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

Jackson, Craig, Suffolk Transnational Law Review

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.

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.

II. MEDELLIN V. TEXAS: SUMMARY OF THE CASE AND ARGUMENTS

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.

III. INTERNATIONAL POLICY AND OBLIGATIONS AND THE NEED FOR NATIONAL UNIFORMITY

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 …

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Publication information: Article title: The Anti-Commandeering Doctrine and Foreign Policy Federalism - the Missing Issue in Medellin V. Texas. Contributors: Jackson, Craig - Author. Journal title: Suffolk Transnational Law Review. Volume: 31. Issue: 2 Publication date: Summer 2008. Page number: 335+. © 2008 Suffolk University Law School. COPYRIGHT 2008 Gale Group.

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