Medellin, Ex Parte Jose Ernesto

IN THE COURT OF CRIMINAL

APPEALS

OF TEXAS

NO.

AP-75,207

EX

PARTE JOS _ ERNESTO MEDELL _ N , Applicant

ON

APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 675430 FROM THE 339TH DISTRICT COURT

OF HARRIS COUNTY

Keasler, J., delivered the opinion of the Court

with respect to Parts I, II, III.A., III.C., and IV , in which Keller , P.J.,

Meyers, Price, Johnson, Hervey, Holcomb , and Cochran , JJ. ,

joined, and an opinion with respect to Part III.B., in which Meyers , Price,

and Hervey , JJ. , joined . Womack, J., concurs in the

result . Keller, P.J., filed a

concurring opinion . Price, J., filed

a concurring opinion . Hervey, J., filed

a concurring opinion . Cochran, J., filed

a concurring opinion in which Johnson, and Holcomb, JJ., joined .

O

P I N I O N

José Ernesto Medellín filed this

subsequent application, alleging that the International Court of Justice Avena

decision and the President = s memorandum directing state courts to give effect to

Avena , require this Court to reconsider his Article 36 Vienna Convention

claim because they (1) constitute binding federal law that preempt Section 5,

Article 11.071 and (2) were previously unavailable factual and legal bases

under Section 5(a)(1). We hold that Avena

and the President = s memorandum do not preempt Section 5 and do not qualify as

previously unavailable factual or legal bases.

I.

PROCEDURAL HISTORY OF MEDELL _ N = S CASE

Medellín, a Mexican national, was

convicted of capital murder and sentenced to death for his participation in the

gang rape and murder of two teenage girls in Houston. We affirmed his conviction and sentence on

direct appeal. [1]

Medellín filed an initial application

for a writ of habeas corpus, claiming for the first time, among other things,

that his rights under Article 36 of the Vienna Convention had been violated

because he had not been advised of his right to contact the Mexican consular

official after he was arrested. [2] The district court found that Medellín failed

to object to the violation of his Vienna Convention rights at trial and, as a

result, concluded that his claim was procedurally barred from review. The court also found, in the alternative,

that Medellín, as a private individual, did not have standing to bring a claim

under the Vienna Convention because it is a treaty among nations and therefore

does not confer enforceable rights on individuals; only signatory nations have

standing to raise a claim under the treaty.

Offering an additional alternative, the court determined that Medellín

failed to show harm because he received effective legal representation and his

constitutional rights had been safeguarded.

Finally, the court concluded that Medellín did not prove that his rights

under the Fifth, Sixth, and Fourteenth Amendments had been violated and that he

failed to show that any non-notification affected the validity of his

conviction and sentence. We adopted the

trial court = s findings of fact and conclusions of

law with written order and denied relief. [3]

Medellín then presented his Vienna

Convention claim in a federal petition for a writ of habeas corpus. The district court denied relief, [4]

and Medellín filed for a certificate of appealability. While his application was pending, the

International Court of Justice (ICJ) issued its decision in Avena . [5] In that case, Mexico claimed that the United

States had violated the Vienna Convention by failing to timely advise more than

fifty Mexican nationals awaiting execution in United States prisons, including

Medellín, of their right to talk to a consular official after they had been

detained. [6] The ICJ ruled in favor of Mexico, holding

that the Vienna Convention does confer individual rights and that the United

States violated the Convention. [7] To remedy the violation, the ICJ ordered the

United States to provide review and reconsideration of the convictions and

sentences [8]

at issue to determine whether the violation A caused actual prejudice to the

defendant in the process of administration of criminal justice. @ [9]

The ICJ specifically stated that review is required regardless of

procedural default rules that would otherwise bar review. [10]

The federal district court denied

Medellín = s application for a certificate of

appealability, and Medellín appealed to the United States Court of Appeals for

the Fifth Circuit, which also denied his application. [11] The Fifth Circuit noted the ICJ decision in Avena ,

but determined that it was bound by the Supreme Court = s decision in Breard v. Greene ,

which held that claims based on a violation of the Vienna Convention are

subject to procedural default rules. [12] Continuing, the court found that even if

Medellín = s Vienna Convention claim was not

procedurally defaulted, its previous holding in United States v.

Jimenez-Nava C that the Vienna Convention does not create individually

enforceable rights C would require it to deny Medellín = s application for a certificate of

appealability. [13] Medellín

petitioned for certiorari to the Supreme Court of the United States, which

granted review. [14] Before oral argument, the President issued a

memorandum directing state courts to give effect to the Avena decision

under the principles of comity. [15] Then, while his case was pending before the

Supreme Court, Medellín filed an application for a writ of habeas corpus in

this Court, requesting that we give full effect to the Avena decision

and to the President = s memorandum. [16] The Supreme Court subsequently dismissed

Medellín = s case as improvidently granted,

stating that there is a possibility that A Texas courts will provide Medellin

with the review he seeks pursuant to the Avena judgment and the

President = s memorandum . . . . @ [17]

Based on the Supreme Court = s dismissal, we determined that

Medellín = s subsequent application is ripe for

consideration. [18] We therefore filed and set this case for

submission.

Under Article 11.071, Section 5(a) of

the Code of Criminal Procedure, we may not consider the merits of any claims

raised on a subsequent application for a writ of habeas corpus or grant relief

unless the applicant provides sufficient specific facts demonstrating that:

! A the current claims and issues have not been and could

not have been presented previously in a timely initial application or in a

previously considered application . . . because the factual or legal basis for

the claim was unavailable on the date the applicant filed the previous

application @ ; [19]

! A by a preponderance of the evidence, but for a

violation of the United States Constitution no rational juror could have found

the applicant guilty beyond a reasonable doubt @ ; [20]

or

! A by clear and convincing evidence, but for a violation

of the United States Constitution no rational juror would have answered in the

State = s favor one or more of the special issues . . . . @ [21]

We ordered Medellín and the State to

brief the following issue: whether Medellín A meets the requirements for

consideration of a subsequent application for writ of habeas corpus under the

provisions of Article 11.071, section 5, of the Texas Code of Criminal

Procedure. @ [22]

We also invited the Attorney General of the United States to A present the views of the United

States. @ [23]

On September 14, 2005, we heard oral argument from the parties and the

Solicitor General, who argued on behalf of the Attorney General of the United

States. Medellín = s claims raise many remarkable issues

of first impression for this Court to resolve.

Before we provide some necessary background information, we begin with a

brief overview of the arguments advanced by the parties and the United States

as amicus curiae .

Medellín argues that the Avena

decision and the President = s memorandum are binding federal law that preempt Section 5

under the Supremacy Clause of the United States Constitution. [24] Alternatively, contending that he meets the

requirements of Section 5(a)(1), Medellín claims that the Avena decision

and the President = s memorandum are previously unavailable factual and legal

bases because neither was available when he filed his first application. [25] Countering Medellín = s arguments, the State contends that

the Avena decision and the President = s memorandum do not meet the

requirements of Section 5 and do not override it. [26] Finally, the United States as amicus

curiae asserts that, although Avena is not enforceable in United

States courts, Medellín is entitled to review and reconsideration of the merits

of his Vienna Convention claim A to the extent that his claim relies on the President = s determination that > review and reconsideration = . . . by Texas courts is necessary

for compliance with the United States = international obligations. @ [27]

The United States also avers that A Section 5 would contravene the

President = s implementation of treaty

obligations, and federal law would preempt its operation in the circumstances

of this case. @ [28]

II.

