on writ of certiorari to the court of criminal appeals of texas

March 25, 2008

    Chief Justice Roberts delivered the opinion of the Court.

    The International Court of Justice (ICJ), located in the Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States. This was so regardless of any forfeiture of the right to raise Vienna Convention claims because of a failure to comply with generally applicable state rules governing challenges to criminal convictions.

    In Sanchez-Llamas v. Oregon (2006) —issued after Avena but involving individuals who were not named in the Avena judgment—we held that, contrary to the ICJ’s determination, the Vienna Convention did not preclude the application of state default rules. After the Avena decision, President George W. Bush determined, through a Memorandum to the Attorney General (Feb. 28, 2005), that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.”

    Petitioner José Ernesto Medelln, who had been convicted and sentenced in Texas state court for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ’s decision andthe President’s Memorandum, Medelln filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medelln’s application as an abuse of the writ under state law, given Medelln’s failure to raise his Vienna Convention claim in a timely manner under state law. We granted certiorari to decide two questions. First, is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States? Second, does the President’s Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules? We conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. We therefore affirm the decision below.


    In 1969, the United States, upon the advice and consent of the Senate, ratified the Vienna Convention. The preamble to the Convention provides that its purpose is to “contribute to the development of friendly relations among nations.” Toward that end, Article 36 of the Convention was drafted to “facilitat[e] the exercise of consular functions.” It provides that if a person detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detainee] of his righ[t]” to request assistance from the consul of his own state.

    The Optional Protocol provides a venue for the resolution of disputes arising out of the interpretation or application of the Vienna Convention. Under the Protocol, such disputes “shall lie within the compulsory jurisdiction of the International Court of Justice” and “may accordingly be brought before the [ICJ] … by any party to the dispute being a Party to the present Protocol.”

    The ICJ is “the principal judicial organ of the United Nations.” Under the U. N. Charter, “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” The ICJ’s jurisdiction in any particular case, however, is dependent upon the consent of the parties.... By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, subsequent to the ICJ’s judgment in Avena, the United States gave notice of withdrawal from the Optional Protocol to the Vienna Convention. Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations.


    Petitioner José Ernesto Medelln, a Mexican national, has lived in the United States since preschool. A member of the “Black and Whites” gang, Medelln was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers.

    On June 24, 1993, 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena were walking home when they encountered Medelln and several fellow gang members. Medelln attempted to engage Elizabeth in conversation. When she tried to run, petitioner threw her to the ground. Jennifer was grabbed by other gang members when she, in response to her friend’s cries, ran back to help. The gang members raped both girls for over an hour. Then, to prevent their victims from identifying them, Medelln and his fellow gang members murdered the girls and discarded their bodies in a wooded area. Medelln was personally responsible for strangling at least one of the girls with her own shoelace.

    Medelln was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellin was given Miranda warnings; he then signed a written waiver and gave a detailed written confession. Local law enforcement officers did not, however, inform Medellin of his Vienna Convention right to notify the Mexican consulate of his detention. Medelln was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. 

    Medelln first raised his Vienna Convention claim in his first application for state postconviction relief. The state trial court held that the claim was procedurally defaulted because Medelln had failed to raise it at trial or on direct review. The trial court also rejected the Vienna Convention claim on the merits, finding that Medelln had “fail[ed] to show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment.” 

    Medelln then filed a habeas petition in Federal District Court. The District Court denied relief, holding that Medelln’s Vienna Convention claim was procedurally defaulted and that Medelln had failed to show prejudice arising from the Vienna Convention violation.

    While Medelln’s application for a certificate of appealability was pending in the Fifth Circuit, the ICJ issued its decision in Avena. The ICJ held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform the 51 named Mexican nationals, including Medelln, of their Vienna Convention rights. In the ICJ’s determination, the United States was obligated “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals.”  The ICJ indicated that such review was required without regard to state procedural default rules. 

    The Fifth Circuit denied a certificate of appealability.... This Court granted certiorari. Before we heard oral argument, however, President George W. Bush issued his Memorandum to the United States Attorney General, providing:

I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

    Medelln, relying on the President’s Memorandum and the ICJ’s decision in Avena, filed a second application for habeas relief in state court. Because the state-court proceedings might have provided Medelln with the review and reconsideration he requested, and because his claim for federal relief might otherwise have been barred, we dismissed his petition for certiorari as improvidently granted. 

