Can the President Compel Domestic Enforcement of an International Tribunal's Judgment? Overview of Supreme Court Decision in Medellin v. Texas

Can the President Compel Domestic Enforcement
of an International Tribunal’s Judgment?
Overview of Supreme Court Decision
in Medellín v. Texas
April 10, 2008
Michael John Garcia
Legislative Attorney
American Law Division



Can the President Compel Domestic Enforcement of
an International Tribunal’s Judgment? Overview of
Supreme Court Decision in Medellín v. Texas
Summary
The Vienna Convention on Consular Relations (VCCR) is a multilateral
agreement codifying consular practices originally governed by customary practice
and bilateral agreements between States (i.e., countries). Article 36 of the VCCR
provides that when a national of a signatory State is arrested or otherwise detained
in another signatory State, appropriate authorities within the receiving State must
inform him “without delay” of his right to have his consulate notified. Nevertheless,
foreign nationals detained by U.S. state and local authorities are not always provided
with requisite consular information.
Until March 2005, the United States was also a party to the VCCR’s Optional
Protocol Concerning the Compulsory Settlement of Disputes. Parties to the Optional
Protocol agree to accept the jurisdiction of the International Court of Justice (ICJ) to
resolve disputes arising between nations with respect to the VCCR. Prior to U.S.
withdrawal from the Optional Protocol, the ICJ issued a judgment in the Case
Concerning Avena and Other Mexican Nationals (Mexico v. United States) (Avena),
instructing the United States to review and reconsider the state convictions and
sentences of 51 Mexican nationals who were not timely informed of their right to
consular notification under VCCR Article 36, regardless of whether such review was
otherwise barred by state procedural default rules. Although the United States
subsequently withdrew from the Optional Protocol, the President thereafter issued
a Memorandum instructing state courts to give effect to the ICJ’s decision in Avena
with respect to the 51 Mexican nationals at issue in that case.
On March 25, 2008, the Supreme Court issued a decision in the case of Medellín
v. Texas. In an opinion written by Chief Justice Roberts and joined by Justices Alito,
Kennedy, Thomas, and Scalia, the Court held that neither the judgment of the ICJ in
Avena nor the President’s Memorandum constituted enforceable federal law
preempting state procedural default rules. Justice Stevens wrote an opinion
concurring with the Court’s judgment, and Justice Breyer issued a dissenting opinion
that was joined by Justices Ginsburg and Souter. For further background on issues
related to VCCR Article 36, see CRS Report RL33613, Sanchez-Llamas v. Oregon:
Recent Developments Concerning the Vienna Convention on Consular Relations, by
Michael John Garcia, and CRS Report RL32390, Vienna Convention on Consular
Relations: Overview of U.S. Implementation and International Court of Justice (ICJ)
Interpretation of Consular Notification Requirements, by Michael John Garcia.



Contents
Background ..................................................1
Issues Decided in Medellín......................................3
Domestic Legal Effect of the ICJ’s Judgment in Avena............4
Legal Effect of the President’s Memorandum....................7



Can the President Compel
Domestic Enforcement of an International
Tribunal’s Judgment? Overview of Supreme
Court Decision in Medellín v. Texas
On March 25, 2008, the Supreme Court issued a decision in the case of Medellín
v. Texas.1 In an opinion written by Chief Justice Roberts and joined by Justices
Alito, Kennedy, Thomas, and Scalia, the Court held that neither the judgment of the
International Court of Justice (ICJ) in the Case Concerning Avena and Other2
Mexican Nationals (Mexico v. United States) (Avena) nor the President’s
Memorandum requiring state courts to give effect to the Avena decision constituted
enforceable federal law preempting state procedural default rules. Justice Stevens
wrote an opinion concurring with the Court’s judgment, and Justice Breyer issued a
dissenting opinion that was joined by Justices Ginsburg and Souter.
Background
The Vienna Convention on Consular Relations (VCCR),3 ratified by the United
States in 1969, is a multilateral agreement codifying consular practices originally
governed by customary practice and bilateral agreements between States (i.e.,
countries). When the United States became a party to the VCCR, it also chose to
become a party to the VCCR’s Optional Protocol Concerning the Compulsory4
Settlement of Disputes (Optional Protocol). Parties to the Optional Protocol agree
to accept the jurisdiction of the ICJ to resolve disputes arising between nations with
respect to the VCCR. The ICJ is the “principle judicial organ of the United
Nations,”5 and the ICJ Statute, establishing the organization and procedures of the6
court, is annexed to the U.N. Charter. Pursuant to Article 94(1) of the U.N. Charter,
each U.N. Member “undertakes to comply” with decisions of the ICJ “in any case to
which it is a party.” Article 94(2) of the Charter provides that if a party fails to
perform obligations required of it pursuant to an ICJ judgment, the other party may
present the matter to the U.N. Security Council, “which may, if it deems necessary,


