Foreign relations specialists for the most part agree on this much: Medellin v. Texas may prove to be the most important case in the field in recent memory—more than even the recent line of Guantanamo decisions, significant as the general public assumes these to be. Agreement fades, however, concerning exactly what Medellin’s importance will be. Does it signal a reversal of the doctrine that treaties are presumptively self-executing? Or does it (merely) suggest hostility toward domestic application of multi-lateral agreements, especially when they confer individual rights? Is the Court’s opinion driven by a salutary commitment to domestic democratic process in the face of elitist international institutions? Or does it reflect a cynical repudiation of text, history, and structure in the service of statist conservatism? Or both? (P) In the race to suggest less obvious reasons why Medellin may prove significant, this musing suggests two. Together they indicate that the case’s legacy will likely be the undermining of a basic commitment to the rule of law, both domestic and international. (P)First, Chief Justice Roberts’ analysis suggests that the type of doctrinal disingenuousness that has seeped into the Court’s domestic jurisprudence has now arrived in foreign relations. By this term I mean the Justices’ growing tendency to effect important shifts in doctrine without clearly announcing what they are doing. This unfortunate technique, evident in both conservative and liberal opinions, undermines rule of law values by yielding confusion where the Court should be providing guidance. For just this reason, debates over the doctrinal meaning of Medellin will persist until the Court gives a better idea of where it is heading. More importantly, the failure to announce and define doctrinal shifts further undermines the rule of law by allowing the Court to make ad hoc, inconsistent holdings given that enunciated doctrinal rules no longer serve to constrain judicial decision making. (P) Second, Medellin weakens the rule of law on a structural level through fundamentally misconceiving separation of powers, especially in an increasingly globalized world. Here the problem is not simply the Chief Justice abandoning his own ostensible commitment to constitutional text, history, structure, and case law, much as Justice Breyer’s dissent points out. The real problem, rather, is doing all this to undermine perhaps the chief function that the separation of powers exists to promote, namely, a balance among the main departments of government the better to protect liberty. By holding the Vienna Convention as non-self-executing, the Court shirked its own express duty and so diminished its role in maintaining this balance. Yet despite appearances, the ultimate beneficiary was not Congress but instead the President. If one accepts that the Executive has become infinitely more powerful, the Court’s action doubly undercuts separation of powers properly viewed. Add to the mix that globalization has accelerated the comparative supremacy of the Executive still further, and the misstep is that much greater.
Martin S. Flaherty,
Surrendering the Rule of Law in Foreign Relations,
32 Fordham Int'l L.J. 1154
Available at: http://ir.lawnet.fordham.edu/ilj/vol32/iss4/3