that "the Senate ... ratified the U.N. Charter" and was a "ratifying Senate," that "[t]he Senate can ratify a self-executing treaty," and that "a treaty ... [is] signed by Congress." Medellin v. Texas, 128 S. Ct. 1346, 1358, 1360, 1369, & 1361 n.8 (2008).

(32.) Brief for Texas, supra note 21, at 26.

(33.) See Brief for Texas, supra note 21, at 26.

(34.) Brief for Texas, supra note 21, at 37.

(35.) See Brief for Texas, supra note 21, at 8.

(36.) See supra notes 18-20 and accompanying text.

(37.) Although the majority opinion in Medellin disagreed, the treaty-executive directive should have had the same force and effect domestically as a treaty-executive order or a treaty-executive agreement. See also Dames & Moore v. Regan, 453 U.S. 654, 664-66, 688 (1981) (treaty-executive agreement and executive implementing orders obviated some domestic court judgments and attachments and suspended some claims pending in the courts); THE FEDERALIST No. 64 (John Jay) ("All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature."); Henkin, supra note 8, at 681 (Since "the ICJ Order was legally binding, the President ... was obligated to make ... 'mandatory' representations to the Governor of Virginia."); Vazquez, supra note 8, at 685 n.15 ("A letter [from the Executive to the states] would have differed from an executive order in form only, and I do not think anything in the constitutional analysis would turn on this difference."); U.S. Amicus Brief in Dretke, supra note 15, at 43-45; infra note 65; infra note 96 and accompanying text. The President's powers in this instance include the powers, among others, to faithfully execute treaties (see infra Part III.A) and to assure settlement of international disputes (see infra Part III.D). Given the President's constitutional duty and competence to faithfully execute laws, presidential measures to execute treaty law should have an authority at least equal to that of treaty law under the Constitution.

(38.) U.S. CONST. art. II, [section] 3.

(39.) See PAUST, supra note 31, at 107, 109, 147-48 n.77, 169-73, 179-87, and cases cited.

(40.) See, e.g., PAUST, supra note 31, at 44 n.55, 78-79, 97 n.130, 109, 118-119, 148, 170-172,499-500; PAUST, ET AL., supra note 21, at 240-41; Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555, 1567 (1984) ("[T]he President has the duty, as well as the authority, to take care that international law as part of the law of the United States is faithfully executed. The President does this regularly. ..."); Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1118-19 (1985); Arthur S. Miller, The President and Faithful Execution of the Laws, 40 VAND. L. REV. 389, 402-05 (1987); infra notes 44-46. This enhanced presidential competence to execute law does not lessen the judicial power to ultimately identify and clarify international law. See Jordan J. Paust, Judicial Power To Determine the Status and Rights of Persons Detained Without Trial, 44 HARV. INT'L L.J. 503, 517-25 (2003) (addressing numerous cases). Further, the existence of such a presidential power does not lessen any relevant power of Congress to further effectuate treaty law through legislation.

(41.) 15 THE PAPERS OF ALEXANDER HAMILTON 33, 40, 43 (Harold C. Syrett ed., 1969). Hamilton added: "it becomes both its [the Executive's] province and its duty to enforce the laws." Id. at 40.

(42.) Representative John Marshall, speech of Mar. 4, 1799, in 10 ANNALS OF CONC. 613-14 (1800). The U.S. Supreme Court has labeled Marshall's recognition as "masterly and conclusive." See Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893).

(43.) 1 Op. Att'y Gen. 566, 569-71 (1822).

(44.) See PAUST, ET AL., supra note 21, at 240-41; infra notes 45 and 46 and accompanying text.

(45.) Francis v. Francis, 203 U.S. 233, 240 (1906) (quoting Stockton v. Williams, 1 Doug. 546, 564 (Mich. 1845)).