1 Medellín v. Texas, — - S.Ct.——, 2008 WL 762533 (2008).
2 Case Concerning Avena and other Mexican Nationals (Mexico v. United States), 2004
I.C.J. No. 128 (Judgment of March 31).
3 Vienna Convention on Consular Relations, done April 24, 1963, 21 U.S.T. 77.
4 Optional Protocol to the Vienna Convention on Consular Relations Concerning the
Compulsory Settlement of Disputes, done April 24, 1963, 21 U.S.T. 325.
5 United Nations Charter, Art. 92, 59 Stat. 1051, T.S. No. 993 (1945).
6 Statute of the International Court of Justice, 59 Stat. 1055, T.S. No. 993 (1945).

make recommendations or decide upon measures to be taken to give effect to the
judgment.” On March 7, 2005, the United States withdrew from the Optional
Protocol, meaning that the ICJ’s jurisdiction over VCCR claims is no longer
recognized by the United States.7
Pursuant to Article 36 of the VCCR, when a national of a signatory State is
arrested or otherwise detained in another signatory State, appropriate authorities
within the receiving State must inform him “without delay” of his right to have his
consulate notified. This requirement is potentially beneficial to a detained national.
For instance, a consulate might arrange for legal representation of the detained
national, or help the national obtain evidence or witnesses to bolster the national’s
defense in any subsequent criminal case. Nevertheless, foreign nationals detained by
U.S. state and local authorities are not always provided with requisite consular
information, and some have been convicted of criminal charges carrying serious
penalties without ever having their consulate notified of their detention.
Further, under U.S. state and federal law, procedural default rules might prevent
foreign nationals from obtaining a judicial remedy for an Article 36 violation when
they only become aware of the VCCR’s consular notification requirements after
having been convicted of an offense. As is the case on the federal level, state
procedural default rules generally prevent the reopening of cases to consider claims
that were not raised on a timely basis (e.g., before or during trial). The rule may
preclude the raising of claims based on the violation of a treaty or (in many cases) a
constitutional right. Although lower federal courts have jurisdiction to review state
criminal convictions pursuant to writs of habeas corpus, the scope of such review is
limited. A person convicted in state court who petitions for federal habeas relief on
account of a violation of the Constitution or a federal statute or treaty must have first
raised the claim in state court if he is to be provided an evidentiary hearing under
federal habeas review.8
The availability of a judicial remedy for an Article 36 violation has been the
subject of both domestic and international jurisprudence.9 Prior to U.S. withdrawal
from the Optional Protocol, the ICJ considered a claim brought by Mexico against
the United States for violating obligations owed under VCCR Article 36. In Avena,
the ICJ held that Article 36 confers an individually-enforceable right to consular
notification, and that the state convictions of 51 named Mexican nationals were
entitled to review and reconsideration, regardless of whether such review was
otherwise barred by state procedural default rules. Although the United States


