The Anti-Commandeering Doctrine and Foreign Policy Federalism - the Missing Issue in Medellin V. Texas

Article excerpt

I. INTRODUCTION

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. …