    The Texas Court of Criminal Appeals subsequently dismissed Medelln’s second state habeas application as an abuse of the writ. In the court’s view, neither the Avena decision nor the President’s Memorandum was “binding federal law” that could displace the State’s limitations on the filing of successive habeas applications. We again granted certiorari.


    Medelln first contends that the ICJ’s judgment in Avena constitutes a “binding” obligation on the state and federal courts of the United States. He argues that “by virtue of the Supremacy Clause, the treaties requiring compliance with the Avena judgment are already the ‘Law of the Land’ by which all state and federal courts in this country are ‘bound.’” Accordingly, Medelln argues, Avena is a binding federal rule of decision that pre-empts contrary state limitations on successive habeas petitions.

    No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.

    This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson (1829) which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms....”

    Medelln and his amici contend that the Optional Protocol, United Nations Charter, and ICJ Statute supply the “relevant obligation” to give the Avena judgment binding effect in the domestic courts of the United States. Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law....


    Medelln next argues that the ICJ’s judgment in Avena is binding on state courts by virtue of the President’s February 28, 2005 Memorandum. The United States contends that while the Avena judgment does not of its own force require domestic courts to set aside ordinary rules of procedural default, that judgment became the law of the land with precisely that effect pursuant to the President’s Memorandum and his power “to establish binding rules of decision that preempt contrary state law.” Accordingly, we must decide whether the President’s declaration alters our conclusion that the Avena judgment is not a rule of domestic law binding in state and federal courts.

    The United States maintains that the President’s constitutional role “uniquely qualifies” him to resolve the sensitive foreign policy decisions that bear on compliance with an ICJ decision and “to do so expeditiously.” We do not question these propositions. In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. These interests are plainly compelling.

    Such considerations, however, do not allow us to set aside first principles. The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” 

    Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”  Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon 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.” In this circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”

    The United States marshals two principal arguments in favor of the President’s authority “to establish binding rules of decision that preempt contrary state law.”  The Solicitor General first argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The United States also relies upon an “independent” international dispute-resolution power wholly apart from the asserted authority based on the pertinent treaties. Medelln adds the additional argument that the President’s Memorandum is a valid exercise of his power to take care that the laws be faithfully executed.

    The United States maintains that the President’s Memorandum is authorized by the Optional Protocol and the U. N. Charter. That is, because the relevant treaties “create an obligation to comply with Avena,” they “implicitly give the President authority to implement that treaty-based obligation.” As a result, the President’s Memorandum is well grounded in the first category of the Youngstown framework.

    We disagree. The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. As this Court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.” 

    The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to “make” a treaty. Art. II, §2. If the Executive determines that a treaty should have domestic effect of its own force, that determination may be implemented “in mak[ing]” the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote consistent with all other constitutional restraints.

    Once a treaty is ratified without provisions clearly according it domestic effect, however, whether the treaty will ever have such effect is governed by the fundamental constitutional principle that “ ‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.’ ” As already noted, the terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto. Indeed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” 

    A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework.

    Indeed, the preceding discussion should make clear that the non-self-executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so. When 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. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson’s third category, not the first or even the second....   

    At bottom, none of the sources of authority identified by the United States supports the President’s claim that Congress has acquiesced in his asserted power to establish on his own federal law or to override state law.


    We thus turn to the United States’ claim that—independent of the United States’ treaty obligations—the Memorandum is a valid exercise of the President’s foreign affairs authority to resolve claims disputes with foreign nations. The United States relies on a series of cases in which this Court has upheld the authority of the President to settle foreign claims pursuant to an executive agreement. In these cases this Court has explained that, if pervasive enough, a history of congressional acquiescence can be treated as a “gloss on ‘Executive Power’ vested in the President by §1 of Art. II.”

    This argument is of a different nature than the one rejected above. Rather than relying on the United States’ treaty obligations, the President relies on an independent source of authority in ordering Texas to put aside its procedural bar to successive habeas petitions. Nevertheless, we find that our claims-settlement cases do not support the authority that the President asserts in this case.

    The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.”

    The President’s Memorandum is not supported by a “particularly longstanding practice” of congressional acquiescence, but rather is what the United States itself has described as “unprecedented action.” Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one 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 Executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum.


    Medellin argues that the President’s Memorandum is a valid exercise of his “Take Care” power. The United States, however, does not rely upon the President’s responsibility to “take Care that the Laws be faithfully executed.” We think this a wise concession. This authority allows the President to execute the laws, not make them. For the reasons we have stated, the Avena judgment is not domestic law; accordingly, the President cannot rely on his Take Care powers here.

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