7 Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of
the United Nations, giving notice that the United States withdraws from the Optional
Protocol (March 7, 2005).
8 22 U.S.C. § 2254. A possible exception enabling otherwise procedurally defaulted
constitutional claims to be raised in federal habeas courts occurs when the claim relies upon
“a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” Id. at § 2254(e)(2)(A)(i).
9 For further discussion, see CRS Report RL32390, Vienna Convention on Consular
Relations: Overview of U.S. Implementation and International Court of Justice (ICJ)
Interpretation of Consular Notification Requirements, by Michael John Garcia.

subsequently withdrew from the Optional Protocol, the President thereafter issued
a Memorandum instructing state courts to give effect to the ICJ’s decision in Avena
with respect to the 51 Mexican nationals at issue in that case.10
In the 2006 case of Sanchez-Llamas v. Oregon,11 the Supreme Court found that
even assuming that Article 36 created an individually enforceable right for detained
foreign nationals, (1) suppression of evidence in a criminal proceeding is never an
appropriate remedy for an Article 36 violation; and (2) federal and state procedural
default rules prevent the raising of Article 36 claims that were not made on a timely
basis. Although the Court considered the ICJ’s interpretation of Article 36 as
deserving respectful consideration, it did not deem it to be legally binding or
necessarily persuasive. Because the Sanchez-Llamas case did not involve individuals
named in the Avena decision, the Supreme Court’s ruling addressed neither the
domestic effect of the ICJ judgment instructing the United States review of the state
criminal convictions of certain Mexican nationals, nor the legal weight of the
President’s Memorandum instructing state courts to comply with the Avena
judgment.
Ernesto Medellín, who had been convicted and sentenced in Texas state court
for murder, was one of the Mexican nationals named in the Avena decision. In 2004,
the Supreme Court granted certiorari in the case of Medellín v. Dretke,12 in which
Medellín argued, among other things, that his conviction by a Texas court should be
reconsidered in light of the ICJ’s ruling, despite such reconsideration being barred
by Texas’s procedural default rules. Prior to the Supreme Court reaching a decision
on this issue, President Bush issued the Memorandum instructing state courts to give
effect to the Avena decision. The Court subsequently dismissed its writ of certiorari
in Medellín as improvidently granted, as it was no longer clear that Medellín had
exhausted his remedies at the Texas state level in light of the President’s
Memorandum.13 On November, 15, 2006, the Texas Criminal Court of Appeals held
that neither Avena nor the President’s Memorandum preempted state procedural
default rules, and it rejected Medellin’s petition for habeas relief.14 The Supreme
Court thereafter granted certiorari to review the Texas court’s judgment.
Issues Decided in Medellín
The Court granted certiorari in Medellín to address two issues: (1) whether the
ICJ’s decision in Avena was directly enforceable in U.S. state courts; and (2) whether
the President’s Memorandum independently compelled states to review and


10 President Bush Memorandum for the Attorney General, Compliance with the Decision of
the International Court of Justice in Avena, February 28, 2005, available at
[ ht t p: / / www.whi t e house.gov/ news/ r el eases/ 2005/ 02/ 20050228-18.ht ml ] .
11 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). For further discussion, see CRS Report
RL33613, Sanchez-Llamas v. Oregon: Recent Developments Concerning the Vienna
Convention on Consular Relations, by Michael John Garcia.
12 Medellín v. Dretke, 544 U.S. 660 (2005) (per curium).
13 Id. at 664.
14 Ex parte Medellín, 223 S.W.3d 315 (Tex.Crim.App.2006).

