Medellin: a useful case for reining in executive over-reaching?

Finding something positive in the Medellin decision is a challenge: the Supreme Court rejected a state death row prisoner’s claim under the Vienna Convention because the consulate-notification treaty provisions are non-self-executing, so state procedural default rules governed, despite the judgment of the International Court of Justice that the case should have been reviewed to determine whether the violation was prejudicial regardless of procedural default. But part III of the opinion includes some strong language rejecting Executive Branch law-making that seems to run counter to expansion of Executive power through administrative rule-making and presidential signing statements.

In 2004, the International Court of Justice in the Hague found in the Avena case that 51 aliens on American death rows had not been advised of their rights to contact their consulates after arrest, as required by the Vienna Convention. In Sanchez-Llamas, a case brought by a non-Avena prisoner, the Supreme Court held that normal state default rules applied to a Vienna Convention claim by an Oregon prisoner regardless of Avena. Then the President, in a somewhat unenthusiastic effort to comply with international obligations, issued a Memorandum to the Attorney General stating that the United States would comply with the International Court of Justice’s Avena decision “by having State courts give effect to its decision in accordance with the general principles of comity.”

With the Presidential Memorandum in hand, Mr. Medellin, a named prisoner in Avena, went back to the Texas post-conviction court, asserting that the use of his post-arrest statements violated the Vienna Convention. The Texas court said the claim was defaulted in his successive petition because neither the Presidential Memorandum nor the Avena decision displaced state law on procedural defaults. This put the federal government in a tight spot: the States are trying to kill the Avena prisoners; the prisoners are trying to avoid being killed by invoking federal treaties; and the federal government wants the States to kill the prisoners but does not want to look like it is ignoring the treaty approved by Congress and signed by the President.

The Solicitor General’s amicus brief presented the federal argument in two parts. First, he argued that the Court should defer to the Executive Branch’s evaluation that the Vienna Convention was not self-executing (the treaty needed further legislative action to allow an individual to enforce its provisions). Second, the Solicitor General argued that the Presidential Memorandum had the force of law, requiring the States to reevaluate the prisoners’ Vienna Convention claims on the merits.

The first part of Chief Justice Roberts’ opinion is predictable: after a quasi-fascinating exploration of when treaty obligations are “self-executing” (the treaty has automatic domestic effect as federal law upon ratification) or “non-self-executing” (domestic effect of the international obligation depends upon further implementing congressional action), the Court determined that the State’s default rules govern. In doing so, the majority applied the rules of statutory construction, looking to the natural meaning of the words and the treaty’s context. The Solicitor General’s position was noted in passing, acknowledging the "great weight" given to the Executive Branch’s determination that the treaty is non-self-executing. Justice Breyer, joined by Justices Ginsburg and Souter, construed the Vienna Convention to be self-executing based on factors gleaned from precedent in construing treaties. Justice Stevens concurred with the suggestion – foreshadowing his Baze repudiation of the death penalty – that the State commute the sentence to ameliorate the international awkwardness of the ruling.

Finally we get to the potentially useful part. In the part III of Chief Justice Roberts’ opinion, the Court firmly and decisively rejected the Solicitor General’s argument regarding the Presidential Memorandum. In deferring to the State’s default rules and the earlier Sanchez-Llamas opinion, the Court used some pretty strong language on the limitations of Executive power.
• The Court cited to the Hamdan case on Guantánamo prisoners for the “fundamental constitutional principal” that Congress makes laws and the President executes them;
• The Court found that the characteristic of self-executing or non-self-executing exists at the time of ratification and cannot be changed by subsequent Presidential action;
• The Court cited James Madison for the proposition that, under the system of checks and balances, “[t]he magistrate in whom the whole executive power resides cannot of himself make a law.”
The Court then found that, under the Youngstown Steel analysis for authorized Executive action, there was neither an invitation in congressional silence for the Executive to fill a gap nor authority in the President’s separate foreign affairs authority to federally trump the State’s default rule.

Part III of the opinion, while protective of the States, is also a distinct limitation on the Executive power asserted by the Solicitor General. The Presidential Memorandum seems to provide a direct analog to presidential signing statements as well as some instances of Executive construction of penal statutes under administrative law. For example, the Bureau of Prisons’ belated construction of the federal good time credit statute (12.8% of sentence imposed) could not survive an analysis that required the penal statute to mean what it said upon enactment or, at the latest, once construed by the Sentencing Commission (15% of sentence imposed)(as blogged here). Medellin’s utility in addressing presidential signing statements is ironic because Justice Alito, a member of the majority, was an early architect of the device to expand Executive power (as discussed here).

The respect for the text as written by Congress and the clear statement regarding the absence of Executive law-making authority may be useful in litigation where the Executive Branch attempts to expand the meaning of statutes beyond their plain meaning. We may be able to use Medellin in conjunction with the approach to the rules of statutory construction discussed here after the Watson case. As is so often the case, Federal Defenders must look for the gems among the dross.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon