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The anti-commandeering doctrine and foreign policy federalism - the missing issue in Medellin v. Texas.


The Supreme Court recently issued its opinion in the case of Medellin v. Texas, (1) a criminal case involving U.S. treaty obligations to facilitate contact between arrested foreign nationals and their nation's local consulate. (2) In that decision, the Court ruled on some crucial issues having to do with some of the most contentious subjects of constitutional law theory: separation of powers, and international law in the domestic context. (3) The result is a decision that has made it much more difficult for issues involving international obligations of the United States to be litigated in domestic courts, even where the President orders judicial resolution of those matters. What the Court failed to do was to address another crucial issue--that of federalism within the context of international obligations of the federal government and whether the federal government may mandate a state's compliance with an international obligation of the federal government. Indeed, the central event in this part of a long developing case and the genesis of Medellin is the fact that the President has sought to resolve the matter by requiring state courts to follow a ruling of the International Court of Justice (ICJ) in Case Concerning Avena and Other Mexican Nationals, (4) There the ICJ ruled that under the Vienna Convention on Consular Relations (VCCR) Article 36, (5) the United States had an obligation to see that foreigners arrested and ultimately convicted of capital crimes in the United States have the opportunity to consult with their nation's consulate. Since law enforcement officials in various states of the Union failed to do so in the cases raised by Mexico, the ICJ said that the United States should review and reconsider each of the cases of fifty-one Mexicans on various state death rows to determine if the failure to allow contact with local Mexican consulates affected their defenses. Because the implementation the ICJ decisions would have required state cooperation, the President issued a memorandum/order mandating this cooperation from state courts in states with any of the Mexican nationals covered by the ICJ's ruling. (6) Medellin v. Texas is the result of an effort of one of the Mexican nationals to implement the ICJ ruling within the U.S. court system. (7) Yet the Supreme Court's decision renders the obligation to follow the ICJ's ruling as a matter of questionable application domestically, while at the same time declaring the President's actions to implement international obligations beyond his powers. (8) The peculiar instance here is the government, through the President, sought to send the mandate to state court systems, which no doubt raised concerns from a separation of powers standpoint. (9)

As a result of the issuance of the decision without addressing federalism, the issue of whether state officials (of any branch) may be compelled to implement federal international obligations--remains a live issue. This issue is the focus of this article. The scope of examination will be about the ability of the federal government to mandate compliance by the states at any level. Though the Supreme Court did not directly address the issue, Texas did in its brief. What Texas calls "commandeering" in its brief is essentially a mandate by the federal government directing compliance with federal law--United States treaties and the obligations (such as the requirement to review in this case) that flow from them. (10)

According to the Court, Congress, instead of the President, possesses law making power, and can, (and may someday) seek implementation of international obligations at the state level, a scenario that, according to the Court's ruling in Medellin, should not be problematic. Yet beyond separation of powers, the issue of federalism raises the question of how far, if at all, the federal government may go in mandating implementation of international obligations at the state level.

As the question of the scope of the Tenth Amendment's vision of federalism arose from the President's order to state courts, Texas argued for a resolution based on the anti-commandeering doctrine, a theory of recent vintage within the past thirty years that serves to prevent the federal government from "commandeering state functions" and state officials. (11) This position was a relatively minor part of its overall argument, but when one looks at the nature of international law, particularly the nature of international law in this case, it is clear that a total abstention from requiring states to take or avoid certain actions affecting U.S. international obligations would be disastrous. The kinds of national responsibilities that have evolved in international law since the Second World War involve responsibilities frequently handled at the local level in federal states. (12) As in the present case, without the ability of the federal government to intervene at the state level, it will not be possible to consistently fulfill U.S. treaty obligations in such matters. Unfortunately, this failure has been the pattern of U.S. practice for such obligations in these areas. (13)

The controversy surrounding the issue of requiring state compliance in matters of treaty obligations begins with Supreme Court precedent relegating states to a secondary role in matters of national treaty obligations. (14) When it comes to treaties, the Tenth Amendment alone is not a barrier--states may not exert authority in areas covered by federal treaty obligations, and this conclusion is based on a nearly nine-decade-old precedent that has fared better in the federalism debate than cases involving domestic issues. (15) This barrier to state action is based in large part on the role of the national government in making foreign policy and the need of the nation to speak with one voice. (16) That same impetus forms the basis for the thesis of this paper--that the national government is empowered to require that states act or refrain from exerting authority in areas that affect international obligations of the national government. Of course, that authority is limited. No treaty may undermine civil liberties. In the context of state-federal relations, certainly no treaty may supersede constitutionally protected civil liberties. (17)

What remains unresolved is that of commandeering (or, to state it another way, mandating state compliance with the national government's international obligations) which is really a separate, though related matter. The anti-commandeering principle prohibits the federal government from coercing the states to implement federal policy by federal legislation or official action. (18) It is at once an extension of how the federalism rules are understood and at the same time a necessary precondition to any credible system of federalism.

However, if it is reasonable to consider the President's Order an attempt to commandeer the state courts in order to implement federal policy, the President's Order is regarded as unconstitutional under present case law whose decisions are based upon traditional Tenth Amendment analysis. Currently, there is no case law testing the same proposition within the context of the treaty power which is not limited by federalism concerns. Indeed, this article will discuss reasons why the commandeering doctrine should be interpreted along traditional Tenth Amendment lines, including the limitation of that amendment with regard to the treaty power.

This article, as well as the other articles in this Symposium, was written before the Court's decision. As the Court did not rule on the commandeering/federalism issue in Medellin, but most surely will in the future, the remainder of this article will be published as written, with the exception of this introduction and the conclusion, and some portions inside the article which reflect the timing of the decision.

The article begins with a summary of the events leading to the case before the Supreme Court. Part II looks at the defendant Medellin's trip through the criminal justice system from the crime to the Mexican government's involvement, and the steps to the Supreme Court twice, as well as the International Court of Justice's decision on which this issue is based. Part III reviews the key policy reasons why the United States must not be hampered by federalism concerns in pursuit of its foreign policy and treaty interests. The maxim that the government must speak with one voice in international matters is chronicled in this nation's Supreme Court case law and scholarly commentary. A companion policy comes from the debilitating limitations placed on the United States' ability to lead in the human rights area because present notions of federalism limit this country's ability to take part in treaties that address matters typically under state control in such a federal system.

Part IV reviews case law establishing the preeminence of foreign policy and the foreign affairs power over state power in treaties and the need to implement at the state level national obligations that are immune from Tenth Amendment scrutiny. Part V discusses the anti-commandeering doctrine which it argues is implicitly limited to domestic matters because its development establishes that it is suited for U.S. domestic matters and not foreign affairs matters. That part also acknowledges that even if the Court addresses the anti-commandeering doctrine in Medellin and finds it only applicable to domestic affairs, there remains a strong chance that the Senate will decline to ratify treaties without federalist limits, and that the whole Congress in implementation legislation will decline to mandate state compliance anyway. Finally, this paper suggests a solution or compromise that may loosen Congress's apprehension, which would allow the Court to defer to Congress in matters dealing with traditional issues in diplomacy, while reviewing legislation mandating compliance in other areas using a strict scrutiny approach allowing federal mandates where the government's national interest is compelling.


A. Facts

The ICJ held in the Avena case (19) that various states within the United States had violated the VCCR Article 36 by failing to notify Mexican consulates of the arrest status of fifty-one Mexican nationals on death row, sixteen of whom were sentenced in Texas. (20) The ICJ then required that the United States "shall provide, by means of its own choosing, review and reconsideration of the conviction[s] and sentences[s]" at issue. (21) What followed was a flurry of state official misstatements about the nature of international rulings such as the ICJ's, with regard to state governments. (22) Later, lawyers for one of the inmates on death row, Jose Ernesto Medellin, who was accused of the murder and rape of two teenage girls as part of a gang ritual, (23) appealed to the Supreme Court to reverse the Fifth Circuit Court of Appeals's denial of a federal writ of habeas corpus. (24) The defendant maintained that he did not receive advice regarding consular assistance during the early years of his case. Indeed the Mexican government did not even know of Medellin's circumstances until several years after his conviction when he was already on death row. (25)

After seeking and being denied a writ of habeas on the basis that Medellin's VCCR claim was untimely, Medellin sought a writ of habeas corpus from federal district court and was denied. (26) His appeal to the Fifth Circuit Court of Appeals was also denied on the basis that the Supreme Court had determined in Breard v. Greene (27) that the procedural default rule, which prevented him from raising the treaty in the state courts, after failure to do so at the earliest opportunity, was consistent with international obligations. (28) Medellin then requested a writ of certiorari, which the Supreme Court granted in December 2004. (29)

Following hearings before the Supreme Court, and prior to an expected ruling in early summer of 2005, President Bush took two measures. First, he issued what could best be described as a directive requiring state courts hearing cases of inmates covered by the Avena decision to provide the "review and reconsideration" of convictions and sentencing as required by the ICJ. (30) Second, he withdrew the United States from the Optional Protocol of the Vienna Convention under which the United States had made itself available for suit on a Convention matter before the ICJ. (31)

Instead of reaching the merits of the case, the Court decided, euphemistically, "to punt" and dismiss the case so that state courts could rule, pursuant to the President's directive, on whether Medellin and the other Mexican nationals on death row were prejudiced by the failure to follow the treaty's requirements (federal law under the Constitution) (32) because of the procedural default rule. (33)

Meanwhile, the Supreme Court ruled in the case of Sanchez-Llamas v. Oregon. (34) The parties to that suit were not among the fifty-one Mexican nationals named in the ICJ decision, and as such, the holding hinged only on the Court's interpretation of Article 36 of the VCCR. It declined to determine whether or not the treaty granted individual enforcement rights, and instead focused on whether or not suppression under the American exclusionary rule was warranted, and on whether or not the procedural default rule violated the treaty. The Court held on both issues against the individuals covered by the treaty. (35)

Thus began another tortured trail of habeas requests and appeals, and denials of appeals by the Texas criminal courts, resulting, three terms later, in the case currently before the Court.

