Monday, October 1, 2007

First Day of October for the U.S. Supreme Court: Must States Comply with International Law?

This morning, the United States Supreme Court opens its new term with a number of international law and executive power v. power of Congress cases. Perhaps of keenest interest to those following the battle between states rights and compliance with international law is Medellín v. Texas. The Court will consider whether the President can require states to implement and enforce ICJ decisions and U.S. compliance with international law.
Specifically, the questions presented are:
(1) Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined on Feb. 28, 2005, that the states must comply with the United States' treaty obligation to give effect to the Avena judgment of the International Court of Justice in the cases of the 51 Mexican nationals named in that March 2004 judgment?
(2) Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?
Jennifer Koons of the Medill News Service quotes the U.S. Solicitor General in his reply brief submitted in support of Medellín as arguing, perhaps novelly on behalf of the President, that "a state court should not have the final word on whether the United States as a nation abides by its treaty obligations..." and "It is the unique role of this Court, as the final authority on questions of federal law, to protect the federal government's constitutional power to enter into enforceable treaties and to conduct the foreign relations of the United States without interference from the courts of the several states."
So, as I ponder the seeming disparities of these arguments with the actual practice of our Administration in its compliance with principles of international law, I wonder whether it might be time to hold the President to his brief and ask, "Mr. President, would you please tell the federal government and the states to comply with our other obligations under international law, such as prohibiting the sentencing of children to life without parole?" I will be among those following the Medellín case with enormous interest.

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