CONTEXTUAL BACKGROUND

A. Treaties

Treaties are compacts between

sovereign nations. [29] In the international arena, compliance with a treaty depends upon A the interest and the honor @ of the treaty = s member nations. [30] When a member nation violates a treaty,

another member nation cannot obtain redress from the judicial body of the

violating nation but may seek enforcement through A international

negotiations and reclamations. @ [31]

Treaties, entered into by the

President of the United States with the consent of a super-majority of the

United States Senate, [32]

are incorporated into the domestic law of our country pursuant to the Supremacy

Clause of the United States Constitution, which commands: A all Treaties made, or which shall be

made, under the Authority of the United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding. @ [33]

Treaties are A placed on the same footing @ as legislation enacted by the United

States Congress, and while neither is superior to the other, [34]

both are subject to the United States Constitution. [35] In describing the relationship between

treaties and acts of Congress, the Supreme Court explained the difference

between treaties that do not contain self-executing provisions and those that

do:

When the stipulations are not self-executing they can

only be enforced pursuant to legislation to carry them into effect, and such

legislation is as much subject to modification and repeal by Congress as

legislation upon any other subject. If

the treaty contains stipulations which are self-executing, that is, require no

legislation to make them operative, to that extent they have the force and

effect of a legislative enactment. Congress may modify such provisions, so far

as they bind the United States, or supersede them altogether. [36]

When a self-executing treaty and an

act of Congress concern the same subject matter, courts should give effect to

both unless the language of one would be violated. [37] But when A the two are inconsistent, the one

last in date will control the other. @ [38]

Addressing the relationship between

state law and treaties, the Supreme Court has stated: A [T]reaties with foreign nations will

be carefully construed so as not to derogate from the authority and

jurisdiction of the States of this nation unless clearly necessary to

effectuate the national policy. @ [39]

Accordingly, A state law must yield when it is inconsistent with, or impairs

the policy or provisions of, a treaty or of an international compact or

agreement. @ [40]

The Supreme Court

has recognized that a treaty may contain certain provisions that grant

judicially enforceable rights to a foreign national residing in another

country. [41] In such cases, under the Supremacy Clause,

the provisions of the treaty are placed in the A same category as

other laws of Congress @ and therefore, are A subject to such

acts as Congress may pass for its enforcement, modification, or repeal. @ [42]

When a treaty confers rights that are judicially enforceable, a court

will look A to the treaty for a rule of decision

for the case before it as it would to a statute. @ [43]

However, as we recently noted, there is a presumption that A > international agreements, even those

directly benefitting private persons, generally do not create private rights or

provide for a private cause of action in domestic courts. = @ [44]

Numerous federal circuit courts of appeals have also acknowledged this

presumption, finding that treaty rights belong to the member nations only, [45]

and therefore, may be enforced only through international political and

diplomatic channels.

B. The

United Nations Charter and the Statute of the International Court of Justice

The United Nations was formed when

its Charter, drafted in San Francisco at the United Nations Conference on

International Organization, was ratified by the United States, the Republic of China,

France, the Union of Soviet Socialist Republics, Great Britain , Northern Ireland, and a majority of

other signatory nations. [46] With respect to the United States, the

Charter entered into force on October 24, 1945.

Article 92 establishes the ICJ as A the principal judicial organ of the

United Nations. @ [47]

The ICJ operates A in accordance with the annexed Statute [of the ICJ] . . . . @ [48]

Under Article 93, A All Members of the United Nations are ipso facto

parties to the Statute of the International Court of Justice. @ [49]

The Statute of the ICJ establishes, among other things, the court = s organization, competence (which

includes its jurisdiction), and procedures. [50] Article 34 of the Statute provides that A [o]nly states may be parties in cases

before the [ICJ] @ and, under Article 36(1), the court has jurisdiction over A cases which the parties refer to it

and all matters specifically provided for . . . in treaties and conventions in

force. @ [51]

Under Article 59, an ICJ decision binds only the parties to that

particular case. [52] Article 94 of the United Nations Charter

states that each member A undertakes to comply with the decision of the International

Court of Justice in any case to which it is a party. @ [53]

If a party fails to comply with the ICJ = s decision, A the other party may have recourse to

the Security Council, which may, if it deems necessary, make recommendations or

decide upon measures to be taken to give effect to the judgment. @ [54]

C. The

Vienna Convention on Consular Relations and the Optional Protocol Concerning

the Compulsory Settlement of Disputes

The Vienna Convention on Consular

Relations was adopted by the United Nations Conference on Diplomatic

Intercourse and Immunities on April 24, 1963. [55] The Vienna Convention is a seventy-nine

article multilateral treaty that A promotes the effective delivery of

consular services in foreign countries, including access to consular assistance

when a citizen of one country is arrested, committed to prison or custody

pending trial, or detained in any other manner in another country. @ [56]

Mexico, one of the first countries to deposit its ratification with the

United Nations Secretary-General after the Convention opened for signatures on

April 18, 1961, became bound by Convention on March 19, 1967. [57] With the advice and consent of the Senate,

the President ratified the Convention, which became binding on the United

States on December 24, 1969. [58]

Article 36 A ensure[s] that no signatory nation

denies consular access and assistance to another country = s citizens traveling or residing in a

foreign country . . . . @ [59]

Article 36 reads as follows:

1. With a view

to facilitating the exercise of consular functions relating to nationals of the

sending State:

(a) consular

officers shall be free to communicate with nationals of the sending State and

to have access to them. Nationals of the sending State shall have the same

freedom with respect to communication with and access to consular officers of

the sending State;

(b) if he so requests, the competent authorities of

the receiving State shall, without delay, inform the consular post of the

sending State if, within its consular district, a national of that State is

arrested or committed to prison or to custody pending trial or is detained in

any other manner. Any communication addressed to the consular post by the

person arrested, in prison, custody or detention shall also be forwarded by the

said authorities without delay. The said authorities shall inform the person

concerned without delay of his rights under this sub-paragraph;

(c) consular

officers shall have the right to visit a national of the sending State who is

in prison, custody or detention, to converse and correspond with him and to

arrange for his legal representation. They shall also have the right to visit

any national of the sending State who is in prison, custody or detention in

their district in pursuance of a judgment. Nevertheless, consular officers

shall refrain from taking action on behalf of a national who is in prison,

custody or detention if he expressly opposes such action.

2. The

rights referred to in paragraph 1 of this Article shall be exercised in

conformity with the laws and regulations of the receiving State, subject to the

proviso, however, that the said laws and regulations must enable full effect to

be given to the purposes for which the rights accorded under this Article are

intended. [60]

In addition to becoming signatories

to the Vienna Convention, Mexico and the United States became parties to the

Optional Protocol Concerning the Compulsory Settlement of Disputes. Article I of the Optional Protocol states: A Disputes arising out of the

interpretation or application of the Convention shall lie within the compulsory

jurisdiction of the International Court of Justice and may accordingly be

brought before the Court by an application made by any party to the dispute

being a Party to the present Protocol. @ [61] Although the

United States recently withdrew from the Optional Protocol, the United States

has agreed to A discharge its inter-national obligations under the

decision . . . by having State courts give effect to the [ Avena ] decision

. . . . @ [62]

D. International

Court of Justice Rulings on Article 36 of the Vienna Convention Involving the

United States

The ICJ has encountered a series of

cases filed against the United States by other nations alleging violations of

Article 36 of the Vienna Convention.