B. Texas's Position on "Foreign Policy Federalism"

In its Supreme Court brief in Medellin, Texas basically stresses the separateness of federal and state mandates, which for the state, in this case, is "suppression of violent crime and the vindication of its victims." (36) The point is that the state's sovereignty should be respected in those areas of governance that are traditionally the role of the states. Like most things having to do with the Tenth Amendment, it has never been clear among the theorists, or in the Texas brief, whether that means any intrusion into crime suppression by the federal government would be unconstitutional, or just those intrusions that replace state authority for federal authority. Another way of expressing the two choices is whether the notion of dual sovereignty preempts the federal government from any law enforcement in the states, or just in those areas of law enforcement where the state traditionally acts. A state preemption does appear to be the direction Texas would like for the Court to go. If this is Texas's position, it would mean that once a federal policy touches upon state law enforcement, it must be left to the particular state. (37) But does this also mean that the federal government is powerless to do anything if a commission of crime crosses state borders perhaps invoking Commerce Clause jurisdiction for the federal government? The argument and the notion that crime suppression may never be the basis for federal action ignores the fact that a similar act on the same or similar subject matter may in fact be enacted by the federal government for different reasons than those of the state. In this case there is a foreign policy interest in meeting obligations of the VCCR. It is not the same interest of the state in crime suppression. The federal government has not intervened and replaced the state in crime suppression. It has simply exercised its powers on the same or similar subject matter but for different reasons.


The national government must have the exclusive role in foreign policy. The rationale for such exclusivity is rooted in the structure of the Constitution, the standard interpretation finding that the actual enumerated powers result in other powers, and, in the case of Congressional powers, powers that are necessary and proper to implement the enumerated powers. (38) In order to use the power as intended by the framers, the federal government needs the authority to effectuate its foreign policy, particularly when in treaty form, throughout the nation, as in the Medellin case, when a state court system is compounding damage done at the state executive level by ignoring federal treaty obligations. The only way to "fix" that problem is to mandate state compliance with the treaty obligation. The alternative would be a partial federal power constrained by the circumstance of whether or not the particular obligation involved implicates the role of the individual states through their police powers, or whether the obligation requires only action at the national government level. In the former, at present, there is no clear ability for the national government to act other than to prohibit state activity in the area. (39) But there is no established formula for the national government to mandate state compliance. The foreign affairs power and the preemption power, however, are two sides of the same power--preempting state activity alone does not go very far where a state has already taken an action and embedded itself in a particular area of activity, and international obligations require that state to undo its action or un-embed itself from that area. Hence, the federal government must be allowed to mandate state compliance where such a situation arises.

This section addresses these reasons in more detail and discusses particular problem areas where federalism concerns, unencumbered by sensitivity to foreign policy (particularly as embodied in the treaty power), create difficulties for the national government in international law.

A The Need to Speak with One Voice in Matters of International Affairs

An effective description of the "one voice" metaphor as used to describe the need for a single national government approach in matters of foreign policy is that of the need for collective action that discourages, or even prohibits, individual state deviation from the collective position of the federal government. (40) The position suggests that foreign policy represents a public good where all benefit from a harmonized negotiating position. (41) It is a public good that must be protected against parochial concerns and interests. Nonetheless, there is a need to reflect on the existence of legitimate state interests as the case law does not call for a complete dismissal of the principles of the Tenth Amendment. (42) Professor Maier suggests that consideration of these issues include the following questions:

(1) Does the limited constituency of the state provide an appropriate political context in which to make the policy judgment required to reach a decision?

(2) Is the pertinent information that must be weighed to determine the wisdom of the policy decision available to the state decision maker(s)?

(3) Will any possible adverse effects of the decision fall upon the entire nation or be localized within the state making the decision? (43)

Crosby v. National Foreign Trade Council (44) demonstrates these concerns in the context of sanctions legislation passed by the Massachusetts state legislature. The Supreme Court addressed a Massachusetts's state economic sanction against the regime in Burma (Myanmar). As the Congress later passed legislation authorizing federal sanctions, the Massachusetts law was challenged as having been preempted by the federal legislation. While the Court found preemption, (45) it also stated that the law interfered with the national government's need to speak with one voice:
 Again the state Act undermines the President's capacity, in this
 instance for effective diplomacy. It is not merely that the
 differences between the state and federal Acts in scope and type of
 sanctions threaten to complicate discussions; they compromise the
 very capacity of the President to speak for the Nation with one
 voice in dealing with other governments. We need not get into any
 general consideration of limits of state action affecting foreign
 affairs to realize that the President's maximum power to persuade
 rests on his capacity to bargain for the benefits of access to the
 entire national economy without exception for enclaves fenced off
 willy-nilly by inconsistent political tactics. When such exceptions
 do qualify his capacity to present a coherent position on behalf of
 the national economy, he is weakened, of course, not only in
 dealing with the Burmese regime, but in working together with other
 nations in hopes of reaching common policy and 'comprehensive'
 strategy. (46)

However, the one voice concept truly expresses a general exclusivity in the foreign policy area that need not be incarnate in specific legislation or rely upon preemption principles for its vibrancy. This has been confirmed by the Court in Zschernig v. Miller (47) where the Supreme Court ruled against an Oregon inheritance statute that required a verifiable reciprocity policy in a foreign country before parties living in that country could receive inheritance probated in Oregon, a policy understood to be directed at Soviet Bloc states. The Court ruled that the Oregon law was an unconstitutional encroachment into the federal government's foreign policy power. (48) In a concurrence, Justice Stewart stated the position most clearly:
 In my view, each of the three provisions of the Oregon law suffers
 from the same fatal infirmity. All three launch the State upon a
 prohibited voyage into a domain of exclusively federal competence.
 Any realistic attempt to apply any of the three criteria would
 necessarily involve the Oregon courts in an evaluation, either
 expressed or implied, of the administration of foreign law, the
 credibility of foreign diplomatic statements, and the policies of
 foreign governments. Of course state courts must routinely construe
 foreign law in the resolution of controversies properly before
 them, but here the courts of Oregon are thrust into these inquiries
 only because the Oregon Legislature has framed its inheritance laws
 to the prejudice of nations whose policies it disapproves and thus
 has trespassed upon an area where the Constitution contemplates
 that only the National Government shall operate. "For local
 interests the several States of the Union exist, but for national
 purposes, embracing our relations with foreign nations, we are but
 one people, one nation, one power." (49) "Our system of government
 is such that the interest of the cities, counties and states, no
 less than the interest of the people of the whole nation,
 imperatively requires that federal power in the field affecting
 foreign relations be left entirely free from local interference."
 Hines v. Davidowitz, 312 U.S. 52, 63. (50)

Moreover, the Court's characterization of the situation in Crosby has important implications for the circumstances in Medellin. Much of consular and diplomatic law is reciprocal in that the United States extends courtesies to diplomatic missions and consulates so that U.S. diplomatic and consular missions abroad are extended similar courtesies. The protection of the interests of American citizens traveling abroad, and their ability to receive assistance from local representatives of the U.S. government if apprehended by local law enforcement, is a quintessential example of this type of reciprocity. (5)1 Though the specific act of failure to provide consular notification is not before the Court now as it was earlier, the remedy for failure to notify is. The United States' ability to assure its citizens of consular access abroad is the kind of diplomatic activity that the Zschernig Court indicated is harmed when states' actions affect the foreign policy domain. (52) However, not only is the United States not speaking with one voice, it will be speaking with multiple voices on this issue if the Court fails to find that the President's Order is constitutional. That is because other states will follow Texas's example. This would mean that the U.S. government could not effectively assure other nations of its reciprocal compliance when entering into negotiations on this or any other subject involving a federal mandate to states.

B. Human Rights

The situation in Medellin represents a rare, but not necessarily unique, crossing of constitutional and international principles. The basic issue is about granting additional opportunities to individuals accused in the criminal justice system of the various states and not about a full scale appropriation of federal power over the states through the treaty power, a matter of major concern following the proliferation of U.S. post-war international obligations in the 1940s and 1950s. (53) Where the federal government enters into a treaty, and assuming that it does not contravene any other portion of the Constitution, states may not interfere with the federal government's obligations under current case law. (54) Human rights treaties and other treaties present the issue squarely. Though Article 36 of the VCCR is not a human rights treaty in name, it does deal with criminal justice in a manner defined multilaterally when the convention was negotiated. (55) As such, it is part of the burgeoning body of law that deals with the treatment of individuals by nation-states. Most of this law is human rights law addressing matters that in this federal system are handled at the state level.

Because of federalism concerns, the United States' approach to human rights treaties is to promise to do what it can to comply with treaties adding standard "federal state clauses" as reservations or declarations annexed to treaties. (56) Such a weak statement of commitment in the form of a reservation certainly raises questions about the legality under the law of treaties of such a declaration, or at least questions about the compromising of the credibility of U.S. diplomatic efforts, which are issues far beyond the scope of this article. (57) Commitments such as consular assistance under the VCCR are bound to implicate the states within a federal system, so that the states must act to carry out the national foreign policy interest.

U.S. interests are best served by allowing the federal government to enter into important international obligations without the impediment of notions of federalism best applicable to domestic policy scenarios. More directly, the federal government should have the option of requiring state compliance with treaty obligations.