(46.) See, e.g., Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8-9 (1936) (discussing the President's power to execute extradition treaties with respect to extraditable individuals and noting that the President's "power, in the absence of [a] statute ... [is] found in the terms of the treaty" as well as where a "treaty confers the power"); Sanitary Dist. v. United States, 266 U.S. 405, 425-26 (1925) (discussing how the Executive can choose to sue a state agency to enjoin it and to enforce "treaty obligations," "and no statute is necessary to authorize the suit"); Cunningham v. Neagle (In re Neagle), 135 U.S. l, 64 (1890) (stating Executive duty to execute treaties exists and implicitly includes authority to assure compliance with all "obligations growing out of ... our international relations"); Chew Heong v. United States, 112 U.S. 536, 563 (1884) (Field, J., dissenting) ("[T]reaties must continue to operate as part of our municipal law, and be obeyed by the people, applied by the judiciary and executed by the President."); Lessee of Pollard's Heirs v. Kibbe, 39 U.S. 353, 415 (1840) ("[I]f any act is required on the part of the United States, it is to be performed by the executive, and not the legislative power, as declared in the case of The Peggy in 1801." (citing U.S. v. The Peggy, 5 U.S. (1 Cranch) 103 (1801))); Ex parte Toscano, 208 F. 938, 942-44 (S.D. Cal. 1913) (stating executive detention of persons from Mexico was appropriate under a treaty; "in the absence of ... [special] legislation, the duty devolves upon the President"; and "the President has full authority ... [under the treaty], and it was and is his duty to execute said treaty provisions"); United States v. Mullin (In re Garrett), 71 F. 682, 684, (D. Neb. 1895) (stating "the duty and obligation rests upon the executive branch" to comply with a treaty); Taylor v. Morton, 23 F. Cas. 784, 786 (C.C.D. Mass. 1855) (No. 13,799) (Curtis, J.) ("treaties must ... be ... executed by the President); In re Sheazle, 21 F. Cas. 1214, 1217 (C.C.D. Mass. 1845) (No. 12,734) (stating President can exercise ministerial acts to implement a treaty); United States v. Cooper, 25 F. Cas. 631,641-42 (C.C.D. Pa. 1800) (No. 14,865) (Chase, J.) ("If the president, ... by this treaty, was bound to give this Nash up for justice, he was so bound by law; for the treaty is the law of the land ... His delivery was the necessary act of the president, which he was by the treaty and the law of the land, bound to perform; ... [the] president . . . [had the] duty [of] ... carrying a solemn treaty into effect."); United States v. Robins, 27 F. Cas. 825, 867 (D.C.D.S.C. 1799) (No. 16,175) (stating President can execute a treaty by delivering individuals to foreign countries); Francis v. Francis, 136 Mich. 288, 290 (1904) (quoting Stockton v. Williams, (Mich. 1840)); 13 Op. Att'y Gen. 358 (1870) (quoted in Ex parte Toscano, 208 F. at 943); 1 Op. Att'y Gen. 509, 521 (1821); supra note 40; infra note 96 and accompanying text. See also Wilson v. Girard, 354 U.S. 524, 530 (1957) (Executive can execute a treaty by executive agreement and take measures to comply with the agreement); Dooley v. United States, 182 U.S. 222, 231 (1901) (Executive authority in occupied territory is "regulated and limited" as well as "derived directly from the laws of war"). But see Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), relying on dictum in Whitney v. Robertson, 124 U.S. 190, 194 (1888) ("can only be enforced pursuant to legislation").

(47.) See Medellin, 128 S. Ct. at 1369-70, quoting Madison ("'cannot of himself make a law"'). But see id. at 1362 ("the President making the treaty"), 1369, ("Constitution vests the President with the authority to 'make' a treaty").

(48.) The Constitution expressly states that the President "shall have Power ... to make Treaties." U.S. CONST., art. II, [section] 2.

(49.) For example, see United States v. Pink, 315 U.S. 203 (1942).

(50.) But see Medellin, 128 S. Ct. at 1371.

(51.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 23 (Mar. 31). As a treaty-based choice for the United States, this decision would be made by the Executive who must faithfully execute the law and who has primary authority for the settlement of international disputes in accordance with treaty obligations. As noted above, although U.S. compliance with the ICJ judgment is compulsory, per terms of that judgment, the United States was given latitude regarding how compliance would be achieved and the President chose the means for fulfillment. See supra note 19 and accompanying text (discussing President's options in implementing the Avena judgment). Moreover, the President remained bound by the ICJ judgment once it was rendered despite the fact that the Executive has power to withdraw the United States from the Optional Protocol to the Vienna Convention, which he did after the judgment was rendered. See Valencia, et al., supra note 16, at 458 n.21, 466. In any event, he did not withdraw the United States from the UN Charter, which is the primary treaty that requires compliance with the ICJ judgment.

(52.) See Bush, supra note 18 and accompanying text (quoting Presidential directive).

(53.) U.S. CONST. art. VI, cl. 2.

(54.) U.S. CONST. art. VI, cl. 2; see PAUST, supra note 31, at 68-71, 79,115-16, 361-62 (discussing controlling power of different types of treaties); Oyama v. California, 332 U.S. 633, 672-73 (1948) (Murphy, J.) (finding state law in conflict with the United Nations Charter could not prevail); infra note 56 (citing cases exemplifying interaction between state law and all U.S. treaties).

(55.) See PAUST supra note 31, at 67-71, 81-83, 361-62.

