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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, August 06, 2008 ::
    Medellin, continued

    First, I hope readers prayed for Medellin last night, and for his victims and their families. I'll continue to do so. I'm Catholic so I get to do that. 2 Maccabees 12:43-46. (Wuzzat? -- What, it's my fault somebody threw some books out your Bible?)

    Second, of last night's dissents, only Breyer's was really substantive. (Court's per curiam opinon and four dissents here.) Some point-counterpoint:
    [T]he ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision.
    I guess we're down to bedrock on the sovereignty issue here. For most votarists of public international law, those who talk seriously about national sovereignty are good for, at most, a laugh. I don't propose to entertain them unnecessarily.
    [L]egislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law.
    Good job, too, because that's how, in the case of a non-self-executing treaty, one turns an i.l.o. into a b.d.l. He goes on:
    See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).
    That last bit, in parentheses, gives the game away: the bill was referred to committee at the point where Congress had one foot out the door, in midsummer of an election year, with both major party conventions looming between now and Congress's next meeting, and no one planning to do anything not directly keyed to the presidential election once that meeting happens.

    In other words, for all the "international legal obligation" solemnity that surrounds it (no cute acronyms here!), the Avena Case Implementation Act has been dropped in the ashcan by the Democratic majority that supposedly favors it.

    Is the Court supposed to ignore this fact? Perhaps, but if so, note what follows: a biennial ritual (or at most annual) in which a congressman places an Avena Case Implementation Act in the hopper at midsummer (like that "rose" from first-year contract law), and the Court then grants Medellin yet another stay because, you know, Congress might yet act.

    I suggest, instead, that Congress has to act if it wants to, and that there is no principled way for the Court to fashion a determinate injunction-like remedy to freeze the situation to allow Congress time to act.
    Congress may not have understood the legal need for further legislation of this kind.
    That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.
    A point, definitely a point. But valid only insofar as the non-self-executing nature of the Vienna Convention on Consular Relations was created by the Court's decision the Medellin case, and was utterly counter-intuitive before that. Many will argue that position. But I understood the Medellin Court to understand itself to be construing the Convention, not rewriting it. If so, then Congress knew or should have known that it needed to implement the Convention through legislation.

    The rest of Breyer's arguments mainly re-package the declaration that Medellin's execution places "us" in breach of the Convention, because Medellin was not granted a hearing to determine whether his lack of consular access was harmless error. Leaving aside the question of whether the Convention is satisfied by such a harmless-error hearing -- it requires consular access, period, does it not? -- this "us" business begs the question. If "we" are in breach, it's because the particular subset of "us" whose job it is to bring "us" into compliance -- Congress -- hasn't gotten off its "us" yet on this issue. And our constitutional system -- which we can try to explain to you, Mr. ICJ, if you're interested -- doesn't allow parts of "us" to do other parts' jobs.

    :: David M. Wagner 11:41 AM [+] ::

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