The discussion of the anti-commandeering doctrine in foreign affairs can be divided into two parts. The first is the role of foreign policy in our constitutional scheme. The second has to do with the nature of the anti-commandeering doctrine in its "natural state" within the domestic sphere of constitutional analysis. Indeed, any examination of states, federal government, and foreign policy addresses federalism within a foreign policy context. The discussion here of the domestic sphere of the anti-commandeering doctrine reviews the power argument between the states and the federal government, and the fact that the states have been winning of late. It should be noted that even in the domestic context, the new federalism (58) does not represent an invincible policy argument. There remain strong policy and governance interests in maintaining federal law as the supreme, not the "dual" law of the land. (59) With these argued weaknesses in that thesis, the first prong of the argument shines the light of foreign policy on dual sovereignty and hopefully answers a central question: how is it possible to have a power as strong as the foreign policy power belong to the federal government while denying that government the authority to implement its power? More specifically in the context of treaties, the question becomes: how can a treaty be at once the law of the land, and (as will be established in this section) immune from Tenth Amendment "radiation" (60) but be susceptible to state stonewalling because the federal government has no authority to mandate state compliance with treaty obligations? There can be no doubt that little has changed since the Supreme Court's major rulings involving state authority in the light of federal international obligations. (61) The states lose these cases not merely because of the specific principles involved, but because of the broader principle that places foreign policy above state sovereignty in this Union.

A. The Treaty Power and Federalism

The notion of a treaty power derives from specific provisions in the Constitution. First, Section two of Article II defines the executive power as, among others, the power to make treaties with Senate advice and consent. (62) The Judiciary is empowered to hear cases involving treaties "made, or which shall be made" under the authority of the United States. (63) The Constitution also mentions treaties in the Supremacy Clause as the supreme law of the land. (64) The Constitution does not define the relationship between treaty obligations and the division of power between the federal government and the states. Instead, this task has been taken up by the judiciary, utilizing a structural analysis of the document and concepts regarding relationships between nations to define the contours. This task is unfinished business as the Court has not determined whether states may be subject to federal mandates to implement treaty obligations--yet the momentum appears to support a separation of the foreign and treaty powers from obligations derived from the Tenth Amendment's notion of federalism. (65) The stronger the momentum in favor of the treaty power's preeminence over federalism, the stronger that momentum swings in favor of the federal government's ability to mandate state compliance with treaty obligations. The most important case demonstrating this earlier momentum was Missouri v. Holland, (66)

L Missouri v. Holland

Holland involved a treaty between the United States and the United Kingdom as the colonial power ruling Canada at the time. The treaty was implemented by federal legislation which restricted the hunting of the migratory birds flying between the United States and Canada. (67) Missouri challenged the congressional legislation that conflicted with its own legislation that allowed hunting. Justice Oliver Wendell Holmes, writing for the seven-two majority, characterized legislation implementing treaties as superior to state laws and powers inasmuch as treaty law is the supreme law of the land. (68) The Supremacy Clause alone would certainty not be enough to justify the federal acts as Congress has often passed legislation that goes beyond its enumerated powers and infringes upon the authority of states. The Court, throughout its history, has turned back state legislation for such reasons Yet looking at the Supremacy Clause of the Constitution, ("[T]he Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...."), (69) one becomes aware of an interpretation of the clause that attaches supremacy to legislation and treaties differently. The laws of the United States are superior when made pursuant to the Constitution and treaties are superior when made pursuant to the authority of the United States. For Holmes's purposes, the language freed his majority from having to apply the Tenth Amendment in its limiting sense to federal treaty power in what was clearly a foreign policy matter.

2. The Need for Limitations

Holmes's opinion created substantial consternation about the apparently open-ended nature of the treaty power, creating a concern among some that the treaty power could trump the Constitution. This fear was likely unwarranted as Holmes did say that there were limitations and that those limits would have to be ascertained "another way." (70) In Reid v. Covert, (71) Justice Black purported to clarify the matter thirty-seven years later to describe the language of the Supremacy Clause as in pursuit of a particular mission:
 There is nothing in this language which intimates that treaties and
 laws enacted pursuant to them do not have to comply with the
 provisions of the Constitution. Nor is there anything in the
 debates which accompanied the drafting and ratification of the
 Constitution which even suggests such a result. These debates, as
 well as the history that surrounds the adoption of the treaty
 provision in Article VI, make it clear that the reason treaties
 were not limited to those made in "pursuance" of the Constitution
 was so that agreements made by the United States under the Articles
 of Confederation, including the important peace treaties which
 concluded the Revolutionary War, would remain in effect. (72)

But Black did not undermine the important principle in Holmes's opinion. As the opinion went on to read:
 There is nothing in Missouri v. Holland, 252 U.S. 416, which is
 contrary to the position taken here. There, the Court carefully
 noted that the treaty involved was not inconsistent with any
 specific provision of the Constitution. The Court was concerned
 with the Tenth Amendment, which reserves to the States or the
 people all power not delegated to the National Government. To the
 extent that the United States can validly make treaties, the people
 and the States have delegated their power to the National
 Government, and the Tenth Amendment is no barrier. (73)

Justice Black says a lot in a few words, some of which may conflict with a previous Supreme Court opinion, United States v. Curtiss-Wright, (74) and some of which may understate the argument for removing the Tenth Amendment as a barrier to the federal government's treaty making power. The case re-legitimated Holland by focusing on that decision's central holding. However, Black's language tends to weaken the holding on foreign policy as being merely a delegation from the states, and omits other aspects of Holmes's reasoning that suggests a far superior notion of power distinct from the federal system:
 Justice Black's argument that the following language from Article
 VI of the Constitution "Treaties made, or which shall be made,
 under the Authority of the United States" was to secure the
 continued validity of treaties concluded under the Articles of
 Confederation does not mean that Holmes was wrong. The phrase, "or
 which shall be made," covers treaties entered during the period of
 the Constitution as well. The language did not negate limitations
 on the Treaty Power, "but they have to be ascertained a different
 way" from the Tenth Amendment's limits on legislation. Limitations
 on the treaty power, the so-called "another way" would rely on
 structural considerations--considerations having to do with
 governance generally ("matters requiring national action, 'a power
 which must belong to and somewhere reside in every civilized
 government,'" Holland, 252 U.S. at 433 (quoting Andrews v. Andrews,
 188 U.S. 33 (1903)), and not with the text of the Constitution).

Black's holding in Reid calmed dissident fears over the extent of the treaty power, but the opinion was flawed in three ways. His concise treatment is a matter-of-fact articulation of a constitutional principle in need of much girding to avoid attack under the label of federalism. Additionally, he did not address the fact that the Supremacy Clause refers both to treaties before 1789 and to those that "shall be made" after 1789, which suggests more than an eight year loophole for pre-constitutional treaties. Finally, the cryptic statement does not reflect what one of Black's earlier Court brothers would have described as a rather majestic transference of power from one sovereign to another. (76)

What Reid does do is establish that the core principles of the Constitution, such as civil liberties, are not subject to elimination or curtailment due to international negotiation. To the extent that federalism is a core principle, Holland and Reid together can be read to mean that core principles that are not crucial to the conduct of foreign policy may not be compromised under the treaty power. This seems to be a reasonable start at reconciling the treaty power with the need for limits.

Another possibility for limitation is to simply assume, for the time being, that the treaty power and the legislative power operate in the same manner. McCulloch v. Maryland (77) establishes that there are at least some limits on the latter, though members of the Supreme Court and scholars argue to this day as to what they are, and this argument persists. This conversation goes on despite the Supremacy Clause. The clause was not the deciding factor in McCulloch since John Marshall was establishing definitional limits on Congress's power--that decision was essentially an ultra-vires discussion about Congressional power limits. (78) As it turns out, those definitional limitations define the vertical limitations from a federalist standpoint because of the way in which the Tenth Amendment was written--to define the power of the federal government by what was enumerated and by what was not reserved to the states. But the modern debate is at the margins of the implied powers, which were articulated by Marshall as accompanying enumerated powers. The discussion of the scope of federal power is at the margins, which is where all of the action was for Congress in the 1930s when the issue of Congressional power over commercial matters really came to a head. (79)

One could apply the limitations of McCulloch to treaties, but courts early on resisted that temptation. The Court in De Geofroy v. Riggs (80) stated:
 The treaty power, as expressed in the Constitution, is in terms
 unlimited except by those restraints which are found in that
 instrument against the action of the government or of its
 departments, and those arising from the nature of the government
 itself and of that of the states. It would not be contended that it
 extends so far as to authorize what the Constitution forbids, or a
 change in the character of the government, or in that of one of the
 states, or a cession of any portion of the territory of the latter,
 without its consent. (81)

That language suggests an almost McCulloch-like set of limits on the exercise of the treaty power. But the Court goes on to state:
 but, with these exceptions, it is not perceived that there is any
 limit to the questions which can be adjusted touching any matter
 which is properly the subject of negotiation with a foreign
 country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat.
 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys.Gen.
 417; People v. Gerke, 5 Cal. 381. (82)

The language is closer to Holland than McCulloch, and establishes, at the very least, a limit based on what is "properly the subject of negotiation with a foreign country." Holmes's language is a partial rejection of the textual limitation in Riggs, and an acknowledgment that the Tenth Amendment is not the key constitutional provision to apply here. The language in Holland suggesting a different route might have been suggested by the older Riggs language about the appropriateness of certain subjects for negotiation with a foreign country, but such a limitation is not favored. (83) Furthermore, Holmes provides his own limitation in Holland by defining the proper subject for treaties as those matters requiring national action. In one sense he is talking about uniformity because of the international stakes involved. Considering what was at stake in Holland--a bird treaty--perhaps suggests that for Holmes, the subject matter itself was not determinative. The net result of all of this is a separate treaty making power with only minor definitive limitations on its use supported by a supremacy clause that elevates it above state interests. According to Riggs, all one has to do is define what is "properly the subject of negotiation with a foreign country." But, this is a complicated and dangerous business. As the nation's foreign policy interests go, a matter of political concern, so goes the treaty power. To define so tightly the treaty power is to interfere with the political branches' use of treaties to effectuate foreign policy and puts the courts in the untenable position of ruling on political questions. (84)

Just as the treaty power is not limited by the Tenth Amendment, the ability to require that states not interfere with these treaty obligations is similarly not subject to that amendment's limitations, otherwise it is a power that is constantly subject to attack under the rubric of federalism, a result which undoes the principle holding of Holland. Holland essentially validates the constitutionality of VCCR Article 36's applicability to local law enforcement. That opinion establishes both the inapplicability of the Tenth Amendment to treaty matters and suggests the breadth of subjects that fall under the treaty power. A more searching evaluation of subjects "properly the subject of negotiation with a foreign country" is a political decision, at least it is so outside of the parameters set by Holland and Reid. The breadth of the subject matter amenable to treaty treatment follows U.S. foreign policy interests, as does the ability of the federal government to mandate state compliance with these international obligations. (85)

B. Foreign Policy and the Constitution

Several cases deal with foreign policy outside of the treaty context. Indeed, there is no broad blueprint for the general foreign affairs power, which is far less specific in the document than the treaty power, or its relationship to the federal/state division of authority. The cases rely upon a structural conception of a foreign affairs power within the Constitution and not upon specific language, as is the case with the treaty power. Nevertheless, the principle cases further establish the breadth of the federal government's foreign affairs authority in relation to the states.