(56.) See, e.g., Oyama v. California, 332 U.S. 633, 672-73 (Murphy, J., concurring) (quoted infra text accompanying note 58); Gordon v. Kerr, 10 F. Cas. 801, 802 (C.C.D. Pa. 1806) (No. 5,611) (Washington, J.) (seemingly non-self-executing treaty "is supreme" over a state constitution); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236-37 (1796) ("any treaty," "every treaty"); United States v. Duarte-Acero, 208 F.3d 1282, 1284 (11th Cir. 2000) (despite declaration of partial non-self-execution, the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (Dec. 9,1966), became supreme law of the land upon ratification); 6 Op. Att'y Gen. 291, 293 (1854) (all treaties are supreme law over that of the states, even treaties requiring "enactment of a statute to regulate the details"); Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land, " 99 COLUM. L. REV. 2095 (1999); Jordan J. Paust, Breard and Treaty-Based Rights under the Consular Convention, 92 AM. J. INT'L L. 691, 692 nn.8-10 (1998); PAUST, supra note 31, at 68-71; see also Asakura v. Seattle, 265 U.S. 332, 341 (1924) ("A treaty [thus, any treaty] made under the authority of the United States 'shall be the supreme law of the land."'(quoting U.S. Const. art. VI, [section]2)); Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 272-73 (1909) ("A treaty [thus, any treaty] ... by the express words of the Constitution, is the supreme law of the land."); Hauenstein v. Lynham, 100 U.S. 483, 488 (1879) ("The efficacy of the treaty is declared and guaranteed by the Constitution"); Hamilton v. Eaton, 11 F. Cas. 336, 340 (C.C.D.N.C. 1792) (No. 5,980) (ratification of a treaty by the Executive "was alone sufficient" for its "validity and efficacy"); State v. Cutshall, 15 S.E. 261 (N.C. 1892) ("A treaty [thus, any treaty] . .. at once operates as a repeal of all state laws repugnant to its provisions."); Fisher v. Harnden, 9 F. Cas. 129,131 (C.C.D.N.Y. 1812) (No. 4,819) (Livingston, J.) ("where by a treaty, which is the supreme law of the land"), rev'd on other grounds, Harnden v. Fisher, 14 U.S. (1 Wheat.) 300 (1816); infra notes 73, 78-96, 101 and accompanying text.

(57.) See Oyama v. California, 332 U.S. at 672-73 (Murphy, J., concurring) ("Added to this constitutional defect, of course, is the fact that the ... [California law] has proved an embarrassment to the United States Government ... [and] has had direct and unfortunate consequences on this country's relations with Japan"). Such adverse effects form a basis for federal preemption. See infra Part III.D.

(58.) Oyama, 332 U.S. at 672-73.

(59.) U.S. CONST. art. V1, cl. 2.

(60.) See also Brief for Petitioner, supra note 22, at 16, 26, 28 (recognizing state court obligation to give effect to treaties and the Avena judgment).

(61.) See supra Part H.A.

(62.) See supra Part H.A.

(63.) See supra Part H.A.

(64.) See also infra note 121.

(65.) Brief for Petitioner, supra note 22, at 33 (citing Sanitary Dist. v. United States, 266 U.S. at 425-26 (addressed supra note 46)); see also Medellin v. Texas, 128 S. Ct. 1346, 1391 (2008) (Breyer, J., dissenting) (addressing Ex parte Peru, 318 U.S. 578, 588 (1943) (the Executive can assert principles of international law in a state court); United States v. Minnesota, 270 U.S. 181, 184 (1926) (the U.S. Executive can invoke the aid of a court of equity in removing unlawful obstacles to the fulfillment of U.S. obligations under a treaty); Henkin, supra note 8, at 681 (the executive could institute "an independent proceeding in a federal court for an order to the Governor or other state officials to honor the U.S. treaty obligation"); Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal: Reclaiming the Court's Original and Exclusive Jurisdiction Over Treaty-Based Suits by Foreign States Against States, 104 COLUMBIA L. Rnv. 1765, 1768, 1771, 1782, 1829-30 (2004) ("The United States ... may sue a State without its consent" for violations of "treaty law and the law of nations"; and "historical evidence," including Framer expectations, demonstrates that the text and structure of the Constitution allow suits by foreign states against U.S. states in the Supreme Court regarding at least treaty-based claims.).

(66.) U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.") (emphasis added).

(67.) U.S. CONST. art. VI, cl. 2.

(68.) See, e.g., Reid v. Covert, 354 U.S. 1, 18 (1957); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ("No state can add to or take from the force and effect of ... [a] treaty ...."); Missouri v. Holland, 252 U.S. 416, 432 (1920) (no inhibiting or inconsistent power of the state remains in view of the express language of the Tenth Amendment and "because by Article II, [section] 2, the power to make treaties is delegated expressly, and by Article VI treaties made ... are declared the supreme law of the land"); Commonwealth v. Blodgett, 53 Mass. (12 Met.) 56, 82 (1846) ("[T]he States are expressly prohibited from entering into any treaty.... [T]he power of making ... treaties ... is vested absolutely and exclusively in the general government, with their incidents."); LOUIS HENKIN, FOREIGN AFFAIRS AND THE US CONSTITUTION 191 (2d ed. 1996); PAUST, supra note 31, at 68-71; David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075, 1259, 1264-66, 1284 (2000); infra notes 70-71.