reconsider the claims of the 51 Mexican nationals named in Avena without regard to
state procedural default rules.15
Domestic Legal Effect of the ICJ’s Judgment in Avena. The Court
first examined whether the ICJ’s judgment in Avena constituted binding domestic
law. Medellín argued that treaties requiring compliance with the Avena judgment —
namely, the Optional Protocol, ICJ Statute, and U.N. Charter — constituted the “law
of the Land” under the Supremacy Clause, thereby preempting contrary state
procedural default rules that otherwise barred reexamination of Medellin’s habeas
petition.
The Court began its analysis by acknowledging that the Optional Protocol, ICJ
Statute, and U.N. Charter imposed upon the United States “an international law
obligation” to comply with the ICJ’s judgment in Avena.16 However, the Court went
on to explain that it had “long recognized the distinction between those treaties that
— while they constitute international law commitments — do not themselves17
function as binding federal law” enforceable by U.S. courts. Here, the Court
distinguished between the domestic legal effect of two categories of treaties — those
that are self-executing and those that are non-self-executing. The Court defined a
self-executing treaty as having “automatic domestic effect as federal law upon18
ratification.” A non-self-executing treaty, in contrast, “does not by itself give rise
to domestically enforceable federal law. Whether such a treaty has domestic effect19
depends upon implementing legislation passed by Congress.” Further, even when
treaties are considered “self-executing in the sense that they create federal law, the
background presumption is that international agreements, even those directly
benefitting private persons, generally do not create private rights or provide for a20
private cause of action in domestic courts.”
The Court held that the Avena judgment did not constitute automatically
enforceable domestic law because none of its underlying treaty sources — i.e., the
Optional Protocol, the ICJ Statute, or the U.N. Charter — created binding domestic
law in the absence of implementing legislation, and no such legislation had been
enacted by Congress. In assessing whether these treaty sources were self-executing,
the Court first looked to the relevant treaty text in order to determine whether each
treaty’s terms “reflect[ed] a determination by the President who negotiated it and the
Senate that confirmed it that the treaty has domestic effect.”21 Though the Court
stated that treaty interpretation, like statutory interpretation, “begins with its text,”
it also acknowledged that nontextual resources, including the negotiating and drafting


15 Medellín, 2008 WL 762533, at *6.
16 Id. at *9 (italics in original).
17 Id.
18 Id. at *9 n.2.
19 Id.
20 Id. at *10 n.3.
21 Medellín, 2008 WL 762533, at *17.

history of the treaty and the postratification understanding of treaty parties, could also
serve as “aids to its interpretation.”22
Turning first to the Optional Protocol, the Court concluded that the “most
natural reading of the Optional Protocol is as a bare grant of jurisdiction” to the ICJ
to hear disputes between VCCR parties.23 According to the Court, “[s]ubmitting to
jurisdiction and agreeing to be bound are two different things.”24 The Optional
Protocol was silent on the effect of an ICJ judgment and did not directly compel case
parties to comply with ICJ decisions.
The Court found that any obligation to comply with an ICJ judgment derived not
from the Optional Protocol but from Article 94 of the U.N. Charter, which describes
the effect of ICJ decisions. Although Article 94(1) provides that parties to ICJ cases
shall “undertake[] to comply” with its decisions, the Court did not interpret this
language as “a directive to domestic courts.”25 Instead, this provision was deemed
to impose “a commitment on the part of U.N. Members to take future action through
their political branches to comply with an ICJ decision.”26 The Court found support
for this interpretation in the language of Article 94(2), which provides that the sole
remedy for noncompliance with an ICJ decision is referral of the matter to the U.N.
Security Council, which must determine whether to take action to effectuate the
judgment. Further, “as the President and the Senate were undoubtedly aware in
subscribing to the U.N. Charter and Optional Protocol, the United States retained the
unqualified right to exercise its veto over any Security Council resolution.”27
According to the Court, interpreting ICJ judgments as automatically enforceable
domestic law would eliminate the option of noncompliance with ICJ decisions
contemplated under Article 94(2).
Additionally, the Court found nothing in the text of the ICJ Statute to suggest
that the Avena judgment constituted automatically enforceable domestic law which
could be relied upon by Medellín.28 The ICJ Statute provides that ICJ decisions have
“no binding force except between the parties,”29 and only nations, not individuals,
may be parties in cases before the ICJ. The Court reasoned that an individual like
Medellín could not be considered a party to the Avena decision, and therefore could
not rely on its judgment.
The Court also found support for its interpretation of the non-self-executing
nature of the relevant treaties when it considered nontextual aids to treaty