Paraguay filed the first case on behalf of its citizen, Angel Francisco

Breard. [63] The ICJ issued an order, at Paraguay = s request, requesting the United

States to stay Breard = s execution until it could render a decision. [64] Based on that order, Breard filed an original

petition for a writ of habeas corpus and an application to stay his execution

in the Supreme Court of the United States. [65] The Supreme Court found that Breard = s claim was procedurally defaulted

and denied his petition and application; Breard was later executed. [66] Paraguay then requested that the ICJ

discontinue the proceedings with prejudice; thus, the ICJ did not issue a

decision regarding Breard. [67]

Subsequently, two more suits were

filed, Federal Republic of Germany v. United States of America (LaGrand) [68]

and Mexico v. United States of America (Avena) . [69] In LaGrand , Germany initiated

proceedings in the ICJ on behalf of two of its citizens, brothers Karl and

Walter LaGrand, who had been convicted of murder and sentenced to death in

Arizona. [70]

Germany alleged that the United States violated Article 36 of the Vienna

Convention by failing to inform the LaGrands of their right to contact a German

consular official. [71] Although both the LaGrands were executed

before the ICJ issued its judgment, the ICJ still found, among other things,

that: (1) Article 36 of the Vienna Convention confers individual rights on

detained foreign nationals; (2) the United States failed to comply with Article

36; and (3) as applied to the LaGrands, the procedural default rules of the

United States prevented the rights intended under Article 36 from being given

full effect. [72] The court further stated that the United

States, A by means of its own choosing, shall

allow the review and reconsideration of the conviction and sentence by taking

account of the violation of the rights set forth in that Convention. @ [73]

Almost three years after LaGrand ,

the ICJ handed down its decision in Avena . With regard to Medellín and fifty other

Mexican nationals, the ICJ concluded that the United States breached its

obligations under Article 36, paragraph 1(b) by failing to inform them, after

their arrests and without delay, of their right to contact the Mexican consular

post. [74] And in forty-nine cases, including Medellín = s case, the court found that the

United States violated Article 36, paragraphs 1(a) through (c) by failing to:

(1) notify the consular post of their detention; (2) enable consular officials

to communicate with and have access to them; and (3) enable consular officials

to visit with them. [75] The court also found that in Medellín = s case, in addition to thirty-three

others, the United States violated Article 36, paragraph (c) by preventing

consular officials from being able to timely arrange for their citizens = legal representation. [76]

After addressing the United States = and Mexico = s arguments concerning the

appropriate remedy for the Article 36 violations, the court concluded A that the > review and reconsideration = prescribed by it in the LaGrand

case should be effective. @ [77]

Directing the United States to provide review and reconsideration of the

convictions and sentences of the Mexican nationals whose individual rights

under the Vienna Convention had been violated, [78]

the ICJ stated:

The rights guaranteed under the Vienna Convention are

treaty rights which the United States has undertaken to comply with in relation

to the individual concerned, irrespective of the due process rights under

United States constitutional law. In

this regard, the Court would point out that what is crucial in the review and

reconsideration process is the existence of a procedure which guarantees that

full weight is given to the violation of the rights set forth in the Vienna

Convention, whatever may be the actual outcome of such review and

reconsideration. [79]

E. The

Presidential Memorandum

After the United States Supreme Court

granted certiorari in this case, the President weighed in on the controversy

surrounding Avena by issuing a memorandum to the United States Attorney

General, which states, in pertinent part, as follows:

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 inter-national 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. [80]

III. ANALYSIS

A. Avena

and The Supremacy Clause

Medellín claims that the ICJ decision

in Avena is binding federal law that preempts Section 5 of the Texas

Code of Criminal Procedure. The State

and the United States as amicus curiae disagree.

As an initial matter, while we

recognize the competing arguments before us concerning whether Article 36

confers privately enforceable rights, a resolution to that issue is not

required for our determination of whether Avena is enforceable in this

Court. Our decision is controlled by the Supreme Court = s recent opinion in Sanchez-Llama s

v. Oregon , and accordingly, we hold that Avena is not binding

federal law and therefore does not preempt Section 5.

While Medellín = s case was pending before us, the

Supreme Court granted certiorari in Sanchez-Llamas v. Oregon [81]

and Bustillo v. Johnson , [82]

consolidating the two cases to consider: A (1) whether Article 36 of the Vienna

Convention grants rights that may be invoked by individuals in a judicial

proceeding; (2) whether suppression of evidence is a proper remedy for a

violation of Article 36; and (3) whether an Article 36 claim may be deemed

forfeited under state procedural rules because a defendant failed to raise the

claim at trial. @ [83] The Court issued its decision in these cases

during the last week of its 2005 term. [84] Although the Court found it unnecessary to

decide whether Article 36 grants privately enforceable rights, [85]

the Court held that the exclusionary rule is not a remedy for violations of

Article 36 [86]

and reaffirmed its holding in Breard , stating A We . . . conclude,

as we did in Breard , that claims under Article 36 of the Vienna

Convention may be subjected to the same procedural default rules that apply

generally to other federal-law claims. @ [87]

When addressing

petitioner Bustillo = s argument that the Court should revisit

its decision in Breard in light of the ICJ = s decisions in LaGrand

and Avena , the Court concluded that ICJ decisions are entitled only to A > respectful consideration. = @ [88]

In support of this determination, the Court cited its constitutionally

mandated position as the absolute authority in defining a treaty = s meaning as federal law [89]

and stated that A [i]t is against this background that the United States

ratified, and the Senate gave its advice and consent to, the various agreements

that govern referral of Vienna Convention disputes to the ICJ. @ [90]

Looking at those agreements, the Court determined that A [n]othing in the structure or purpose

of the ICJ suggests that its interpretations were intended to be conclusive on

our courts. @ [91]

The Court noted that under Article 59 of the Statute of the ICJ, an ICJ

decision binds only the parties to that case and, as a result, not even the ICJ

is bound by its prior decisions. [92] Reviewing Articles 59 and 34 of the Statute,

the Court also considered that the A principle purpose [of the ICJ] is to

arbitrate particular disputes between national governments. @ [93]

Finally, the Court pointed out that Article 94(2) of the United Nations

Charter A contemplates quintessentially international

remedies @ because an aggrieved nation may seek

recourse from the Security Council when another nation fails to comply with an

ICJ decision. [94] According A > great weight = @ [95] to the meaning placed on the Vienna

Convention by the Executive Branch, the Court then noted that even though the

President has ordered state courts to give effect to Avena , the United

States has taken the position that ICJ decisions are not binding on United

States courts. [96] Finally, the Court expressed doubt about

giving A decisive weight @ to LaGrand and Avena

when the United States has since withdrawn from the Optional Protocol. [97]

Granting A > respectful consideration = @ [98] to the LaGrand and Avena

decisions, the Court held that A the ICJ = s interpretation cannot overcome the plain import of Article

36. @ [99]

Turning to its prior decision in Breard , the Court stated: A the procedural rules of domestic law

generally govern the implementation of an international treaty. @ [100]