(69.) Reid, 354 U.S. at 18.

(70.) United States v. Lue, 134 F.3d 79, 84-85 (2d Cir. 1998). See also United States v. Belmont, 301 U.S. 324, 331 (1937) ("In respect of all international ... compacts ... state lines disappear."); THE FEDERALIST No. 23, at 200 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961) (the treaty power "Ought to exist without limitation ... [with] [n]o constitutional shackles").. Prior to the Constitution, it was recognized in Rutgers v. Waddington (N.Y. Mayor's Ct. 1784) that no state has competence to "alter or abridge" a treaty ratified by the Continental Congress, reprinted in 1 THE LAw PRACTICE OF ALEXANDER HAMILTON 413 (Julius Goebel, Jr., ed., 1964).

(71.) In re Parrott, 1 F. 481, 501 (C.C.D. Cal. 1880).

(72.) See also William Vans Murray, Representative, remarks (1796), in 5 ANNALS OF CONG. 701-02 (1796) (because of the "explicitness of the instrument itself" with respect to the supremacy of treaties, "nothing ... is left for ... sophistry"); 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 435 (Jonathan Elliot ed., 1941).

(73.) Missouri, 252 U.S. at 434 (quoting Baldwin v. Franks, 120 U.S. 678, 683 (1887)).

(74.) Id. at 434.

(75.) Id.

(76.) Hamilton v. Eaton, 11 F. Cas. 336,337-38,340 (C.C.D.N.C. 1792) (No. 5,980). See also supra notes 57-60; infra notes 111-112.

(77.) See U.S. CONST. art. Vl, cl. 2 (mandating "the Judges in every State shall be bound thereby").

(78.) Baker v. City of Portland, 2 F. Cas. 472, 474 (C.C.D. Or. 1879) (No. 777). Baker also recognized:
 This treaty ... is the supreme law of the land, and the courts are
 bound to enforce it fully and fairly.... The state cannot legislate
 so as to interfere with the operation of this treaty or limit or
 deny the privileges and immunities granted by it to the Chinese
 residents in this country.


Id. at 473.

(79.) See, e.g., Mali v. Keeper of the Common Jail (Wildenhus's Case), 120 U.S. 1, 17 (1887), cited in Missouri v. Holland, 252 U.S. 416,435 (1920); Dominguez v. State, 234 S.W. 79, 83 (Tex. 1921) (holding violation of an extradition treaty obviates criminal jurisdiction and a conviction); Telefsen v. Fee, 46 N.E. 562 (Mass. 1897); State v. Cutshall, 15 S.E. 261 (N.C. 1892) (holding a U.S. treaty "at once operates as a special repeal of all state laws repugnant to its provisions"); Commonwealth v. Hawes, 76 Ky. (13 Bush) 697, 702-03 (1878) (holding treaty limited state's criminal jurisdiction); State v. Vanderpool, 39 Ohio St. 273, 276-77 (1883) (holding extradition treaty limited state's criminal jurisdiction); Blandford v. State, 10 Tex. App. 627, 640 (Ct. App. 1881.) (stating same and obviated conviction).

(80.) Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561-62 (1832).

(81.) Hopkirk v. Bell, 8 U.S. (4 Cranch) 164 (1807). The same ruling by the Court appears earlier in the case. Hopkirk v. Bell, 7 U.S. (3 Cranch) 454, 456-57 (1806).

(82.) Vergnani v. Guidetti, 32 N.E.2d 272, 276 (Mass. 1941).

(83.) Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 82 (Tex. 2000) (using the International Covenant on Civil and Political Rights, as informed by General Comments of the Human Rights Committee under the Covenant, to recognize the right of access to courts and to an effective remedy, a case successfully argued by this author for Kazis); Kadota v. Hosogai, 125 Ariz. 131, 135-36 (1980) (stating treaty prevailed over state "rule promulgated by its courts" and legislation regarding service of process); Suzuki Motor Co. v. Superior Court, 200 Cal. App. 3d 1476, 1484 (App. 4th 1988); Universal Adjustment Corp. v. Midland Bank, Ltd., 281 Mass. 303, 324 (1933); Naylor v. Pittsburgh C., C. & St. L. Ry., 16 Ohio C.C (N.S.) 277 (Cir. Ct. 1904); see also Hosaka v. United Airlines, Inc., 305 F.3d 989, 1004 (9th Cir. 2002) (ruling the Warsaw Convention prevails over inconsistent common law doctrine of forum non conveniens in federal court).