22 Id. at *11.
23 Id.
24 Id.
25 Id.
26 Id. (italics in original).
27 Medellín, 2008 WL 762533, at *12.
28 Id. at *13.
29 ICJ Statute, art. 59.

interpretation. The majority noted that U.S. interpretation of a treaty “is entitled to
great weight,” and “the Executive Branch has unfailingly adhered to the view that the
relevant treaties do not create domestically enforceable law.”30 The Court further
stated that its conclusion that Avena did not constitute binding federal law is
confirmed by the “postratification understanding” of other signatories to the Optional
Protocol. According to the Court, neither petitioner nor his amici identified a single
country that treated ICJ judgments as automatically binding upon its domestic
courts.31 The Court also stated that its conclusion was supported by general principles
of interpretation, including the rule that “absent a clear and express statement to the
contrary, the procedural rules of the forum State govern the implementation of the
treaty in that State.”32
Finally, the Court made clear that its holding was not intended to “suggest that
treaties can never afford binding domestic effect to international tribunal judgments
— only that the U.N. Charter, the Optional Protocol, and the ICJ Statute do not do
so.”33 The Court agreed with petitioner that in some cases an international agreement
to abide by the result of an international adjudication may be self-executing.34
Whether treaties underlying other judgments are self-executing so as to permit direct
enforcement of these judgments by U.S. courts is “a matter for this Court to
decide.”35 The Court also stressed that its holding did not call into question the
ordinary enforcement of foreign judgments or international arbitral agreements by
U.S. courts.36 Further, the Court acknowledged even international adjudications
based on non-self-executing agreements constitute international obligations, and
Congress may enact implementing legislation to give them domestic effect.37
Writing in concurrence, Justice Stevens found “a great deal of wisdom” in the
dissenting opinion, including its claim “that the text and history of the Supremacy
Clause, as well as this Court’s treaty-related cases, do not support a presumption
against self-execution.”38 Nonetheless, Justice Stevens agreed with the majority that
the relevant treaties did not authorize the Court to enforce the ICJ’s judgment in
Avena. Like the majority, Justice Stevens interpreted the U.N. Charter’s requirement
that parties “undertake[] to comply” with ICJ decisions as leaving the choice of
compliance to the political, rather than judicial, department of government.39 Justice
Stevens also emphasized that the Avena decision, while not directly enforceable by
U.S. courts, nonetheless imposed an international legal obligation upon both the


30 Medellín, 2008 WL 762533, at *13.
31 Id. at *15.
32 Id.
33 Id. at *17.
34 Medellín, 2008 WL 762533, at *17.
35 Id.
36 Id.
37 Id. at *18.
38 Id. at *24 (Stevens, J., concurring).
39 Id. at *24-25.

federal government and each of the U.S. states. Justice Stevens claimed that Texas’s
duty to comply with the Avena judgment “is all the greater since it was Texas that —
by failing to provide consular notice in accordance with the Vienna Convention —
ensnared the United States in the current controversy.”40 Justice Stevens urged Texas
take appropriate action to ensure that it would not cause the United States to default
upon its obligation under international law to comply with the Avena decision.41
In dissent, Justice Breyer (joined by Justices Ginsburg and Souter) argued that
the “many treaty-related cases interpreting the Supremacy Clause...including some
written by Justices well aware of the Founders’ original intent, lead to the conclusion
that the ICJ judgment before us is enforceable as a matter of domestic law without
further legislation.”42 The dissent discussed several instances in which the Court had
previously concluded that a treaty was self-executing, even in the absence of clear
textual language on the point. The dissent argued that the majority’s emphasis on a
treaty’s text when assessing a provision’s self-executing nature was misplaced, and
“erects legalistic hurdles that can threaten the application of provisions in many
existing commercial and other treaties and make it more difficult to negotiate new
ones.”43 In an appendix, Justice Breyer listed 70 treaties containing ICJ dispute
settlement provisions similar to that contained in the Optional Protocol, as examples
of agreements that had their domestic legal effect potentially called into question by
the majority’s decision. 44
The dissent argued that established Supreme Court jurisprudence suggested
“practical, context-specific criteria” for determining whether a particular treaty or
treaty provision is self-executing, with a treaty provision’s subject matter having
particular importance.45 Factors to be considered in determining whether a treaty
provision is directly enforceable by a U.S. court include “whether the treaty provision
confers specific, detailed individual legal rights;” whether it establishes “definite
standards that judges can readily enforce;” whether direct judicial enforcement would
“require the courts to create a new cause of action;”and whether direct enforcement
by U.S. courts would “create constitutionally undesirable conflict with the other
branches.”46 Considering these factors, the dissent concluded that the relevant treaty
provisions underlying the Avena judgment were self-executing, and the judgment
should therefore be directly enforceable by U.S. courts.
Legal Effect of the President’s Memorandum. The second issue
examined by the Court was the legal effect of the President’s Memorandum. Both
Medellín and the United States, as an amicus, argued that the Memorandum legally
required the Texas state court to review and reconsider Medellin’s conviction and