The plain language of Article 36(2) C that Article 36(1) rights A shall be exercised in conformity with

the laws and regulations of the receiving State @ and that those A laws and regulations must enable full

effect to be given @ to the intended purpose of the rights in Article 36(1) [101] C means that rules of procedural

default apply to Vienna Convention claims just as they apply to claims raised

under the United States Constitution. [102]

The Court recognized the important role that procedural default rules play in

our adversarial justice system [103]

and disagreed with the ICJ = s interpretation of the A full effect @ language in Article 36(2). [104] Noting the problems associated with the ICJ

interpretation of the A full effect @ language, the Court stated:

Article 36 claims could trump not only procedural

default rules, but any number of other rules requiring parties to present their

legal claims at the appropriate time for adjudication. If the State = s

failure to inform the defendant of his Article 36 rights generally excuses the

defendant's failure to comply with relevant procedural rules, then presumably

rules such as statutes of limitations and prohibitions against filing

successive habeas petitions must also yield in the face of Article 36 claims. [105]

The Court then stated that the ICJ

interpretation A sweeps too broadly @ [106] because Article 36(2) also requires

that Article 36(1) rights A > be exercised in conformity with the

laws and regulations of the receiving State. = @ [107]

In this case, we are bound by the

Supreme Court = s determination that ICJ decisions

are not binding on United States courts.

As a result, Medellín, even as one of the named individuals in the

decision, cannot show that Avena requires us to set aside Section 5 and

review and reconsider his Vienna Convention claim.

B. The

Presidential Memorandum and the Supremacy Clause

Aligned on the effect of the

President = s memorandum, both Medellín and the

United States as amicus curiae contend that the President = s February 28, 2005, memorandum

preempts Section 5 and, as a result, requires us to review and reconsider

Medellín = s conviction and sentence as

prescribed by Avena . In

opposition, the State challenges, among other things, the effect of the

memorandum = s substantive language.

The United States = and Medellín = s arguments presume that the

President = s memorandum to the United States

Attorney General amounts to an executive order. [108] The State disputes this, arguing that the

memorandum does not contain any mandatory language: A While the President = s memo rightly shows the intent and

determination of the United States to enforce the consular provisions of the

Vienna Convention, the memo does not order . . . state courts to disregard

controlling precedents, state statutory provisions, or state procedural default

rules. @ [109]

The State = s position is not without merit, but because we conclude that

Medellín has not shown that the President = s memorandum entitles him to review

and reconsideration, we will assume, without deciding, that the memorandum

constitutes an executive order. [110]

A Governmental power over internal

affairs is distributed between the national government and the several states. @ [111]

Describing the federal government = s powers over internal affairs, the

Supreme Court has acknowledged: A The broad statement that the federal

government can exercise no powers except those specifically enumerated in the

Constitution, and such implied powers as are necessary and proper to carry into

effect the enumerated powers, is categorically true only in respect of our

internal affairs. @ [112]

With regard to external affairs, the federal government possesses

exclusive power; it is A vested with all the powers of government necessary to

maintain an effective control of international relations. @ [113]

When acting in external affairs, the President has A plenary and exclusive power . . . as

the sole organ of the federal government in the field of international

relations. @ [114]

And while the President = s power A must be exercised in subordination to the applicable

provisions of the Constitution, @ such power is not necessarily dependent on specific

congressional authorization. [115] The President, for example, can enter into

executive agreements with foreign nations without the advice and consent of the

Senate. [116] Valid agreements are accorded the same status

as treaties [117]

and, consequently, may preempt state law if they A > impair the effective exercise of the

Nation = s foreign policy. = @ [118]

Executive orders issued by the President must be authorized by an act of

Congress or by the Constitution. [119]

Justice Jackson, in his concurring

opinion in Youngstown Sheet & Tube Company v. Sawyer , sought to

define the scope of the President = s power. [120] Recognizing that he was offering A a somewhat over-simplified grouping @ because A [p]residential powers are not fixed

but fluctuate, depending upon their disjunction or conjunction with those of

Congress, @ [121] Justice Jackson related the

following:

! The

President = s A authority is at its maximum @ A [w]hen the President acts pursuant to

an express or implied authorization of Congress. @ [122]

In such circumstances, the President = s power A includes all that he possesses in his

own right plus all that Congress can delegate. @ [123]

! The President = s power is in A a zone

of twilight @ A [w]hen the President acts in absence of either a

congressional grant or denial of authority. @ [124] When acting in

A a zone of twilight, @ the

President is dependent on A his own independent powers. @ [125] And A Congress may have concurrent authority. @ [126] The A distribution @ of

authority between the President and Congress may be A uncertain. @ [127] A [C]ongressional inertia, indifference or quiescence

may sometimes, at least as a practical matter, enable, if not invite, measures

on independent presidential responsibility. @ [128]

! The

President = s A power is at its lowest ebb @ A [w]hen the President takes measures

incompatible with the expressed or implied will of Congress. @ [129]

When acting at the A lowest ebb, @ the President A can rely only upon his own

constitutional powers minus any constitutional powers of Congress over the

matter. @ [130]

Such power, Justice Jackson advised, A must be scrutinized with caution, for

what is at stake is the equilibrium established by our constitutional system. @ [131]

The President = s memorandum cites his authority

under the Constitution and laws of the United States. [132] With this in mind, we must decide whether the

President has exceeded his power by directing us to give effect to the Avena

decision under the principles of comity.

The President = s directive, which is dependent on his power to act in both

foreign and domestic affairs, is unprecedented.

What Justice Jackson proclaimed in his concurrence in Youngstown

Sheet & Tube Company fifty-four years ago C that the judiciary A may be surprised at the poverty of

really useful and unambiguous authority applicable to concrete problems of

executive power as they actually present themselves @ [133] C resonates with us today.

We hold that the President has

exceeded his constitutional authority by intruding into the independent powers

of the judiciary. By stating A that the United States will discharge

its inter-national obligations under the decision of the International Court of

Justice in . . . [ Avena ], by having State courts give effect to the

decision . . . [,] @ [134] the President = s determination is effectively

analogous to that decision. In Sanchez-Llamas ,

the Supreme Court made clear that its judicial A power includes the duty > to say what the law is. = @ [135]

And that power, according to the Court, includes the authority to

determine the meaning of a treaty as a A matter of federal law. @ [136]

The clear import of this is that the President cannot dictate to the

judiciary what law to apply or how to interpret the applicable law.

Medellín and the United States argue

that the President = s authority is at its maximum. In doing so, both rely on the President = s inherent foreign affairs power to

enter into executive agreements to settle claims with foreign nations as

recognized by the Supreme Court in United States v. Belmont , [137]

United States v. Pink , [138]

Dames & Moore v. Regan , [139]

and American Insurance Association v. Garamendi . [140] We therefore begin by reviewing these cases.