(84.) See, e.g., Am. Ins. Assoc. v. Garamendi, 539 U.S. 396, 402-03 (2003); El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 175-76 (1999); Taiheiyo Cement Corp. v. Superior Court, 12 Cal. Rptr.3d 32, 45 (Cal. App. 2nd 2004); Empire Life & Hosp. Ins. Co. v. Armorel Planting Co., 247 Ark. 994, 996, (1970); Giovannetti v. Conte Equip. Co., 24 Pa. D. & C.2d 505, 511-14, (Pa. Co. Ct. 1961); Iannone v. Radory Constr. Corp., 285 A.D. 751, 755, 141 N.Y.S.2d 311, 314-15 (1955); Antosz v. State Comp. Comm'r., 435 S.E.2d 397, 399 (W.Va. 1947).

(85.) See Duquette v. Tahan, 600 A.2d 472, 477 (N.J. 1991); Fernandez v. Fernandez, 545 A.2d 1036, 1040-1041 (Conn. 1988).

(86.) See, e.g., Oyama v. California, 332 U.S. 633, 672 (1948); Jordan v. Tashiro, 278 U.S. 123, 127-30 (1928); United States v. Minn., 270 U.S. 181, 201-02 (1926); Terrace v. Thompson, 263 U.S. 197, 217 (1923) (citing Hauenstein v. Lynham, 100 U.S. 483, 484, 488 (1879)) (state power exists only "in the absence of any treaty provision to the contrary"); Kennett v. Chambers, 55 U.S. (14 How.) 38 (1852); United States v. Arredondo, 31 U.S. (6 Pet.) 691, 697, 749 (1832); Carver v. Jackson, 29 U.S. (4 Pet.) 1, 100-01 (1830) ("inconsistent with the treaty"); Carneal v. Banks, 23 U.S. (10 Wheat.) 181, 189 (1825); Soc'y for the Propagation of the Gospel in Foreign Parts v. New Haven, 21 U.S. (8 Wheat.) 464, 493 (1823); Orr v. Hodgson, 17 U.S. (4 Wheat.) 453, 462-65 (1819); Chirac v. Lessee of Chirac, 15 U.S. (2 Wheat.) 259, 270-71, 274-75 (1817); Gordon v. Kerr, 10 F. Cas. 801, 802 (C.C.D. Pa. 1806); Fisher v. Harnden, 9 F. Cas. 129, 131 (C.C.D.N.Y. 1812) (No. 4,819); Engen v. Union State Bank of Harvard, 223 N.W. 664, 666 (Neb. 1929); George v. Pierce, 148 N.Y.S. 230, 238 (1914); People ex rel. Cutler v. Dibble, 1854 WL 6052 (N.Y. 1857); People ex rel. Att'y Gen. v. Gerke, 5 Cal. 381, 385 (1855); Maiden v. Ingersoll, 1859 WL 5175 (Mich. 1859); PAUST, ET AL., supra note 21, at 238-39; see also Cornet v. Winton's Lessee, 1826 WL 447 (Tenn. 1826) (title by treaty prevails).

(87.) See Holguin v. Elephant Butte Irrigation. Dist., 575 P.2d 88, 92 (N.M. 1977); Minnesota Canal & Power Co. v. Pratt, 112 N.W. 395, 405 (Minn. 1907) (adding that treaty "prohibitions recognize no state lines").

(88.) See United States v. Pink, 315 U.S. 203 (1942). See also Owings v. Norwood's Lessee, 9 U.S. (5 Cranch) 344, 348-50 (1809) (treaty protected a mortgagee's interest); Tulee v. Washington, 315 U.S. 681 (1942) (treaty prevailed over state fishing laws); People v. Jondreau, 185 N.W.2d 375, 377, 379-82 (Mich. 1971) (trout taken was protected under a treaty that trumped state law); State v. Satiacum, 314 P.2d 400, 402-09 (Wash. 1957) (treaty trumped state fish and game laws); State v. Arthur, 261 P.2d 135, 141-43 (Idaho 1953) (treaty rights trumped state game and fish laws); In re Ah Chong, 2 F. 733, 737 (C.C. Cal. 1880).

(89.) See Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236-37 (1796) (Chase, J.); Hamilton v. Eaton, 11 F. Cas. 336, 337-38, 340 (C.C.D.N.C. 1792).

(90.) See, e.g., Asakura v. City of Seattle, 265 U.S. 332, 343 (1924); In re Parrott, 1 F. 481, 501-07 (C.C.D. Cal. 1880); Baker, supra note 78, at 473-74.

(91.) See, e.g., In re Ah Fong, 1 F. Cas. 213, 217-18 (C.C.D. Cal. 1874) (No. 102) (rejecting state law preventing Chinese immigrants from entering United States); Elkison v. Deliesseline, 8 F. Cas. 493, 494-96 (C.C.D.S.C. 1823) (No. 4,366) (Johnson, J.) (finding state law attempting to allow seizure of "free negroes and persons of color" on ships that come into its harbors directly conflicts with the "paramount and exclusive" federal commerce power, "the treaty-making power," and "laws and treaties of the United States" by "converting a right into a crime"); Golove, supra note 68, at 1214-16 (discussing Elkison decision that Negro Seamen Act compromised federal sovereignty). The Elkison court also ruled that a plea of necessity to protect state security does not obviate the primacy of the laws and treaties of the United States. Further, a restriction of a treaty right by legislation, "even by the general government," cannot prevail. See Elkison, 8 F. Cas. at 494-96.

