Treaties, Execution, and Originalism in Medellin V. Texas

Article excerpt

The unique structure of the United States government creates tensions for the country when it deals with the international community. Most notably, the sharing of sovereignty between the federal and state governments, and between the different branches of the federal government, can create enormous tension between our international obligations and our obligation to constitutional structure. As the world continues to grow smaller, the frequency of these conflicts will surely increase.

Last Term, in Medellin v. Texas, (1) the tensions between federalism, separation of powers, and international obligations took center stage, when the Court held that the United States's constitutional structure of government trumped its international obligations. (2) Specifically, the Court held that the United Nations Charter, a treaty to which the United States is a party, did not make judgments of the International Court of Justice (ICJ) directly binding and enforceable as domestic law in a state court, and that the President lacked independent power to require states to comply with ICJ judgments. (3)

Integral to the holding was the Court's pronouncement that, when ratified, treaties are not presumed to have the status of binding domestic federal law immediately, but instead require subsequent federal legislation to become law. (4) In other words, treaties are presumed to be non-self-executing. Arguing that the Framers understood treaties to be self-executing, commentators have attacked the majority's presumption of non-self-execution as an ironic departure from originalism by the professed originalists themselves. (5) For the reasons set forth in this Comment, such criticisms are unjustified. Although the debate is far from settled, much evidence exists that the Framers understood that many treaties would require subsequent legislation to become binding domestic law. Even if, on balance, treaties were understood generally to be self-executing, the Framers would strongly have preferred a presumption of nonself-execution for treaties with highly invasive domestic implications, such as the ones at issue in Medellin.

Jose Ernesto Medellin, a Mexican national living in Texas, was indicted on September 23, 1993, for the rape and murder of sixteen-year-old Elizabeth Pena. (6) A trial established that on June 24, 1993, Medellin participated in a gang initiation, after which he and fellow gang members repeatedly and viciously raped Pena and her fourteen-year-old friend, Jennifer Ertman. (7) After the rapes, Medellin helped strangle Pena to death with one of his shoestrings. (8) In recounting his role in the attacks, Medellin, "giggling and laughing," bragged about "deflowering one of the young girls." (9) He only regretted not having a gun "so that the killing would have been quicker." (10)

A Texas jury convicted Medellin of capital murder, and he was sentenced to death. (11) After his direct appeal was denied in 1997, (12) Medellin filed for and was denied state habeas relief. (13) Medellin then filed for federal habeas relief in 2001, amending his application in 2002 to include, inter alia, as grounds for relief Texas's failure to notify the Mexican Consulate of his arrest, (14) an obligation the United States had under the Vienna Convention on Consular Relations. (15) The district court denied habeas relief, holding that Medellin had not shown prejudice arising from the treaty violation and that state default rules precluded his Vienna Convention claim. (16)

While the Fifth Circuit was considering his application for a certificate of appealability, the ICJ issued its decision in Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) (17) (Avena) and held that the United States had violated the Vienna Convention by failing to notify fifty-one Mexican nationals, including Medellin, of their rights under the Vienna Convention. (18) The ICJ held that, regardless of any state procedural default rules, the United States was obligated to provide the fifty-one Mexican nationals "review and reconsideration" of their convictions and sentences. …