In Belmont , a Russian

corporation, Petrograd Metal Works, deposited funds with a private New York

City banker, Belmont. [141] The Soviet Government A dissolved, terminated and liquidated

[Petrograd Metal Works along with other corporations], and nationalized and

appropriated all of its property and assets of every kind and wherever

situated, including the deposit account with Belmont. @ [142]

The Soviet Government later assigned all amounts owed to it from United

States nationals to the United States. [143]

The [Litvinov] [A]ssignment was

effected by an exchange of diplomatic correspondence between the Soviet

Government and the [Executive Branch of the] United States. The purpose was to

bring about a final settlement of the claims and counterclaims between the

Soviet Government and the United States; and it was agreed that the Soviet

Government would take no steps to enforce claims against American nationals[.] [144]

The assignment was

accompanied by the recognition of the Soviet Government by the President of the

United States and the establishment of diplomatic relations between the two. [145]

The Supreme Court

disagreed with the lower court = s holding that

giving effect to the Soviet nationalization decree would result in A an act of

confiscation @ and would be A contrary to the

controlling public policy of the State of New York. @ [146] The Court found that the Litvinov Assignment

was an international compact between the Soviet and United States governments

and that the rule of a treaty = s supremacy over

state law applies equally to an international compact. [147] A [I]n respect of

our foreign relations generally, state lines disappear. As to such purposes the State of New York

does not exist. @ [148]

In Pink , the Supreme Court

recognized the Litvinov Assignment = s supremacy over a New York court

order. [149] The state court had directed Pink, New York = s Superintendent of Insurance, to pay

foreign creditors = claims with assets previously held by the First Russian

Insurance Company. [150] The Court ruled that the United States was

entitled to those assets under the

Litvinov Assignment because the Soviet Government was the successor of the

First Russian Insurance Company. [151] The Court observed that the United States = claims against the Russian

Government and its nationals were long-standing impediments to the United

States = recognition of the Soviet Government. [152] Acknowledging that the President has implied

powers in the field of foreign relations, the Court stated:

It was the

judgment of the political department that full recognition of the Soviet

Government required the settlement of all outstanding problems including the

claims of our nationals. Recognition and the Litvinov Assignment were

interdependent. We would usurp the

executive function if we held that that decision was not final and conclusive

in the courts. [153]

Relying on Belmont ,

the Court declared that the Litvinov Assignment has a A similar dignity @ to a treaty under

the Supremacy Clause [154]

and noted that A state law must yield when it is

inconsistent with, or impairs the policy or provisions of . . . an

international compact or agreement. @ [155] The Court went on to conclude:

The action of New York in this case

amounts in substance to a rejection of a part of the policy underlying

recognition by this nation of Soviet Russia. Such power is not accorded a State

in our constitutional system. To permit it would be to sanction a dangerous

invasion of Federal authority. [156]

In Dames &

Moore , when diplomatic officials were held hostage after the seizure of the

American Embassy in Tehran, Iran, the President issued an executive order that A blocked the

removal or transfer of > all property and interests in property of

the Government of Iran, its instrumentalities and controlled entities and the

Central Bank of Iran which are or become

subject to the jurisdiction of the United States = @ under the International Emergency

Economic Powers Act (IEEPA). [157]

Iran released the hostages after it

entered into an agreement with the United States to settle their claims, which

included the termination of A > all litigation as between the

Government of each party and the nationals of the other, and to bring about the

settlement and termination of all such claims through binding arbitration. = @ [158]

Additionally, the United States was obligated to transfer all Iranian

assets in the United States to a bank to satisfy any award made by the tribunal

against Iran. [159]

The President also issued several

executive orders A implementing the terms of the agreement. @ [160]

These Orders revoked all licenses

permitting the exercise of > any right, power, or privilege = with regard to Iranian funds,

securities, or deposits; > nullified = all non-Iranian interests in such assets acquired subsequent

to the blocking order . . . ; and

required those banks holding Iranian assets to transfer them > to the Federal Reserve Bank of New

York, to be held or transferred as directed by the Secretary of the Treasury. = [161]

Later, the President issued an

executive order A > suspend[ing] = all > claims which may be presented to the

. . . Tribunal = and provided that such claims > shall have no legal effect in any

action now pending in any court of the United States. = @ [162]

Dames & Moore filed suit against

the United States and the Secretary of the Treasury A to prevent enforcement of the

Executive Orders and Treasury Department regulations implementing the Agreement

with Iran, @ [163] arguing that the President exceeded

his statutory and constitutional authority. [164]

The Supreme Court implemented Justice

Jackson = s Presidential powers framework when

it considered whether the President was authorized to (1) nullify attachments

made after the blocking order, (2) order the transfer of all Iranian assets to

the Federal Reserve Bank, and (3) suspend pending court claims. [165] As to the first two, the Court determined

that the IEEPA specifically authorized the President = s actions, so those actions were,

therefore, A > supported by the strongest of

presumptions and the widest latitude of judicial interpretation . . . . = @ [166]

Because A [a] contrary ruling would mean that the Federal Government as

a whole lacked the power exercised by the President, @ the Court held that Dames &

Moore did not overcome the presumption in the President = s favor. [167]

As to the third, the Court determined

that the IEEPA and Hostage Act did not specifically authorize the President to

suspend claims pending in United States courts. [168] The Court, however, found those A statutes highly relevant in the

looser sense of indicating congressional acceptance of a broad scope for

executive action in circumstances such as those presented in this case. @ [169]

The Court reasoned that the IEEPA gives the President A broad authority . . . to act in times

of national emergency with respect to property of a foreign country, @ and the Hostage Act A indicates congressional willingness

that the President have broad discretion when responding to the hostile acts of

foreign sovereigns. @ [170]

The Court went on to state: A [W]e cannot ignore the general tenor

of Congress = legislation in this area in trying

to determine whether the President is acting alone or at least with the

acceptance of Congress. @ [171]

Because A Congress cannot anticipate and legislate with regard to every

possible action the President may find it necessary to take, @ a lack of specific congressional

approval does not imply disapproval. [172] In fact, Congress may A > invite = @ the exercise of independent

presidential authority where there is no indication that Congress sought to

limit it and there is a history of congressional acquiescence. [173] Turning to that history, the Court observed

that the United States had regularly settled claims against foreign nations on

behalf of its nationals by executive agreement [174]

and that A Congress has implicitly approved

[that] practice . . . . @ [175]

Congress = s acceptance of such executive action was also demonstrated

by the enactment of, and frequent amendment of, the International Claims

Settlement Act. [176] Furthermore, pointing to the legislative

history of the IEEPA, the Court found that Congress A accepted the authority of the

Executive to enter into settlement agreements. @ [177]

Finally, referring to Pink ,

the Court noted that its prior cases A recognized that the President does

have some measure of power to enter into executive agreements without obtaining

the advice and consent of the Senate. @ [178]

The Court then held that A the inferences to be drawn from the

character of the legislation Congress has enacted in the area, such as the

IEEPA and the Hostage Act, and from the history of acquiescence in executive

claims settlement - - we conclude that the President was authorized to suspend

pending claims . . . . @ [179]

The Court also noted that Congress had not taken any action that would

indicate that it disapproved of the agreement. [180] In Garamendi , the United

States President and German Chancellor entered into the German Foundation

Agreement, which established a foundation funded by Germany and German

companies A to compensate all those > who suffered at the hands of German

companies during the National Socialist era. = @ [181]

Because numerous class-action suits had been filed in the United States A against companies doing business in

Germany during the National Socialist era[,] @ [182] Germany = s participation in the agreement A was conditioned on some expectation

of security from lawsuits in United States courts[.] @ [183]