(92.) See K.S.B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm'n, 75 N.J. 272, 280-81 (1977) (deciding state's Buy American statute was trumped by GATT regarding bidding specifications for a water treatment plant); Baldwin-Lima-Hamilton Corp. v. Superior Court, 208 Cal. App.2d 803,819-20 (1962) (finding California's Buy American statute invalid under the Supremacy Clause).

(93.) See Hines v. Davidowitz, 312 U.S. 52, 63, 73-74 (1941) (finding state law regulating alien registration was not within state's power). See also Magnani v. Harnett, 257 A.D. 487, 491-92, 14 N.Y.S.2d 107, 110-11 (1939) (determining treaty prevailed over state law excluding aliens from obtaining a chauffeur's license).

(94.) See Nielsen v. Johnson, 279 U.S. 47, 50, 58 (1929); In re Heikich Terui, 187 Cal. 20, 24-25 (1921) (finding state tax law that conflicted with treaty was void); Succession of Dufour, 10 La. Ann. 391 (1855) (holding treaty trumped tax on foreign heirs or legatees).

(95.) See, e.g., Zschernig v. Miller, 389 U.S. 429, 431, 433-36 (1968); Kolovrat v. Oregon, 366 U.S. 187, 196-97 (1961); Clark v. Allen, 331 U.S. 503, 507-08, 517-18 (1947); Santovincenzo v. Egan, 284 U.S. 30,40 (1931); Nielsen v. Johnson, 279 U.S. 47, 52 (1929); Geofroy v. Riggs, 133 U.S. 258 (1890); Hauenstein v. Lynham, 100 U.S. 483, 489 (1879); Chirac v. Lessee of Chirac, 15 U.S. (2 Wheat.) 259 (1817); Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 627 (1812); Wyers v. Arnold, 347 Mo. 413, 417 (1941) ("[E]ven laws governing essentially local matters must bow when treaty provisions override them."); In re Ostrowski, 160 Misc. 482, 483, 290 N.Y.S. 174 (1936); Goos v. Brocks, 223 N.W. 13,15-17 (Neb. 1929); Romaris v. California (In Re Romaris), 191 Cal. 740, 745 (1923); Techt v. Hughes, 128 N.E. 185, 191 (N.Y. 1920); In re Wyman, 77 N.E. 379, 380 (Mass. 1906); In re Lobrasciano, 77 N.Y.S. 1040, 1044 (1902); Opel v. Shoup, 69 N.W. 560,563-64 (Iowa 1896); Schultze v. Schultze, 144 111. 290, 296, 33 N.E. 201 (Ill. 1893); Succession of Rabasse, 47 La. Ann. 1452, 1455, 17 So. 867 (La. 1895); Watson v. Donnelly, 28 Barb. 653 (N.Y. App. Div. 1859) ("[S]tate legislation could not affect or impair the rights secured by treaty ... [t]he treaty is the paramount law of the land."); PAUST, ET AL., supra note 21, at 238.

(96.) Jondreau, 185 N.W.2d at 380 (under relevant treaty, President could limit or abrogate fishing).

(97.) See, e.g., United States v. Lara, 541 U.S. 193, 201 (2004); Missouri v. Holland, 252 U.S. at 433; United States v. Haun, 26 F. Cas. 227 (C.C.S.D. Ala. 1860) (No. 15,329); PAUST, ET AL., supra note 21, at 221-37; see also United States v. Arjona, 120 U.S. 479, 483-84, 487 (1887) (international law enhances congressional power to regulate counterfeiting of foreign currency). "This, however, does not prevent the state from providing for the punishment of the same thing." Arjona, 120 U.S. at 487.

(98.) 234 S.W. 79 (Tex. Crim. App. 1921).

(99.) Id. at 83.

(100.) 10 Tex. Ct. App. 627 (Tex. Ct. App. 1881).

(101.) Id. at 640.

(102.) See Brief for Texas, supra note 21, at 13, 38-39.

(103.) Supra notes 68-72.

(104.) Supra notes 68-96, 98-101.

(105.) See supra text accompanying notes 66-71.

(106.) 223 S.W.3d 315 (Tex. Crim. App. 2006).

(107.) Id. at 335.

(108.) See supra note 37; supra text accompanying note 96.

(109.) See, e.g., American Insurance Ass'n. v. Garamendi, 539 U.S. 396, 415-16 (2003) (international agreements "are fit to preempt state law"); El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155 at 175-76 (1999); Kolovrat v. Oregon, 366 U.S. 187 at 196 97 (1961); see also Baker v. City of Portland, 2 F. Cas. 472, 473 (C.C.D. Or. 1879) ("The state cannot legislate so as to interfere with the operation of this treaty or deny the privileges or immunities granted by it.").