40 Id. at *26.
41 Id.
42 Medellín, 2008 WL 762533, at *28 (Breyer, J., dissenting).
43 Id. at *34.
44 Id. at *46-49 (Appendix B).
45 Id. at *35.
46 Id. at *34.

sentence so as to give effect to the Avena judgment. In its amicus brief, the United
States made two arguments in support of the legal validity of the President’s
Memorandum. First, it argued that relevant treaties, ratified by the United States
following the approval of the Senate, gave the President the authority to implement
the Avena judgment and that Congress had acquiesced to the exercise of such
authority. Secondly, the government argued that the President possessed independent
power to resolve international disputes wholly apart from any authority derived from
relevant treaties.
The Court acknowledged that “the President’s constitutional role ‘uniquely
qualifies’ him to resolve the sensitive foreign policy decisions” and found that the
Memorandum sought to vindicate “plainly compelling” interests, including ensuring
reciprocal observance of the VCCR, preserving foreign relations, and demonstrating
U.S. commitment to the role of international law.47 Nonetheless, the Court found that
these interests “do not allow us to set aside first principles” which establish that the
presidential authority to act is derived from either an act of Congress or the
Constitution itself.48
The Court analyzed the President’s action using the tripartite framework
established by Justice Jackson’s concurring opinion in Youngstown Sheet & Tube v.
Sawyer.49 First, “[w]hen the President acts pursuant to an express or implied
authorization of Congress, his powers are at their maximum, for it includes all that
he possesses in his own right plus all that Congress can delegate.”50 Second, “[w]hen
the President acts in absence of either a congressional grant or denial of authority, he
can rely only on his own independent powers, but there is a zone of twilight in which
he and Congress may have concurrent authority, or in which its distribution is
uncertain.”51 In these circumstances, “Congressional inertia, indifference or
quiescence may...invite, measures of independent Presidential responsibility.”52
Finally, “[w]hen the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of Congress
over the matter.”53
In support of the legal validity of the President’s Memorandum, the government
argued that the Optional Protocol and U.N. Charter “create an obligation to comply
with Avena..[and] implicitly give the President authority to implement that


47 Id. at *19.
48 Medellín, 2008 WL 762533, at *19.
49 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
50 Id. at 635 (Jackson, J., concurring).
51 Id. at 637.
52 Id.
53 Id. at 637-638.