It was also A agreed that the German Foundation would work with the

International Commission on Holocaust Era Insurance Claims (ICHEIC)[,] @ [184] a voluntary organization formed

before the German Foundation Agreement, which A negotiat[ed] with European insurers

to provide information about unpaid insurance policies issued to Holocaust

victims and settle[d] . . . claims brought under them. @ [185]

Before the establishment of the

German Foundation Agreement, the California Code of Civil Procedure had been

amended to enable A state residents to sue in state court on insurance claims

based on acts perpetrated in the Holocaust[.] @ [186]

And a California statute, the Holocaust Victim Insurance Relief Act

(HVIRA), compelled insurance companies doing business in California A to disclose the details of > life, property, liability, health,

annuities, dowry, educational, or casualty insurance policies = issued > to persons in Europe, which were in effect

between 1920 and 1945. = @ [187]

After California A subpoenas were issued against several subsidiaries of

European insurance companies participating in the ICHEIC, @ the Deputy Secretary of State wrote

Garamendi, the California insurance commissioner, and the Governor of

California, informing them that HVIRA essentially threatened the establishment

of the German Foundation Agreement. [188] When Garamendi vowed to A enforce HVIRA to its fullest, @ [189]

European and United States insurance companies and the American

Insurance Association sought injunctive relief, alleging that HVIRA was

unconstitutional. [190]

Before the Supreme Court, the

insurance companies, the American Insurance Association, and the United States

as amicus curiae argued that the German Foundation Agreement preempted

HVIRA because it A interferes with foreign policy of the Executive Branch[.] @ [191]

The Court began by observing that A [a]lthough the source of the

President = s power to act in foreign affairs

does not enjoy any textual detail, the historical gloss on the > executive Power = vested in Article II of the

Constitution has recognized the President = s > vast share of responsibility for the

conduct of our foreign relations. = @ [192]

The Court then acknowledged the President = s authority to enter into executive

agreements and, in particular, that Congress has acquiesced to the use of those

agreements to settle claims of United States nationals against foreign

governments. [193] Although the insurance claims at issue were

against corporations, as opposed to a foreign government, the Court found that

the distinction was not determinative because the President had acted alone in

the past to settle wartime claims against private parties. [194]

Confronting preemption, the Court

considered the issue under its decision in Zschernig v. Miller because

the German Foundation Agreement did not contain a preemption clause. [195] In Zschernig , the Court held that an

Oregon escheat statute, which, as applied, prevented inheritance by nationals

of Communist countries, [196]

was A an > intrusion by the State into the field

of foreign affairs which the Constitution entrusts to the President and the

Congress. = @ [197]

The Garamendi Court noted that Zschernig A relied on statements in a number of

previous cases open to the reading that state action with more than incidental

effect on foreign affairs is preempted, even absent any affirmative federal

activity in the subject area of the state law, and hence without any showing of

conflict. @ [198]

The Court then referred to Justice Harlan = s concurring opinion in Zschernig ,

in which he stated that the majority = s A implication of preemption of the

entire field of foreign affairs was at odds with some other cases suggesting

that in the absence of positive federal action > the States may legislate in areas of

their traditional competence even though their statutes may have an incidental

effect on foreign relations. = @ [199]

Although the Court questioned whether

it was necessary to address field and conflict preemption, it decided that even

under A Justice Harlan = s view, the likelihood that state

legislation will produce something more than incidental effect in conflict with

express foreign policy of the National Government would require preemption of

the state law. @ [200]

Nevertheless, because Justice Harlan believed that state legislation

within its traditional competence may enable the state to prevail, the Court

determined A it would be reasonable to consider

the strength of the state interest, judged by standards of traditional

practice, when deciding how serious a conflict must be shown before declaring

the state law preempted. @ [201]

Evaluating the President = s action first, the Court concluded

that the German Foundation Agreement was A within the traditional subject matter

of foreign policy in which national, not state, interests are overriding . . .

. @ [202]

The Court acknowledged that

[t]he approach taken serves to

resolve the several competing matters of national concern apparent in the

German Foundation Agreement: the national interest in maintaining amicable

relationships with current European allies; survivors = interests in a > fair and prompt = but nonadversarial resolution of

their claims so as to > bring some measure of justice . . . in their lifetimes = ; and the companies = interest in securing > legal peace = when they settle claims in this

fashion. [203]

Looking then to California = s interests, the Court determined

those interests were weak when considered A against the backdrop of traditional

state legislative subject matter[.] @ [204]

Although California had an interest in consumer protection, the Court

noted that by limiting HVIRA to certain policies, it was A doubt[ful] that the purpose of the

California law [was] an evaluation of corporate reliability in contemporary

insuring in the State. @ [205]

The Court also considered California = s interest in vindicating A the claims of Holocaust survivors @ but determined A that the very same objective

dignifies the interest of the National Government in devising its chosen

mechanism for voluntary settlements, there being about 100,000 survivors in the

country, only a small fraction of them in California. @ [206]

The Court held that the German

Foundation Agreement preempted HVIRA, reasoning, that: HVIRA A undercuts the President = s diplomatic discretion and the

choice he has made exercising it @ ; [207]

A the President = s authority to provide for settling

claims in winding up international hostilities requires flexibility in wielding

> the coercive power of the national

economy = as a tool of diplomacy @ ; [208]

and A HVIRA is an obstacle to the success

of the National Government = s chosen > calibration of force = in dealing with the Europeans using

a voluntary approach. @ [209]

Turning to the case before us, we

conclude that the reliance on the President = s power to enter into executive

agreements to settle disputes with other nations, and even corporations under

the limited circumstances described in Garamendi , by Medellín and the

United States is misplaced. The

President has not entered into any such agreement with Mexico relating to the

Mexican nationals named in the Avena decision. There has been no settlement. Rather, the presidential memorandum is a

unilateral act executed in an effort to achieve a settlement with Mexico.

The President = s independent foreign affairs power

to enter into an executive agreement to settle a dispute with a foreign nation

under Article II of the Constitution [210]

A has received congressional

acquiescence throughout its history . . . . @ [211]

But there is no similar history of congressional acquiescence relating

to the President = s authority to unilaterally settle a dispute with another

nation by executive order, memorandum, or directive. [212] So, when issuing the February 28, 2005,

memorandum, the President = s authority was not at its maximum because the President did

not act A pursuant to an express or implied

authorization of Congress[.] @ [213] With the President = s power not being at its zenith here,

we must ask whether the President has acted in the A absence of either a congressional

grant or denial of authority[.] @ [214]

Implied congressional ratification of the President = s settling of claims with foreign

nations is a A practice [that] goes back over 200

years to the first Presidential administration . . . . @ [215]

Here, the President = s unprecedented unilateral action of issuing this memorandum

does not fall into the category of presidential power employed in a A zone of twilight @ or where A congressional inertia, indifference

or quiescence @ enabled or invited the conduct of

the President. [216] In this context, it is evident that the

President = s independent power to settle a

dispute with a foreign nation, recognized throughout the nation = s history, depends on the existence

of an executive agreement. Given the

extraordinary conduct of the President, unsupported by a history of

congressional acquiescence, we find that the President = s chosen method for resolving this

country = s dispute with Mexico is A incompatible with the . . . implied

will of Congress[.] @ [217]

Accordingly, in this instance, we find that the exercise of the

President = s foreign affairs power A is at its lowest ebb[.] @ [218]

Having acted contrary to the implied will of Congress, we conclude that

the President has exceeded his inherent constitutional foreign affairs

authority by directing state courts to comply with Avena .