The first case, United States v. Curtiss-Wright, (86) speaks to the exclusivity of the power to the federal government. But Curtiss-Wright, a controversial case to those who regard its description of the development of the foreign policy power as inaccurate, (87) provides a bit more substance to the discussion. In fact, that decision begins a landslide of decisions that establish, at least in the minds of Supreme Court justices from the 1930s at least up to the 1960s, that foreign policy is a superior federal concern, ousting state interests.

1. United States v. Curtiss-Wright

This case addressed a challenge to an executive ban on arms sales to participants in a regional war between Bolivia and Paraguay. Though not a case specifically about federalism, Justice Sutherland's description of the foreign affairs authority is instructive:
 As a result of the separation from Great Britain by the colonies
 acting as a unit, the powers of external sovereignty passed from
 the Crown not to the colonies severally, but to the colonies in
 their collective and corporate capacity as the United States of
 America. Even before the Declaration, the colonies were a unit in
 foreign affairs, acting through a common agency--namely the
 Continental Congress, composed of delegates from the thirteen
 colonies. That agency exercised the powers of war and peace, raised
 an army, created a navy, and finally adopted the Declaration of
 Independence. Rulers come and go; governments end and forms of
 government change; but sovereignty survives. A political society
 cannot endure without a supreme will somewhere. Sovereignty is
 never held in suspense. When, therefore, the external sovereignty
 of Great Britain in respect of the colonies ceased, it immediately
 passed to the Union. See Penhallow v. Doane, 3 Dall. 54, 80-81.
 That fact was given practical application almost at once. The
 treaty of peace, made on September 23,1783, was concluded between
 his Brittanic Majesty and the United States of America. (88)

It is one thing to say that a national government must have authority to conduct a foreign policy. It is another thing to say that it must conduct it exclusively. Sutherland, however accurate his depiction of history, attempts to establish not only the centrality of foreign policy, but its exclusiveness to the federal government as well. Both Curtiss-Wright and Holland place the states totally outside of the foreign policy autonomy arena--whether it is in the protection of the federal government's own interests, or in the implementation of its own policies, or in the implementation of federal foreign policies.

2. Zschernig v. Miller

The justification of foreign policy supremacy in the discussion of federalism gets even wider in Zschernig. Here, a state law limiting the right of inheritance to nonresident aliens only if they could meet three requirements of reciprocity was found unconstitutional as inconsistent with U.S. foreign policy--a policy not incarnate in any legal medium such as a law, treaty, or executive agreement--broadly determined. Crucial to the Court's determination was the fact that the state probate law injected the state into a matter of foreign policy by the language limiting inheritance, and by the state court having to assess whether inheritance conditions were reciprocal in a foreign state. According to Justice Douglas:
 As one reads the Oregon decisions, it seems that foreign policy
 attitudes, the freezing or thawing of the "cold war," and the like
 are the real desiderata. Yet they of course are matters for the
 Federal Government, not for local probate courts. (89)

Douglas distinguished Clark v. Allen, (90) involving a similar but permissive California probate law that was viewed by the Court as requiring simply a matching of laws, and not an assessment of conditions in the foreign country. (91) The Zschernig approach, according to Douglas, involved an affirmative act on the part of the state in policy judgments. The Clark approach was characterized as simply clerical. (92)

The breadth of the foreign affairs power is a matter that remains unsettled, though it is clear at least that the federal government may exercise it without regard for state authority. (93) As is the case with treaties, a limitation on the power is conceivable, but despite a lack of Court guidance on the issue, such a limitation probably does not reside in the Tenth Amendment. To the extent that a subject matter limitation applies, it probably can be no more intrusive into the power than that suggested under treaties. The limitation applies only to values not crucial to U.S. foreign policy interests.

C. Application to Medellin

In Medellin, the Texas criminal laws in question (criminal procedural default rules) are not as invasive into foreign affairs as the California law in Clark v. Allen. Even though the probate law did, on its face, insert California into foreign affairs, the effect, at least according to Douglas, was essentially neutral. In the present case, however neutral the Texas state criminal law is, the implementation of the law is anything but neutral. The state court's refusal to re-examine the use of procedural default rules which prevented Medellin from raising his consular assistance rights when he learned of them, and its current refusal to submit to review and reconsideration of the case, interferes with an obligation of the United States under a treaty. It effectively places Texas in the position of deciding the foreign policy position that will be taken with regard to the alien inmates in its prisons, as did Oregon with regard to probate matters under its jurisdiction. Though the article will soon explore the authority of the federal government to mandate compliance, it is clear, though not articulated in the Court's decision, that the refusal to apply the Avena decision to Medellin and other cases does not find support in the Tenth Amendment.

In Zschernig, it was sufficient to rule the statute unconstitutional--subsequent inheritances would be honored wherever they were to be distributed. However, in Medellin, in order to reach the same substantive place reached in Zschernig, an affirmative act must take place--Medellin and others on death row must be granted a hearing following the terms of the ICJ's ruling. Without the ability of the federal government to mandate such an action, U.S. foreign policy is constrained and controlled by the character of the state action involved, and this outcome does not fit the characterization of the federal foreign policy power.


In its brief, Texas argues that the President's order contravenes federalism principles embodied in the anti-commandeering doctrine. (94) Texas described that doctrine as a recognized protection of "the State's residual sovereignty" evident through "the Framers rejection of] a system under which the States would have operated as the instruments of the federal government...." (95) While the previous section demonstrated the breadth of the treaty and foreign affairs power of the federal government, this section will demonstrate that the jurisprudence of the commandeering doctrine is based upon a domestic premise and is inapplicable to foreign affairs.

A. The Anti-Commandeering Principle: A Diversion in the Development of Foreign Policy Federalism

While at odds with the position of this article, in an earlier ICJ case dealing with U.S. failures under the VCCR, the United States took the position that although the Secretary of State had requested the state of Virginia to grant a stay of execution of a Paraguayan national in order to comply with a "provisional measures" order issued by the ICJ, (96) the United States did not have the power to require that the state issue the stay. (97) In the U.S. case of Breard v. Greene, (98) the name of the case as it wound its way through the state and federal courts, the U.S. Supreme Court declined to stay the execution, and Breard was executed.

The case is a classic example of the inertness (perhaps deliberately chosen) of the federal government under a mistaken interpretation of its inability to mandate state compliance with U.S. treaty obligations. But, as this section will demonstrate, such a conception of state power is not dictated by the principles behind the anti-commandeering doctrine.

1. State Police Power

States need no such specific authority in many areas, including criminal justice. The police power concept is a general and encompassing one that many regard as the genius of the U.S. federal system. (99) It has been regarded as a double check to ensure personal liberties, a buffer between individuals and the awesome power of the central government. (100) As such, a whole realm of powers that formerly belonged to central governments (as was the case with Great Britain during colonial times), (101) were ceded to the states and the vehicle for this innovation was the Tenth Amendment. The Amendment reads:
 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. (102)

The language presumes a corpus of authority from which the Constitution handpicked certain powers for the federal government. The remainder of those powers would either remain or be granted to (however one understands the term reserved) to the States or the people, either an amorphous body of people or a people defined by the state jurisdiction in which they reside. (103)

The conundrum that has existed since the beginning of the Union, and which had its most important judicial airing in McCulloch v. Maryland (104) is where the line, that is clearly implicated in the Tenth Amendment, is to be drawn. Well into the history of this Union, there is no sure answer. This is true in large part because of the Court's recognition in McCulloch that the enumerated powers attributed to the Congress in Article I carried with them certain implied powers. The notion of implied powers, however, carries with it the danger of manipulation by power hungry Congresses and, to the extent that the implied powers notion applies elsewhere, the total federal government. Yet, at least in the area of domestic law and policy, there are some nearly clear signposts to aid in analysis. The cases base their prohibition of commandeering on domestic concerns.