(110.) 315 U.S. 203 (1942).

(111.) Id. at 230-31. "'[C]omplete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states'" and "'[i]n respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear."' Id. at 223, 234 (quoting U.S. v. Belmont, 301 U.S. 324, 331 (1937)).

(112.) Id. at 231. Pink added that state law and policy "must give way before the superior Federal policy evidenced by a treaty." Id.

(113.) Zschernig v. Miller, 389 U.S. 429, 441 (1968). Zschernig actually involved a conflict with a Friendship, Commerce, and Navigation Treaty. Id. at 431, 431 n.2.

(114.) See id. at 433-36; see also American Insurance Ass'n. v. Garamendi, 539 U.S. 396, 420-21, 423-24 ("[H]ere, there is evidence of a clear conflict between the policies," state law "undercuts the President's diplomatic discretion and the choice he has made," state law "'compromises the very capacity of the President to speak for the nation with one voice in dealing with other governments' to resolve claims," and claims in this case, "may be 'sources of friction."'); Tayyari v. New Mexico State University, 495 F. Supp. 1365, 1376, 1378, 1380 (D.N.M. 1980) (state university conduct was preempted because of "its potential effect on this nation's management of immigration and foreign affairs" and the fact that it "frustrates the exercise of the federal government's authority to conduct foreign relations" and "imposes an impermissible burden on the federal government power").

(115.) See also Frederic L. Kirgis, President Bush's Determination Regarding Mexican Nationals and Consular Convention Rights, ASIL INSIGHT (Mar. 2005), available at http://www.asil.org/sinsights/2005/03/insights050309.html ("[S]tate action that conflicts with the express foreign policy of the federal government is pre-empted under a consistent line of Supreme Court decisions.... Thus, the state courts with jurisdiction over the cases involving the 51 Mexican nationals could not ... decline to give effect to the President's determination.").

(116.) U.S. Amicus Brief in Dretke, supra note 15, at 41.

(117.) Id; see also McGuinness, supra note 16, at 791.

(118.) See generally Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (No. 4,186).

(119.) See supra note 20 and accompanying text.

(120.) See supra notes 63-66 and accompanying text.

(121.) See PAUST, ET AL., supra note 21, at 506; supra note 101 and accompanying text. See also Medellin v. Texas, 128 S. Ct. 1346, 1374 (2008) (Stevens, J., concurring) ("under the express terms of the Supremacy Clause, the United States' obligation to 'undertake to comply' with the ICJ's decision falls on each of the States as well as the Federal Government.").

(122.) RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 111 cmt. d (1987). RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES [section] 113 cmt. b (1987) ("State courts take judicial notice of federal law and will therefore take judicial notice of international law as law of the United States. Since it is a question of law, it need neither be pleaded nor proved."). See supra note 101 and accompanying text.

(123.) See PAUST, ET AL., supra note 21, at 506-08.

(124.) See PAUST, ET AL., supra note 21, at 265 (quoting 5 Exec. Rep. No. 102-23 (1992) (Comm. Rep.) reprinted in 31 I.L.M. 645). The Executive Explanation added that "the U.S. will implement its obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state, as appropriate, and that the Federal Government will remove any federal inhibition to the States' abilities to meet their obligations." PAUST, ET AL., supra note 21, at 263.

(125.) International Covenant on Civil and Political Rights, supra note 56, at art. 50.

(126.) See PAUST, ET AL., supra note 21, at 507-08. Article 50 of the treaty and the lack of a reservation thereto also ensure that the ICCPR is self-executing within all parts of the United States. See id. The mandatory "shall" language in Article 50 is self-executing in nature. See infra note 139.

(127.) Medellin v. Texas, 128 S. Ct. 1346, 1357 n.3 (2008); see also id. at 1369 ("provisions clearly according it domestic effect"). But see id. at 1366 (our cases do not "require that a treaty provide for self-execution in so many talismanic words").

(128.) 112 U.S. 580 (1884).

(129.) 112 U.S. at 598-99 (Miller, J.).

(130.) Owings v. Norwood's Lessee, 9 U.S. (5 Cranch) 344, 348-49 (1809) (Marsahll, C.J.). A number of Supreme Court cases have also recognized that treaties are to be construed in a broad manner to protect express and implied rights. See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 293-94 (1933); Nielsen v. Johnson, 279 U.S. 47, 51 (1929); Jordan v. Tashiro, 278 U.S. 123, 127 (1928); Asakura v. City of Seattle, 265 U.S. 332, 342 (1924) ("Treaties are to be construed in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred."); United States v. Payne, 264 U.S. 446, 448 (1924) ("Construing the treaty liberally in favor of the rights claimed under it, as we are bound to do...."); Geofroy v. Riggs, 133 U.S. 258, 271 (1890) ("where a treaty admits of two constructions, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred."); Hauenstein v. Lynham, 100 U.S. 483, 487 (1879) (where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred."), citing Shanks v. Dupont, 28 U.S. (3 Pet.) 242, 249 (1830) ("If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the most liberal exposition be adopted?").