The United States submits that

requiring a formal bilateral agreement would (1) A > hamstring the President in settling

international controversies = [219] and weaken this nation = s ability to fulfill its treaty

obligations @ ; (2) A fail to recognize the practical

reality that there are occasions when a foreign government may acquiesce in a

resolution that it is unwilling to formally approve @ ; (3) A fail to recognize that obtaining a

formal agreement can be a time consuming process that is ill-suited for

occasions when swift action is required @ ; and (4) A have the perverse effect of assigning

to a foreign government veto power over the President = s exercise of his authority over

foreign affairs. @ [220]

Contrary to the United States = contentions, requiring a formal

bilateral agreement does not limit or constrain the President = s ability to settle international

controversies or comply with treaty obligations. The President = s ability to negotiate and enter into

an executive agreement to settle a dispute with a foreign nation remains. In this case, however, the President failed

to avail himself of that mechanism to settle this nation = s dispute with Mexico. And although it may be time-consuming to

obtain an executive agreement, the need for A swift action @ does not override what the

Constitution requires C an international compact or agreement.

A necessary component of any

executive agreement is the negotiation process that precedes it, which ensures

that each sovereignty is represented and heard.

What is ultimately achieved through that process, which invariably

involves compromise, will reflect a meeting of the minds C a settlement that embodies the terms,

conditions, rights, and obligations agreed to during the negotiation

process. At odds with this is the notion

that a A foreign government may acquiesce in a

resolution that it is unwilling to formally approve. @

A Presidential resolution that is based on an evaluation of the means

necessary to resolve a dispute and then implemented in anticipation of future

acquiescence by a foreign government is not a settlement. The mere possibility of later acquiescence by

a foreign government is speculation.

Representatives of foreign governments change, and with them,

international relations are subject to modification. When it comes to foreign relations, history

has proven that a nation deemed an ally on one day, may on the next, be

declared an enemy. Finally, the view

that an executive agreement allows A a foreign government veto power over

the President = s exercise of his foreign affairs

powers @ undermines the purpose of the

negotiation process C the accomplishment of an actual settlement.

The absence of an executive agreement between

the United States and Mexico is central to our determination that the President

has exceeded his inherent foreign affairs power by ordering us to comply with Avena . We must make clear, however, that our

decision is limited to the issue before us C the effect of the President = s February 28, 2005, memorandum. Therefore, we express no opinion about

whether an executive agreement between the United States and Mexico providing

for state court compliance with Avena would preempt state law.

Medellín also relies on the President = s duty to faithfully execute the laws

as provided in Article II, Section 3 of the Constitution. [221] According to Medellín, the President A has both the authority and the duty

to enforce the United States = s treaty obligations within the domestic legal system @ because, under the Supremacy Clause,

treaties are supreme. [222] Related to this argument is Medellín = s contention that

the President has done nothing more

than confirm that the United States will do what it has already promised to do C abide by the decision of the ICJ in a

dispute concerning the interpretation and application of the Vienna

Convention. That promise was made by [a]

constitutionally prescribed process when the President, with the advice and

consent of the Senate, entered into the Vienna Convention, the Optional

Protocol, the U.N. Charter, and the ICJ Statute. [223]

The Supreme Court = s determination about the domestic

effect of ICJ decisions C that they are entitled only to A > respectful consideration = @ [224] C based on its interpretation of the

Statute of the ICJ and the United Nations Charter in Sanchez-Llamas [225]

forecloses any argument that the President is acting within his authority to

faithfully execute the laws of the United States. By directing state courts to give effect to Avena ,

the President has acted as a lawmaker.

But, as Justice Black explained in Youngstown Sheet & Tube ,

A [i]n the framework of our

Constitution, the President = s power to see that the laws are faithfully executed refutes

the idea that he is to be a lawmaker. @ [226]

The President = s February 28, 2005, determination cannot be sustained under

the power of the Executive to ensure that the laws are faithfully executed.

Relying again on the enumerated

powers of the President, Medellín also contends that A [t]he Constitution explicitly vests

the President with authority over diplomatic and consular relations. @ [227]

He argues: A No power is more clearly Presidential than the authority to

protect U.S. citizens and their interests abroad. @ [228]

He contends that the ability of the United States to protect its

citizens may be compromised if the United States does not comply with Avena . Looking to statutory authority, Medellín

maintains that by virtue of Title 22 United States Code, Sections 1732 and

402(a)(1)(D), A Congress has specifically referenced

the President = s duty in the context of protecting

U.S. citizens who have been detained or arrested in foreign lands, . . . and in

requiring the President to protect foreign nationals in the United States[.] @ [229]

Under Article II, Section 2, Clause

2 of the Constitution,

the President A by and with the Advice and Consent of

the Senate, shall appoint Ambassadors, other public Ministers and Consuls . . .

. @ [230]

And under Article II, Section 3, the President A shall receive Ambassadors and other

public Ministers . . . . @ [231]

The Hostage Act, Title 22, United

States Code, Section 1732 , states:

Whenever it is made known to the

President that any citizen of the United States has been unjustly deprived of

his liberty by or under the authority of any foreign government, it shall be

the duty of the President forthwith to demand of that government the reasons of

such imprisonment; and if it appears to be wrongful and in violation of the

rights of American citizenship, the President shall forthwith demand the

release of such citizen, and if the release so demanded is unreasonably delayed

or refused, the President shall use such means, not amounting to acts of war

and not otherwise prohibited by law, as he may think necessary and proper to

obtain or effectuate the release; and all the facts and proceedings relative

thereto shall as soon as practicable be communicated by the President to

Congress. [232]

Further, Title 22,

United States Code, Section 4802 , which defines the A Responsibility of

the Secretary of State, @ provides in relevant part:

(a) Security functions.(1) The Secretary of State

shall develop and implement (in consultation with the heads of other Federal

agencies having personnel or missions abroad where appropriate and within the

scope of the resources made available) policies and programs, including funding

levels and standards, to provide for the security of United States Government

operations of a diplomatic nature and foreign government operations of a

diplomatic nature in the United States. Such policies and programs shall include C

* * *

(D) protection of foreign missions, international

organizations, and foreign officials and other foreign persons in the United

States, as authorized by law. [233]

We have no doubt that the President

and other executive branch officials play a vital role in protecting the

interests of American citizens abroad when necessary. However, we do not construe the

constitutional provisions as expressly or implicitly granting the President the authority to mandate state

court compliance with the ICJ Avena decision, and Medellín cites no

precedent that would lead us to conclude otherwise.