2. The Anti-Commandeering Doctrine's Jurisprudence

On the one hand, it seems to make sense that if one is to have a federal union, the federal government should not be able to step in and take over state functions through legislation. On the other hand, such a proscription requires the establishment of a clear line that separates take over from acceptable areas of federal regulation. This line was established by the mid 1980s, and to the extent that a credible separation could be developed between taking over state operations and general regulation, federal interests were clearly limited by the prohibition on "commandeering."

a. The Commandeering Doctrine as Creation of Commerce Clause Jurisprudence

After almost forty years of untrammeled congressional authority in regulatory matters based on the invigorated commerce clause, finally a scenario that could have allowed some limitation to the commerce juggernaut confronted the Supreme Court in National League of Cities v. Usery. (105) This case was the first major decision which dealt with state autonomy as a separate matter from state authority. Here, the federal government attempted to enforce congressional legislation based on the Commerce Clause dealing with employment standards on state government workers. The Court, in an opinion by Justice Rehnquist, found the federal government's attempt excessive. Unlike earlier cases where Congress's commerce power was found to be expansive, covering regulatory opportunities within state jurisdiction where such activities affected interstate commerce, here Congress was seeking to regulate the state itself and not just activities within its jurisdiction. (106) That adventure was halted, for a while, by the opinion in National League. To Rehnquist, the theory of dual sovereignty meant that states and the federal government have their own areas of authority that may not be infringed upon, applied here as kind of a superlative condemnation of the federal government's taking over a state responsibility for its own employees. In concurrence, Justice Blackmun held back a little to ponder future cases by stating that there may be areas in which the federal interest is "demonstrably greater and where state facility compliance with imposed federal standards would be essential." (107)

The next several years were chaotic as the Court struggled to develop a jurisprudence that addressed this newly noticed limitation on the commerce power via the Tenth Amendment. Justice Marshall, in Hodel v. Virginia Surface Mining & Reclamation Ass'n, (108) warned against federal legislation that had the effect of "[commandeering] the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program." (109) Several cases (and more chaos) later, Justice Blackmun, tired of the whole enterprise, wrote an opinion overturning National League in Garcia v. San Antonio Metropolitan Transit Authority. (110) The brevity of National League's status as stare decisis was due to the fact that in order to limit the federal government's role, it was necessary to self-define essential government functions, a task that Blackmun said gave itself to judicial preferences and not objective determinations. (111) So while the federal government was free to resume regulating state activities by 1985, by 1992 the Court once again developed limits on the Court's commerce power as applied to state autonomy. (112) However, Blackmun's concurrence in National League planted an important seed suggesting that there may be some matters where state cooperation would be "essential."

b. Displacing State Functions in Lieu of Federal Domestic Policy

In New York v. United States, (113) Justice O'Connor ruled on federal legislation that would have forced New York to pass legislation "taking title" to low-level radioactive waste within the state if the state failed to meet other disposal requirements. This provision was held either to violate the Tenth Amendment or to be beyond Congress's enumerated powers. The situation in this case involved a direct attempt to manipulate state legislation by Congress. Where Garcia dealt with federal regulation of states in the same manner as it would private interests (in that case as employers, requiring compliance with federal labor laws), the New York case saw Congress regulating the governing process of state government itself. O'Connor's objection was that Congress cannot simply commandeer state legislative activity by directly compelling certain legislation pursuant to Congressional policy. (114) This principle is from Hodel, which was part of the National League jurisprudence which was overruled. O'Connor's rationale was that the federal plan was inconsistent with the history and design of the federal system of dual sovereignty.

Justice O'Connor also suggests a particularly domestic critique of the federal government's effort at commandeering stating that the practice allows the federal government to mask its accountability for actions it has required of the states, in the case being decided the acquisition of title to hazardous waste. She states:
 [W]here the Federal Government directs States to regulate, it may
 be state officials who will bear the brunt of public disapproval,
 while the federal officials who devised the regulatory program may
 remain insulated from the electoral ramifications of their
 decision. Accountability is thus diminished when, due to federal
 coercion, elected state officials cannot regulate in accordance
 with the views of the local electorate in matters not preempted by
 federal regulation. (115)

The above passage is useful in a few ways. First, the issue of accountability is not one that either state or federal officials need worry about in matters of foreign policy--states have no foreign policy powers and electorates will attribute any compelled state action touching this area to the federal government. Furthermore, in foreign policy matters, local officials may not "regulate in accordance with the views of the local electorate" (116) for the obvious reasons. In essence, the accountability concerns are simply not applicable to the foreign affairs arena. Justice O'Connor's suggestion along with Justice Blackmun's hedge in his National League concurrence suggests principled boundaries for the principle.

New York v. United States served as the basis for Justice Scalia's opinion in Printz v. United States. (117) Justice Scalia delivered the opinion of the Court on the issue surrounding the federal requirement that chief law enforcement officers (CLEOs) run background checks on gun purchasers until a national system is in place under federal gun control legislation known as the Brady Bill. (118) The opinion found the requirement constituted commandeering, a conclusion he based on constitutional history and practice. (119) In the opinion, Scalia draws a distinction between this unconstitutional practice and, among other things, early laws impressing state courts to enforce federal laws, which were permitted on the basis that it was the state courts and not state executive officers who were enforcing federal law. (120) The opinion states that state courts are mandated to apply federal law by the Supremacy Clause and that nothing relating to commandeering is implied by the case of Testa v. Katt. (121) Finally, Scalia notes that commandeering is "fundamentally incompatible with our system of dual sovereignty."

Printz provides some support for the position of this article. In addition to being premised on the unique nature of domestic division of power, Justice Scalia argues that, though not directly on point with his dual sovereignty approach, decentralization, a value of our federal system, is not suited for every circumstance. He argues that by decentralizing the presidential function of enforcing the laws of the United States, "[t]he unity in the Executive Branch of the Federal Government would be shattered, and the power of the President would be subject to reduction, if Congress could ... require state officers to execute its laws." (122) Though calling for a different practical result than proposed in this article, Printz involved a policy implementation which Scalia feared may be unduly decentralized. In matters of foreign policy as in Medellin, however, the danger of decentralization is not in the disparate and uncoordinated implementation, but in the failure to implement foreign policy brought on by decentralization.

Scalia also declined to consider the government's argument of other schemes enlisting state participation in implementing federal policy, including data collecting mandates from the federal government to the states. While leaving the door open to deal with the matter later, he doubted whether such programs of "such recent vintage" would counter the historical analysis which informed the conclusion drawn in the opinion. (123) This portion of the opinion is significant because in concurrence, Justice O'Connor viewed with favor the Court's decision to decline to address data collection mandates such as the national data base for missing children. As this issue has not been addressed in subsequent cases, the commandeering ban is not total, though neither the opinion nor the concurrence suggests why data collection would be substantively different other than in degree. With the decentralization critique, Scalia offers some important considerations for limitations on the theory. These limitations almost appear definitive when combined with language from Justice Blackmun's opinion in National League reserving to the federal government essential interests of the national government and Justice O'Connor's accountability concerns in New York.

Finally, Justice Scalia's refusal to treat Testa v. Katt, which established that state courts must enforce federal law as relevant to the commandeering argument, reinforces at least part of the thesis of this article. In Justice Scalia's neatest qualifying trick in the case, he suggests that case was limited to the proposition that the Supremacy Clause requires state courts to enforce federal law, and nothing more. (124) This is exactly the situation precipitating the present Medellin case. In its first trip to the Supreme Court after certiorari was granted and before the President's memorandum ordering review and reconsideration was issued, Medellin was challenging the lower courts, including the Texas Court of Criminal Appeals, for not following federal law--the VCCR, a self-executing treaty representing U.S. obligations. (125) The fact of the matter is, Testa v. Katt is not being applied in Texas, certainly not in Medellin, and if the readings of New York and Printz are viewed as universally restrictive, how does one get recalcitrant state courts to enforce federal law without mandating compliance? (126)

The reasoning in Printz and its domestic setting does not set the stage for an anti-commandeering foreign policy principle. By declining to decide the constitutionality of some federal mandates and recognizing the need for unity in the power of the federal executive, Printz may even support the idea that federal mandates in the foreign policy area do not offend the Constitution.

B. The Role of Federally Mandated State Compliance with Federal Treaty Obligations

A federal mandate that states must comply with federal treaty obligations can take many forms. In Medellin, that mandate takes the form of a presidential order. Like the mandates ruled unconstitutional domestic commandeering in New York and Printz, it could take the form of legislation. In either circumstance, if a treaty obligation preempts state authority in a particular area, as established in Holland, (127) the means to carry out that obligation or undo any actions conflicting with that obligation would be provided in such a mandate. Unlike the domestic cases discussed earlier, this authority would not simply be an effort to implement a congressional whim under cover of state legislation, but a far more pressing matter having to do with the prestige of the nation and vital interests in the subject matter of the treaty, relations with a treaty partner, and the standing of the United States in the international community, or all three--at least.

C. Senatorial and Political Refusal

The arguments in this article, hopefully, will be persuasive enough to influence decision and policy makers of the utility of allowing the federal government to mandate state compliance with treaty obligations. Despite the Supreme Court's silence on the issue in Medellin, there remains an ambivalence toward federal intrusions on the states even where the intrusions are necessary to fulfill international treaty obligations. In fact, between federal/state clauses and Senate and Congressional limitations on the applicability of many treaties domestically, particularly with regard to states, the President may be the only federal officeholder even interested in testing the commandeering doctrine within the foreign policy context. This does not change the constitutional appropriateness of allowing the federal government to mandate compliance by the states. But from a political standpoint, as noted by Professor Henkin, the federal government has frequently followed the principles of the "Bricker Amendment," especially with regard to requiring state compliance. (128)

D. Political Process as a Limiter

The anti-commandeering doctrine which places restraints upon the federal government's attempts to mandate state compliance has been shown to have a natural limitation in that the cases dealing with the doctrine have arisen in a domestic context and that there exist no cases addressing the role of the doctrine in foreign affairs, least of all with regard to treaty obligations. Medellin, if it is decided on this point, will be the first to fully address this issue. The Court may choose the easy route by relying on Printz, the closest of the anti-commandeering decisions to the present facts, or it could read Testa v. Katt for a judicially based limitation or exception to the doctrine. The wiser course urged here is to find that the anti-commandeering doctrine has no place in the reality of U.S. foreign affairs, particularly when it comes to the treaty power.

But if a limit on federal power over the states is needed, one can borrow from the due process/equal protection jurisprudence, and particularly that of United States v. Carotene Products. (129) Carolene Products established the basic parameters from which strict scrutiny analysis was developed and by which due process and equal protection cases have been handled since the decision in 1943. Carolene Products indicated in dicta that certain subjects of legislation deserve special constitutional protection and should, therefore, receive heightened scrutiny by the courts to determine constitutionality. (130) Except in these protected areas, courts should defer to the political branches, presuming the constitutionality of their actions with a minimum amount of scrutiny. The determiner of whether to accord heightened or minimum rational scrutiny is determined on the basis of whether or not the interests affected can access the political process for protection, or whether specific constitutional rights are implicated. An example of the kind of concern that would garner this heightened scrutiny would be whether or not the state action discriminates against "discrete or insular minorities," who would not otherwise be able to protect their interest through the political process. (131) The rationale is that courts should defer to legislative and/or executive judgment until it can be established that the political process would be ineffective in controlling national government power. Typically where constituencies are understood to have access to political processes to protect their interests, the Court has refrained from inserting its judgment, unless minimum standards are not met.

