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Friday, March 25, 2005

Medellin's Interpretation of the Supremacy Clause

I was thinking about something in the shower this morning, and I'm sure someone somewhere has already pointed this out. But, since I haven't read it anywhere I thought it might be an original thought.

It's a framing issue. Medellin is often framed in terms of treaty interpretation. We delegated a certain amount of power over interpretation of the treaty in the optional protocol, and are no bound by that treaty delegation. While I have some issues with this, it isn't necessary prohibitive; at least in the domestic context this happens all the time, and it isn't terribly new in the foreign context.

But the ICJ is not really interpreting the treaty, but the Supremacy Clause. There is, as far as I can tell, no issue as to whether Mexico is violating the treaty, and no reason why the Supreme Court wouldn't have agreed in Breard and granted the Mexican nationals relief.

The issue was the adequate and independent state ground. Texas has a procedural rule that is not preempted by the treaty, per Wainwright v. Sykes where the Court held that the procedural default rule is a valid exercise of state procedural power and can bar the litigation of a federal right. Avena is basically trying to overrule Sykes, saying in effect that the Supremacy Clause of the U.S. Constitution should make the treaty overrule the state procedural rule.

The arguments for Medellin always frame this in terms of a treaty interpretation, and that the treaty should be interpreted to preempt the state rule. But that interpretation is not really interpretation of the treaty, but interpretation of what the Supremacy Clause has to say about the treaty.

This, I think, is problematic. Far more important than keeping the definition of the scope of our international obligations under domestic control is keeping the interpretation of our constitution in our courts.


Blogger Yo said...

Incredible. This is the argument I'm trying to overcome in a paper i'm writing, as the Supreme Court recenlty granted cert to Ex Parte Medellin, 223 S.W.3d 315.

The court, however, is finally coming around to see this ultimate argument, which to me, Art III of the Constitution is conclusive on-- and the entire Optional Protocol is unconstitutional, as it violates the fact that it gives greater jurisdiction to the ICJ then the Supreme Court. Basically it usurps the power of the Supreme Court by giving the ICJ more credence in interpreting our international obligations pursuant to the treaty.

At the Same time, the Supreme Court is not given the sole power under Article III to hear cases or controversies between citizens of another country and a state, thus ICJ jurisdiction is a proper exercise of the authority of the treaty.

PS, I realize this post is two years old, but the issue is still fresh.

9:01 AM  

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