treaty-based obligation.”54 The government argued that the Memorandum fell under
the first category of the Youngstown framework, because the President’s action was
impliedly authorized by Congress, pursuant to Senate approval of treaties creating an
obligation to comply with the Avena judgment. The Court disagreed. Having already
concluded that neither the Optional Protocol nor the U.N. Charter were self-
executing, the Court held that “[t]he responsibility for transforming an international
obligation arising from a non-self-executing treaty into domestic law falls to
Congress.”55 The Court described a non-self-executing treaty as one that “by
definition...was ratified with the understanding that it is not to have domestic effect
of its own force.”56 This understanding, the Court reasoned, means that “[w]hen the
President asserts the power to ‘enforce’ a non-self-executing treaty by unilaterally
creating domestic law, he acts in conflict with the implicit understanding of the
ratifying Senate.”57 Accordingly, the Court found that the President’s Memorandum
fell within the third category of Justice Jackson’s Youngstown framework, because
the President’s action was contrary to the express or implied will of Congress.58
The Court also disagreed with the government’s argument that the President’s
Memorandum should be given effect as domestic law in light of “congressional
acquiescence” to such executive action. As a preliminary matter, the Court
recognized “congressional acquiescence” as pertinent only when the President’s
action falls under the second category of the Youngstown framework (i.e., in
situations where the President acts in the absence of a congressional grant or denial
of authority). Having already determined that the President’s attempt to enforce the
Avena judgment fell within the third category of the Youngstown framework, the
Court deemed congressional acquiescence to be irrelevant to its legal analysis.59
Further, the Court stated that “even if we were persuaded that congressional
acquiescence could support the President’s asserted authority to create domestic law
pursuant to a non-self-executing treaty, such acquiescence does not exist here.”60
Next, the Court addressed the government’s argument that, independent of
United States treaty obligations, the Memorandum was a valid exercise of the
President’s power to resolve international disputes with foreign nations. In support
of this position, the government relied on a series of Supreme Court decisions
upholding the President’s authority to settle foreign claims pursuant to executive
agreement.61 The Court characterized these cases as standing for the proposition
“that, if pervasive enough, a history of congressional acquiescence can be treated as


54 Medellín, 2008 WL 762533, at *20 (italics in original).
55 Id.
56 Id. at *21.
57 Id.
58 Id.
59 Id. at *22.
60 Medellín, 2008 WL 762533, at *22.
61 Id. at *23 (citing American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003); United States
v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937)).

a gloss on Executive Power vested in the President by § 1 of Art. II.”62 It further
described these claim-settling cases as “involving a narrow set of circumstances”
concerning the settlement of private claims between U.S. citizens and foreign
nationals or governments, which was “supported by a ‘particularly longstanding
practice’ of congressional acquiescence.”63 In contrast, the Court characterized the
President’s Memorandum ordering state courts to comply with the Avena judgment
as an “unprecedented action...that reaches deep into the heart of the State’s police
powers and compels state courts to reopen final criminal judgments and set aside
neutrally applicable state laws.” The Court concluded that the President’s “narrow
and strictly limited authority to settle foreign claims...cannot stretch so far as to
support the current Presidential Memorandum.”64
The Court also briefly considered an argument raised by Medellín, but not the
United States, that the President’s Memorandum was a valid exercise of his
constitutional power to “take Care that the Laws are faithfully executed.”65 The
Court rejected this argument because the Take Care clause permits the President to
execute laws, not make them, and the Court had concluded that the Avena decision
was not domestic law.66
The Court emphasized that it had not held that “the combination of a
non-self-executing treaty and the lack of implementing legislation precludes the
President from acting to comply with an international treaty obligation.”67 Though
the President could not rely on the power of a non-self-executing treaty to establish
legally-binding rules preempting contrary state law, the President could still enforce
a non-self-executing treaty’s obligations using “some other means, so long as they
are consistent with the Constitution.”68
In his concurring opinion, Justice Stevens agreed with the majority that the
President’s Memorandum did not constitute binding law.69 Because the dissenting
justices would have held the relevant treaties self-executing and the Avena decision
directly enforceable as domestic law, they decided not to attempt to resolve the
question of whether the President’s Memorandum constituted enforceable federal law
preempting state procedural default rules.70


62 Id. (internal quotations omitted)
63 Id. at 24 (quoting Garamendi, 539 U.S. at 415).
64 Id.
65 U.S. CONST., art. II, § 3
66 Medellín, 2008 WL 762533, at *24.
67 Id. at *22.
68 Id.
69 Id. at *25 (Stevens, J., concurring).
70 Id. at *44 (Breyer, J., dissenting).