There is no reason to doubt that states and their citizens are capable of resorting to political processes if and when the use of the federal treaty mandate to compel state or local action overwhelms notions of the proper role for the national government. In other words, there is little evidence of a "democracy deficit" with these constituencies. As a result, the Court could apply heightened scrutiny where the federal government is attempting to mandate state compliance when a treaty addresses a subject that is not a traditional subject for treaties. Courts could simply ask whether or not there is an important or compelling reason for requiring states to comply with the international obligation. Most likely, the case of consular relations would be considered a quintessential subject of international negotiation. An attempt to force state compliance in a traditional treaty area would receive the lesser scrutiny to determine that the government has a rational need for state compliance. Under this proposal, courts would not rule on the appropriateness of the subject of a treaty, something noted earlier that would get courts into the business of deciding political questions.

Of course, the thesis of this article is that none of this is really necessary because federally mandated state compliance with U.S. treaty obligations is consistent with the treaty power in the Constitution.


The Court's decision will lead to the execution of Jose Ernesto Medellin without review and reconsideration of his conviction and sentence which, however appropriate the sentence for his heinous crime, would be a violation of United States' obligations under the VCCR and our obligations to follow decisions of the ICL The Court's reasoning centering on the doctrine of self-execution and presidential powers, will be the subject of debate for some time. The rule of decision in Medellin presents a standard that is, as argued elsewhere in this Symposium, a flawed and disappointing approach to the domestic implementation of international law. Yet further troubles are ahead even if the Court's standards are met. Those obligations requiring state cooperation will be further held up despite Congressional authorization because of Tenth Amendment arguments flowing from the anti-commandeering doctrine. This doctrine is simply not suited for foreign affairs/treaty matters. The treaty power is clearly uninhibited by the Tenth Amendment and theories to limit the power raise political question issues. The development of the anti-commandeering principle in its domestic orientation buttresses the foreign affairs/treaty power argument. Justice O'Connor suggests that federal officials should take the heat for mandates forced upon state and local governments lest those government officials be blamed for a particular federally mandated policy. Yet, in foreign affairs there can be no mistaking the identity of the responsible government--foreign affairs is the sole responsibility of the federal government. Certainly Justice Scalia's argument that decentralization is not appropriate in every circumstance, though directed at ending mandated enforcement of federal law by state officials, does possess a certain level of support for the need for the government at least to speak with one voice, even if that voice is through the actions of state officials. Decentralization in the foreign policy area (particularly where specific obligations to follow treaty language are expected from treaty partners) is, and has been, a disaster.

When the Supreme Court focuses on the anti-commandeering doctrine it should find that the doctrine simply is not suited for foreign affairs. If it finds that it is suited for foreign affairs, the Court would have to have re-evaluated the role of the treaty power, dual sovereignty and the authority of the federal government in foreign affairs. It would amount to a weakening and a destabilization of federal authority in a federal state to control its foreign policy. Nothing good can come of such a re-evaluation.

(1.) 128 S. Ct. 1346 (2008).

(2.) See generally Reynaldo Anaya Valencia, Craig L. Jackson, Leticia Van de Putte & Rodney Ellis, 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 (2005).

(3.) The Court granted a writ of certiorari on April 30, 2007, to hear the following issues:

1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States' treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?

2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

Petition for Writ of Certiorari at I, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 119139.

(4.) 2004 I.C.J. 12 (Mar. 31).

(5.) Vienna Convention on Consular Relations (VCCR) art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR Art. 36].

(6.) The President's Memorandum reads:
 The United States is a party to the Vienna Convention on Consular
 Relations (the "Convention") and the Convention's Optional Protocol
 Concerning the Compulsory Settlement of Disputes (Optional
 Protocol), which gives the International Court of Justice (ICJ)
 jurisdiction to decide disputes concerning the "interpretation and
 application" of the Convention.

 I have determined, pursuant to the authority vested in me as
 President by the Constitution and the laws of the United States of
 America, that the United States will discharge its inter-national
 obligations under the decision of the International Court of
 Justice in the Case Concerning Avena and Other Mexican Nationals
 (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar.
 31), by having State courts give effect to the decision in
 accordance with general principles of comity in cases filed by the
 51 Mexican nationals addressed in that decision.


Memorandum from George W. Bush, President, United States, to U.S. Att'y Gen. (Feb. 28, 2005), available at

(7.) See Valencia et al., supra note 2, at 491-94; infra Part II (for full discussion of Medellin's case prior to the writ of certiorari).

(8.) The questions presented address the obligations under the VCCR and the Optional Protocol to the Vienna Convention obligating the United States to recognize jurisdiction of the ICJ to hear disputes under the treaty. Article I of the Optional Protocol provides:
 Disputes arising out of the interpretation or application of the
 Convention shall lie within the compulsory jurisdiction of the
 International Court of Justice and may accordingly be brought
 before the Court by an application made by any party to the dispute
 being a Party to the present Protocol.

Vienna Convention on Consular Relations and Optional Protocol art. 1, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 262 [hereinafter VCCR Art. 1]. The court decided that the relevant treaties involved were not self-executing and enforceable in the United States, and that the Congress, not the President was the appropriate vehicle for implementing the order of the ICJ, as the government's sole "law making" authority.

(9.) 16A Am. Jur. 2d Constitutional Law [section] 251 (2007). The focus by the Court on separation of powers had to do with the division of powers between the Congress and the President. Using Justice Jackson's concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), the majority reasoned that the President's actions amounted to law making, authority he did no possess nor was it delegated to him implicitly of otherwise by Congress.

(10.) See Brief for Respondent at 9-12, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 2428387.

(11.) See infra Part V.

(12.) See generally Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567 (1997).

(13.) See infra Part V.C.

(14.) Missouri v. Holland, 252 U.S. 416, 434-35 (1920).

(15.) Id. Since Holland, the Supreme Court has held three major positions on the proper federalism balance between the states and the Federal Government in the regulation of interstate commerce, the most prolific battleground of the federalism debate in the last century. At the time of Holland, the Court viewed economic regulation as primarily a state responsibility. Hammer v. Dagenhart 247 U.S. 251 (1918). In the late 1930s and early 1940s, the Court retreated from its scrutiny of Congressional regulation. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). More recently, the Court has returned to scrutinizing Congressional commerce legislation as relating to state authority. United States v. Lopez, 514 U.S. 549 (1995).

(16.) See Zschernig v. Miller, 389 U.S. 429, 442-43 (1968) (Stewart, J., concurring).

(17.) Reid v. Covert, 354 U.S. 1, 16-18 (1956).

(18.) See infra Part V.

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

(20.) Valencia et al., supra note 2, at 455.

(21.) Avena, 2004 I.C.J. at 61.

(22.) See Valencia et al., supra note 2, at 455-56.

(23.) The following excerpt describes the circumstances of the crime and arrest:
 Charged with capital murder and held without bond were: ... Jose
 Ernesto Medellin, 18, of the 9000 block of Brackley ... Sources
 said they [the accused] were bragging of the rapes and killings in
 their jail cells Tuesday. All the suspects have given signed
 statements to police, officers said.

 Police said Jennifer Lee Ertman, 14, and Elizabeth Pena, 16, were
 taking a shortcut to Pena's house in the 1600 block of Lamonte from
 a party at the Springhill Apartments in the 4200 block of West 34th
 Thursday night.

 The girls' path took them from the back of the complex down a trail
 to a railroad trestle, where police said the suspects were hanging
 out and drinking beer. The girls were attacked and dragged into the
 woods, police said.

 A police source said the girls' clothes were torn, and the charges
 state both girls were sexually assaulted. Ertman then was
 strangled; Pena's cause of death has not yet been determined ...

 Police would not discuss the motive for the slayings, but callers
 from the neighborhood have suggested everything from a gang
 initiation rite to an insult to a rival gang, with which one or
 both of the girls was reportedly friendly.

T.J. Milling & S.K. Bardwell, Six Teens Held in Two Girls' Rape-Murders; 'Vicious' Youths Reportedly Were Bragging in Their Cells, Houston Chron., June 30, 1993, at Al.

(24.) Medellin v. Dretke, 371 F.3d 270, 274 (5th Cir. 2004), cert, granted, 543 U.S. 1032 (May 20, 2004) (No. 04-5928).

(25.) Brief for Petitioner at 10-11, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928) (referencing Memorial of Mexico f 235, Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31)).

(26.) Medellin v. Cockrell, No. H-01-4078, slip op. at 1 (S.D. Tex. June 25, 2003)

(27.) 523 U.S. 371 (1998).

(28.) Medellin, 371 F.3d at 280.

(29.) Medellin, 371 F.3d at 270.

(30.) See Valencia et al., supra note 2, at 458.

(31.) See Frederic L. Kirgis, Addendum to ASIL Insight, President Bush's Determination Regarding Mexican Nationals and Consular Convention Rights, Am. Soc'y Int'l L., Mar. 2005,

(32.) U.S. Const, art. VI, cl. 2. "[L]aws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...." Id.

(33.) Procedural default refers to the situation where a criminal defendant does not raise issues regarding defense at a time called for under the rules of the jurisdiction (state or federal) where he or she is being tried. Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 Am. J. Crim. L. 203, 225 (1998).

(34.) 126 S. Ct. 2669 (2006).

(35.) The Court ruled, consistent with the ICJ, that suppression was not an appropriate remedy under the treaty as the treaty did not involve fundamental rights akin to the rights in the Fourth and Fifth Amendments. Further, the VCCR's instruction that the requirements of that treaty were to be exercised in conformity with the laws of the signatories justified the use of the procedural default device to keep the VCCR issue out of the criminal litigation in that case since it was not raised at trial.

(36.) Brief for Respondent, supra note 10, at 39-40 (quoting United States v. Morrison, 529 U.S. 598 (2000)).