(131.) Medellin, 128 S. Ct. at 1364.

(132.) See FAUST, supra note 31, at 71-75; FAUST, ET AL., supra note 21, at 252-53, 257.

(133.) See FAUST, ET AL., supra note 21, at 255.

(134.) See also Vienna Convention on the Law of Treaties, art. 31(3)(c), May 23, 1969, 1155 U.N.T.S. 131 ("any relevant rule of international law" shall be taken into account when interpreting a treaty).

(135.) See also id. at art. 31(3)(b) ("any subsequent practice in the application of the treaty which establishes the agreement").

(136.) For example, see, United States v. Stuart, 489 U.S. 353, 371-74 (1989) (Scalia, J., dissenting); New York Indians v. United States, 170 U.S. 1, 23 (1898).

(137.) See FAUST, supra note 31, at 72, 75; see also Medellin v. Texas, 128 S. Ct. 1346, 1380 (2008) (Breyer, J., dissenting) (the majority's "clear statement" of selfexecution test is wrong).

(138.) See supra notes 129-30 and accompanying text.

(139.) See, e.g., FAUST, supra note 31, at 72, 90 n.98, 129-30 n.14; FAUST, ET AL., supra note 21, at 257.

(140.) 28 U.S.C. [section] 2254(d) (1996).

(141.) See Brief for Texas, supra note 21, at 25-26.

(142.) See, e.g., Weinberger v. Rossi, 456 U.S. 25, 35 (1982) ("[A] congressional expression [to override is] necessary."); Cook v. United States, 288 U.S. 102, 120 (1933) (the purpose to override or modify must be "clearly expressed"); Cheung Sum Shee v. Nagle, 268 U.S. 336, 345-46 (1925) ("[The] Act must be construed with the view to preserve treaty rights unless clearly annulled, and we cannot conclude ... a congressional intent absolutely to exclude."); United States v. Lee Yen Tai, 185 U.S. 213, 221 (1902) ("[P]urpose ... must appear clearly and distinctly from the words used" by Congress.); PAUST, supra note 31, at 99, 107, 120, 124 nn.2-3; see also Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119, 142 (2005) (Ginsburg, J., concurring).

(143.) See PAUST, supra note 31, at 99, 101-02, 120-21. A prior step requires that courts try to interpret federal legislation consistently with the treaty if at all possible. See id. at 99, 120, 124 n.2.

(144.) See Damrosch, supra note 16, at 698 & n.7 (There is no evidence "that Congress had focused on the possibility of a conflict with obligations under the Vienna Convention and had deliberately decided to require compliance.").

(145.) See, e.g., Jones v. Meehan, 175 U.S. 1, 32 (1899); Holden v. Joy, 84 U.S. (17 Wall.) 211, 247 (1872); Reichart v. Felps, 73 U.S. (6 Wall.) 160, 165-66 (1867); Wilson v. Wall, 73 U.S. (6 Wall.) 83, 89 (1867); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 631-32 (1857) (Curtis, J., dissenting); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 749, 755 (1835); PAUST, supra note 31, at 104-05, 137-39 nn.40-49; see also Smith v. Stevens, 77 U.S. (10 Wall.) 321, 327 (1870) (stating joint resolution of Congress could not relate back to give validity to a land conveyance that was void under a treaty); Marsh v. Brooks, 49 U.S. (8 How.) 223, 232-33 (1850) (determining 1836 act of Congress could not "help the patent, it being of later date than the treaty" of 1824 which had conferred part of title to property in others); Chase v. United States, 222 F. 593, 596 (8th Cir. 1915), rev'd on other grounds, 245 U.S. 89 (1917) (stating "Congress has no power ... to affect rights ... granted by a treaty"); Elkison v. Deliesseline, 8 F. Cas. 493, 495 (C.C. D.S.C. 1823) (No. 4,366) (regarding impermissibility of restricting treaty rights by legislation). Professor Murphy suggests that the Court might apply the judicially-created last-in-time rule and ignore the judicially-created exceptions to the rule. See Murphy, supra note 16. However, that is rather like using the Constitution and ignoring the Amendments thereto.

(146.) See supra note 16 and accompanying text.

(147.) See 28 U.S.C. [section] 2253(c)(2) (2000) (regarding no "denial of a constitutional right").

(148.) Supra notes 45-46 and accompanying text.

(149.) See also supra note 121.

(150.) See supra notes 79-80 and accompanying text; supra text accompanying notes 94-97.
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Title Annotation:The Medellin v. Texas Symposium
Author:Paust, Jordan J.
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2008
Words:16542
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