(37.) The Tenth Amendment reads: "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." U.S. Const, amend. X.

(38.) See Louis Henkin, Foreign Affairs and the Constitution 15 (2d ed. 1996). Though the Constitution does not specifically vest foreign policy concerns with the federal government, and though the actual list of foreign policy matters in the Constitution is a limited one, all of the foreign policy enumerations in the document empower either the Executive or Legislative branches of the federal government. Where the states are mentioned with regard to foreign policy, it is to restrict their role in the area.

(39.) See Missouri v. Holand, 252 U.S. 416, 434 (1920).

(40.) Edward T. Swaine, The Undersea World of Foreign Relations Federalism, 2 Chi. J. Int'l L. 337, 343 (2001).

(41.) Id.

(42.) Justice Holmes, in Holland, acknowledges as much in stating:
 We do not mean to imply that there are no qualifications to the
 treaty-making power; but they must be ascertained in a different
 way. It is obvious that there may be matters of the sharpest
 exigency for the national well being that an act of Congress could
 not deal with but that a treaty followed by such an act could, and
 it is not lightly to be assumed that, in matters requiring national
 action, "a power which must belong to and somewhere reside in every
 civilized government" is not to be found.

Holland, 252 U.S. at 433 (quoting Andrews v. Andrews, 188 U.S. 14, 33 (1903)).

(43.) Harold G. Maier, Special Issue: The United States Constitution in its Third Century: Foreign Affairs: Distribution of Constitutional Authority: Preemption of State Law: A Recommended Analysis, 83 Am. J. Int'l. L. 832, 838 (1989).

(44.) 530 U.S. 363 (2000).

(45.) In many ways, the situation in Medellin is a case of field preemption or that of a dormant foreign policy power. See generally Carol E. Head, The Dormant Foreign Affairs Power: Constitutional Implications for State and Local Investment Restrictions Impacting Foreign Countries, 42 B.C. L. Rev. 123, 123, 134-50 (2000) (giving account of dormant foreign affairs power doctrine).

(46.) Crosby, 530 U.S. at 381-82.

(47.) 389 U.S. 429, 441 (1968).

(48.) Id.

(49.) Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889).

(50.) Zschernig, 389 U.S. at 442-43.

(51.) Stephen M. Schwebel, a judge on the World Court from 1981-2000 and its president from 1997-2000, has declared:
 No country has more at stake in performance under the [Vienna]
 treaty than does the U.S., many thousands of whose citizens travel
 the world. When Americans abroad are arrested, the importance of
 assuring that they can contact a U.S. consul in order to
 communicate with their families and benefit by the assistance of
 legal counsel is obvious. But it is reciprocal. If police and
 courts in the U.S. routinely ignore their obligations under that
 convention, how can it be expected that U.S. nationals will enjoy
 its protection?

Stephen M. Schwebel, Letters to the Editor, Why We Need International Court of Justice, Wall St. J., Apr. 14, 2004, at A15 (emphasis added).

(52.) See Zschernig, 389 U.S. at 441. The Court in Zschernig stated:
 As we stated in Hines v. Davidowitz, 312 U.S. at 64: Experience has
 shown that international controversies of the gravest moment,
 sometimes even leading to war, may arise from real or imagined
 wrongs to another's subjects inflicted, or permitted, by a


(53.) See infra note 67 and accompanying text.

(54.) Missouri v. Holland, 252 U.S. 416, 434-35 (1920).

(55.) The ICJ specifically ruled that access to consular officials after arrest did not constitute a fundamental right, a finding that prevented the court from calling for the release of Medellin and others similarly situated and covered by the suit by Mexico. See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, [paragraph] 50 (Mar. 31).

(56.) See U.N. Human Rights Comm., Comments on United States of America, Part C, U.N. Doc. CCPR7C/79/Add 50 (1995), available at Consider the United States' declaration to the International Covenant on Civil and Political Rights: That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant. Id.

(57.) Louis Henkin, U.S. Ratification of the Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341, 341-44 (1995); see also Vienna Convention on the Law of Treaties art. 19(c), opened for signature May 23, 1969, 1155 U.N.T.S. 331. While acknowledging the utility of reservations in human rights treaties, Henkin suggests that such reservations not be more than is necessary to prevent conflict with the Constitution. Moreover, where a constitutional conflict is not an issue, just a present interpretation of minimum constitutional standards, Henkin sees no reason for qualifying reservations:
 Reservations designed to reject any obligation to rise above
 existing law and practice are of dubious propriety: if states
 generally entered such reservations, the convention would be
 futile. The object and purpose of the human rights conventions, it
 would seem, are to promote respect for human rights by having
 countries--mutually--assume legal obligations to respect and ensure
 recognized rights in accordance with international standards. Even
 friends of the United States have objected that its reservations
 are incompatible with that object and purpose and are therefore

Henkin, supra, at 341-44.

(58.) The term is used to highlight trends in Supreme Court jurisprudence that includes the anti-commandeering decisions of New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997) (discussed in section V.A.2, infra), as well as United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), that reconsidered Congressional power to legislate in areas of intra-state concern.

(59.) New York, 505 U.S. at 163-68.

(60.) Holland, 252 U.S. at 434.

(61.) United States v. Lara, 541 U.S. 193 (2004) (reaffirming principle of Holland see infra Part IV.A.1).

(62.) U.S. Const, art. II, [section] 2.

(63.) See President's Memo, supra note 6.

(64.) See U.S. Const, art. VI, cl. 2 .

(65.) See infra Part IV.

(66.) 252 U.S. 416 (1920).

(67.) Id. at 430-31.

(68.) Id. at 432.

(69.) U.S. Const, art. VI, cl. 2.

(70.) Yet fear was the motivating factor behind the Bricker Amendment, which was proposed by Ohio Senator John Bricker in the 1950s in response to an increase in U.S. treaty obligations, and in particular the U.S. obligations under the Charter of the United Nations. The amendment was never passed, but would have amended the Constitution to include the following:

Section 1. A provision of a treaty, which conflicts with this Constitution, shall not be of any force or effect.

Section 2. A treaty shall become effective as internal law in the United States only through legislation, which would be valid in the absence of a treaty.

Section 3. Congress shall have the power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties in this article.

Section 4. The Congress shall have the power to enforce this article by appropriate legislation.

As will be discussed, to the extent a treaty conflicts with the civil liberties guarantees in the constitution, that treaty is unconstitutional.

(71.) 354 U.S. 1 (1957).

(72.) Id. at 16.

(73.) Id. at 18.

(74.) 299 U.S. 304 (1936); see also discussion infra Part IV.B.

(75.) See Valencia, supra note 2, at 295.

(76.) See Reid, 354 U.S. at 16. See infra Part IV.B for a discussion of the constitutional source of the foreign affairs power according to the Court in Curtiss-Wright.

(77.) 17 U.S. 316 (1819).

(78.) In Chief Justice Marshall's words:
 Should Congress, in the execution of its powers, adopt measures
 which are prohibited by the constitution; or should Congress, under
 the pretext of executing its powers, pass laws for the
 accomplishment of objects not entrusted to the government; it would
 become the painful duty of this tribunal, should a case requiring
 such a decision come before it, to say that such an act was not the
 law of the land.

Id. at 423.

(79.) The comment is intended to suggest that the easy questions of implied powers were not the controversial ones during the period in the 1930s when the Supreme Court was at odds with the Executive and Legislative branches over how far into state jurisdiction could federal power be allowed, particularly within the context of the Commerce Clause.

(80.) 133 U.S. 258 (1890).

(81.) Id. at 267 (citing Fort Leavenworth v. Lowe, 114 U.S. 525, 541 (1885)). The Missouri v. Holland rejection of the Tenth Amendment as a limitation qualifies Riggs on this point.

(82.) Id.

(83.) Restatement (Third) of United States Foreign Relations Law [section] 302 cmt. c. (1986).

(84.) It is simply a bad idea to ask courts to decide the following question: is the subject matter of a given treaty one that is appropriate for treaties? An appropriate subject of international concern? Courts cannot answer such a question, and generally courts do not want to answer the question.

The Supreme Court elaborated on the political question doctrine in Baker v. Carr, 369

U.S. 186, 217 (1962):
 Prominent on the surface of any case held to involve a political
 question is found a textually demonstrable constitutional
 commitment of the issue to a coordinate political department; or a
 lack of judicially discoverable and manageable standards for
 resolving it; or the impossibility of deciding without an initial
 policy determination of a kind clearly for nonjudicial discretion;
 or the impossibility of a court's undertaking independent
 resolution without expressing lack of the respect due coordinate
 branches of government; or an unusual need for unquestioning
 adherence to a political decision already made; or the potentiality
 of embarrassment from multifarious pronouncements by various
 departments on one question.

In Goldwater v. Carter, 444 U.S. 996 (1979), the Supreme Court determined that the issue of whether the president could terminate a treaty with Taiwan was nonjusticiable. The Court could not reach a majority as to the grounds for determining nonjusticiability. Justice Rehnquist, in an opinion joined by Chief Justice Burger and Justice Stewart, concurred in the general finding of nonjusticiability, but argued that the issue was a political question beyond the reach of the judiciary. Rehnquist alluded to the lack of judicially manageable standards for resolving the matter and noted that the Constitution is silent on the issue of abrogation. Similarly the Constitution is silent on the issue of treaty subject matter and would not be a justiciable question under the political question doctrine by Justice Rehnquist reasoning in his concurrence Goldwater.

(85.) See also United States v. Belmont, 301 U.S. 324, 330 (1937); United States v. Pink, 315 U.S. 203 (1942) (dealing with executive agreements). Both Belmont and Pink dealt with nationalized assets in the United States belonging to the Soviet Union and assigned to the United States for settlement as part of the latter's agreement to recognize the Union of Soviet Socialist Republics. In each case, New York either had a direct interest in the matter, or at least a policy interest. In Pink, the direct interest was the depositing of assts with the insurance commissioner. In Belmont, New York state was said to have a policy against confiscation as the Soviet nationalization was termed by the respondent Belmont. In both cases the Supreme Court held firm that federal foreign policy would supersede any policy or interest of the state of New York in the matters. Both decisions relied on, among other cases, Curtiss-Wright. Justice Sutherland, the author of Belmont, may be forgiven for citing to his own opinion, but Justice Douglas, who wrote Pink, also referenced the decision in 1942.

The two cases leave little wiggle room on the issue of supremacy of federal foreign policy. The assignments were essentially based upon an executive agreement between the United States through the President and the Soviet Union regarding certain assets existing in the United States, the Litvinov Assignments. Also, as the assignments were part of the recognition deal, in both cases the federal interest was represented by actions of the President alone. The decisions reinforce the notion that federal foreign policy is supreme. But at the same time, it strengthens the notion by going as far as to anoint the exercise of such power by the President alone as supreme, a conclusion not necessarily apparent from a reading of the Supremacy Clause.

(86.) 299 U.S. 304 (1936).

(87.) See Henkin, supra note 38, at 19.

(88.) Curtiss-Wright, 299 U.S. at 316-17.

(89.) See Henkin, supra note 38, at 437-38.

(90.) 331 U.S. 503 (1947).

(91.) Zschernig, 389 U.S. at 434-36.

(92.) Id. at 433. According to Justice Black: "At the time Clark v. Allen was decided, the case seemed to involve no more than a routine reading of foreign laws." Id.

(93.) See Henkin, supra note 38, at 344.

(94.) Brief for Respondent, supra note 10, at 41-42.

(95.) Brief for Respondent, supra note 10, at 41-42.

(96.) Request for the Indication of Provisional Measures, Order, Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.) 1998 LCJ. 248 (Apr. 9).

(97.) The United States' amicus brief in Breard stated:
 But in any event, the "measures at [the government's] disposal" are
 a matter of domestic United States law, and our federal system
 imposes limits on the federal government's ability to interfere
 with the criminal justice systems of the States. The "measures at
 [the United States'] disposal" under our Constitution may in some
 cases include only persuasion-such as the Secretary of State's
 request to the Governor of Virginia to stay Breard's execution-and
 not legal compulsion through the judicial system. That is the
 situation here. Accordingly, the ICJ's order does not provide an
 independent basis for this Court either to grant certiorari or to
 stay the execution.

Brief for United States as Amicus Curiae at 51, Breard v. Greene, 523 U.S. 371 (1997) (Nos. 97-1390 and 97-8214).

(98.) 523 U.S. 371 (1998).

(99.) See Gregory v. Ashcroft, 501 U.S. 452, 457-60 (1991).

(100.) Id. at 458.

(101.) Youngstown Sheet & Tube Company v. Sawyer (Steel Seizure), 343 U.S. 579, 614 (1952).

(102.) U.S. Const, amend. X.

(103.) McCulloch v. Maryland, 17 U.S. 316, 403 (1819).

(104.) Id. at 366.

(105.) 426 U.S. 833 (1976).

(106.) Id. at 855.

(107.) Id. at 856.

(108.) 452 U.S. 264 (1981).

(109.) Id. at 288.

(110.) 469 U.S. 528 (1985).

(111.) Id. at 572.

(112.) See Garcia, 469 U.S. at 528, 572.

(113.) 505 U.S. 144 (1992).

(114.) Hodel, 452 U.S. at 288.

(115.) New York, 505 U.S. at 169.

(116.) Id.

(117.) 521 U.S. 898 (1997).

(118.) Id.

(119.) Id. at 918-26.

(120.) In one case, where a state officer was required to act in earlier times, it was under the Extradition Clause of the Constitution, which supposedly directly implicated states in the enforcement scheme according to Scalia. Other examples of state officers performing federal tasks were similarly subject to dismissal by Justice Scalia. Id, at 908-09.

(121.) Compare Testa, 330 U.S. 386 (1947), with Printz, 521 U.S. at 928-29 (Printz claiming Testa not relevant because Testa requires state apply federal law).

(122.) Printz, 521 U.S. at 923, 959-60.

(123.) Id. at 918.

(124.) Id. at 928-29.

(125.) See Vienna Convention on Consular Relations, S. Exec. Rep. No. 91-9, app. at 2,5 (1969) (statement of J. Edward Lyerly, Deputy Legal Adviser). Texas takes the position that the treaty is not self-executing in the sense that it can be enforced in domestic courts to protect private rights, distinguishing this shading of the term from another version of the term said to mean that the treaty is applicable when ratified, not requiring further implementation by the Congress. Brief for Respondent, supra note 10, at 23 n.19. The United States also takes the position that VCCR does not create private rights that can be enforced in the courts. See Brief for the United States as Amicus Curiae Supporting Respondent at 33, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928), 2005 WL 504490. The Supreme Court in Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2677-78 (2007), declined to address the issue, and it is pending in this case before the Supreme Court.

(126.) One possibility is to do what litigants do when they lose on a point of law--appeal. Testa ultimately was an appeal from a decision of a lower court that it did not have to enforce federal law, a proposition that Justice Black found untenable. Testa, 330 U.S. at 388 (granting certiorari to resolve conflict between state and federal constitutional jurisprudence). After deciding that the Supremacy Clause ruled the day, the Court remanded the matter back to the state court system at issue for proceedings not inconsistent with the opinion. Id. at 394. That Scalia distinguished Testa from the circumstances in Printz has a lot to do with the fact that state courts enforce federal legislation (they also enforce executive orders), whereas state executive and legislative branches promulgate state policies and enact state laws. Testa adds to Supremacy Clause doctrine the notion that federal supremacy courses through every aspect of judicial activity--so long as a federal law is involved, state courts, when called upon, must apply and enforce the federal law. Id. at 391. Though perhaps functionally similar, Scalia found that the Testa clarification did not apply to state officials, in essence removing any basis for analogy across the three branches of government. Printz, 521 U.S. at 928-29. Courts are special, officials are not. The former must enforce federal laws, the latter may not be forced to implement federal laws under principles of dual sovereignty, a concept that does not apply to the judiciary.

Yet, Justice Black in Testa did not make such a suggestion. It may be reading too much into the general statement that "the policy of the federal Act is the prevailing policy in every state" to find authority for the proposed federal mandate applying to state officials in Printz. Testa, 330 U.S. at 393; Printz, 521 U.S. at 898. After all, the Court was addressing a judicial matter and throughout the brief opinion there are indications that Black was not intending to broaden the holding beyond the judiciary. See Testa, 330 U.S. at 390 (framing issue as "[enforcement of federal laws by state courts" and "relationship of state courts to ... Federal Government"). Nonetheless, Testa does not provide the basis for limiting the application of the Supremacy principle merely to state judicial action either, because the opinion does speak, admittedly in general terms, of the legal unity of the nation. See id. at 389 (giving "States of the Union constitute a nation" as reason for supremacy principle). Whatever other principles emanate from the Tenth Amendment, limitations may not run counter to the Supremacy principle, and Testa gives the Supremacy principle a broad and universal meaning in a narrow case addressing judicial concerns. Testa answers a lot of questions about enforcement. Because it is a decision about the obligations of state judiciaries, it answers little about commandeering state legislatures, as in New York, and state officials, as in Printz. But where a state is upsetting the federal calculus as was the case in Testa, Justice Black clearly rings the alarm that such a state of affairs is unacceptable. The remaining question to ask in light of Testa is whether the state, in any of its other, non-judicial capacities, must follow federal policy, or if it refuses, be required to follow federal policy. New York says no, as does Printz- According to Justices O'Connor and Scalia, the constitution requires the preservation of state sovereignty against encroachment by the federal government. See New York, 505 U.S. at 156-157 (asserting "Tenth Amendment confirms ... power of ... Federal Government ... subject to limits that.. . reserve power to ... States"); Printz, 521 U.S. at 918-919 (positing "[although ... States surrendered many ... powers to ... new Federal Government, they retained ... residuary and inviolable sovereignty'" (quoting The Federalist No 39 at 245 (James Madison)). Justice Scalia states clearly that he regards the state sovereignty as dual sovereignty. See Printz, 521 U.S. at 918 (suggesting "[i]t is incontestable that ... Constitution established ... system of 'dual sovereignty'") (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). Fair enough, but just as Scalia confines the scope of Testa,, the applicability of these holdings have to be regarded as limited to federalism issues relating to the domestic sphere. Further, considering the judicial nature of Medellin, Testa would suggest that state courts must follow the treaty, particularly if mandated by the president or Congress. See Testa, 330 U.S. at 391 (contending "obligation of states to enforce these federal laws ... not lessened by ... form in which ... cast ... or ... remedy ... they provide."); see also Printz, 521 U.S. at 928 (re-affirming "state courts cannot refuse to apply federal law--a conclusion mandated by ... terms of ... Supremacy Clause"). Moreover, Justice Black's admonition in favor of a strong approach to the Supremacy Clause leaves room to question more recent decisions, such as Printz and its progeny, to the extent that Testa can be read to allow, under supremacy principles the commandeering of state officials beyond judges for matters of specific federal foreign policy.

(127.) 252 U.S. 416 (1920).

(128.) Henkin, supra note 38, at 343, 349.

(129.) 304 U.S. 144 (1938).

(130.) Id. at 154 n.4.

(131.) See id.

Craig Jackson *

* Professor of Law, Texas Southern University Thurgood Marshall School of Law. B.A., Rice University; J.D. University of Texas School of Law, graduate studies in international affairs, Paul Nitze School of Advanced International Studies, Johns Hopkins University. I would like to thank my research assistants, Thomas Brewer and Guinness Ohazuruike, for their assistance in preparing this article.
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Title Annotation:The Medellin v. Texas Symposium
Author:Jackson, Craig
Publication:Suffolk Transnational Law Review
Date:Jun 22, 2008
Previous Article:Medellin, Avena, the supremacy of treaties, and relevant executive authority.
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