Nor can the

statutes be read to authorize the President = s independent

action in this case. First, there is no

indication that the Hostage Act specifically grants the President unlimited

power to act when the President = s objective is to

protect the interests of American citizens traveling or residing abroad. In Dames & Moore , the Supreme

Court reviewed the legislative history of the Hostage Act:

Congress in 1868 was concerned with

the activity of certain countries refusing to recognize the citizenship of

naturalized Americans traveling abroad, and repatriating such citizens against

their will. These countries were not

interested in returning the citizens in exchange for any sort of ransom. This

also explains the reference in the Act to imprisonment > in violation of the rights of American citizenship. = [234]

The Court further observed that the

proponents of the Act A argued that > something must be intrusted to the Executive = and that > the President ought to have the power

to do what the exigencies of the case require to rescue a citizen from imprisonment. = @ [235]

When determining whether the President had the authority to suspend

claims in American courts, the Court found that the Hostage Act A indicates congressional willingness

that the President have broad discretion when responding to the hostile acts of

foreign sovereigns. @ [236]

But implied congressional authority vested in the President to protect

United States citizens in response to the hostile acts of another nation where

the circumstances are exigent shows that the President = s power to protect United States

citizens abroad is not unqualified. We

cannot accept Medellín = s argument that the Hostage Act grants the President

unfettered authority to act to protect the interest of United States citizens

abroad. It strains logic to conclude

that the power delegated to the President under the Hostage Act permits the

President to engage in any conduct that will ensure the maintenance of that

power. Nevertheless, we need not decide

the scope of any implied power conferred to the President under the Hostage

Act, because, as we have already concluded in this case, A there is [not] a history of

congressional acquiescence in conduct of the sort engaged in by the President. @ [237]

When concluding that the President had the authority to suspend pending

court claims in Dames & Moore , the Court relied on not only the

President = s power under the Hostage Act, but on

the President = s power under the International

Emergency Economic Powers Act and the President = s power to settle claims with foreign

nations by executive agreement. [238] In doing so, the Court specifically noted: A Crucial to our decision today is the

conclusion that Congress has implicitly approved the practice of claim

settlement by executive agreement. @ [239]

We decline to find that the Hostage Act authorizes the President to

order this Court to comply with Avena .

Although Section

4802(a)(1)(D), Title 22, United States Code, provides that the Secretary of

State [240]

has the duty to protect A foreign missions, international

organizations, and foreign officials and other foreign persons in the United

States, @ that duty extends

only to things A > authorized by law. = @ [241] The statute, therefore, cannot be regarded as

an independent source of authority for the President = s memorandum

ordering state courts to comply with Avena .

In further support of its position

that the President has the authority to direct state courts to give effect to

the ICJ Avena decision, the United States directs us to the United Nations

Charter and the United Nations Participation Act. The United States maintains that the

ratification of the Charter A implicitly grants the President > the lead role = in determining how to respond to an

ICJ decision. @ [242]

And under the United Nations Participation Act, according to the United

States, the President, through appointed officials, A represents the United States in the

United Nations, including before the ICJ and in the Security Council. @ [243]

Moreover, the United States argues that Congress A expressly anticipated that these

officials would . . . perform > other functions in connection with the participation of the

United States in the United Nations = at the direction of the President or

his representative to the United Nations. @ [244]

Titled A Representation in Organization, @ Title 22, United States Code,

Section 287 provides in part:

(a) Appointment of representative;

rank, status and tenure; duties. The

President, by and with the advice and consent of the Senate, shall appoint a

representative of the United States to the United Nations who shall have the

rank and status of Ambassador Extraordinary and Plenipotentiary and shall hold

office at the pleasure of the President.

Such representative shall represent the United States in the Security

Council of the United Nations and may serve ex officio as representative of the

United States in any organ, commission, or other body of the United Nations

other than specialized agencies of the United Nations, and shall perform such

other functions in connection with the participation of the United States in

the United Nations as the President may, from time to time, direct.

(b) Appointment of additional representatives; rank,

status and tenure; duties; reappointment unnecessary. The President, by and with the advice and

consent of the Senate, shall appoint additional persons with appropriate

titles, rank, and status to represent the United States in the principal organs

of the United Nations and in such organs, commissions, or other bodies as may

be created by the United Nations with respect to nuclear energy or disarmament

(control and limitation of armament).

Such persons shall serve at the pleasure of the President and subject to

the direction of the Representative of the United States to the United

Nations. They shall, at the direction of

the Representative of the United States to the United Nations, represent the

United States in any organ, commission, or other body of the United Nations,

including the Security Council, the Economic and Social Council, and the

Trusteeship Council, and perform such other functions as the Representative of

the United States is authorized to perform in connection with the participation

of the United States in the United Nations.

Any Deputy Representative or any other officer holding office at the

time the provisions of this Act, as amended, become effective shall not be

required to be reappointed by reason of the enactment of this Act, as amended. [245]

Starting with the United Nations

Charter, we hold it does not authorize the type of action that the President

has taken here. The President is still

bound by the Constitution when deciding how the United States will respond to

an ICJ decision, [246]

and, as stated above, the President exceeded his implied foreign affairs power

by directing state courts to give effect to Avena .

Additionally, the subsections of the

United Nations Participation Act set forth above do not support the President = s determination. Because the participation of the United

States in proceedings before the ICJ does not bind the courts of this country

to comply with a decision of the ICJ, [247]

it necessarily follows that the participation of the United States in the

United Nations does not authorize the President to order state courts to give

effect to any decision rendered by the ICJ.

Based on the

foregoing, we hold that the President = s memorandum

ordering us to give effect to the ICJ Avena decision cannot be sustained

under the express or implied constitutional powers of the President relied on

by Medellín and the United States or under any power granted to the President

by an act of Congress cited by Medellín and the United States. [248] As such, the President has violated the

separation of powers doctrine by intruding into the domain of the judiciary,

and therefore, Medellín cannot show that the President = s memorandum

preempts Section 5.

C. Section

5(a)(1), Article 11.071 of the Texas Code of Criminal Procedure

We now consider whether Medellín has

satisfied the requirements of Article 11.071, Section 5(a)(1) of the Texas Code

of Criminal Procedure so as to permit this Court to review and reconsider his

Vienna Convention claim. Section 5(a)(1)

provides:

If a subsequent application for a

writ of habeas corpus is filed after filing an initial application, a court may

not consider the merits of or grant relief based on the subsequent application

unless the application contains sufficient specific facts establishing that:

the current claims and issues have not been and could

not have been presented previously in a timely initial application or in a

previously considered application filed under this article . . . because the

factual or legal basis for the claim was unavailable on the date the applicant

filed the previous application[.] [249]

Medellín contends that the Avena

decision and the Presidential memorandum serve as previously unavailable

factual and legal bases because both issued after his first application was

denied. The State maintains that the

legal basis for Medellín = s claim, the Vienna Convention, was available before his

trial and when he filed his first application.

Medellín claims, however, that he is not reasserting the same claim

presented on his first application; he contends that the Avena decision

and the President = s memorandum provide him with the right to prospective review

and reconsideration. We will address

whether the Avena decision or the Presidential memorandum qualify as a

new factual or legal basis under Section 5(a)(1) separately.

1. Factual

Basis

Section 5(e) of Article 11.071 states:

For purposes of Subsection (a)(1), a factual basis of

a claim is unavailable on or before a date described by Subsection (a)(1) if

the factual basis was not ascertainable through the exercise of reasonable

diligence on or before that date. [250]

What constitutes a A factual basis @ under Section 5(a)(1) is not

defined. Therefore, to determine whether Avena or the

President = s memorandum qualify as a previously

unavailable factual basis under Section 5(a)(1), we must perform a

statutory-construction analysis to determine the meaning of A factual. @

When interpreting a statute, A we seek to effectuate the > collective = intent or purpose of the legislators

who enacted the legislation. @ [251]

In doing so, we examine the A literal text @ [252] of a statute, which includes all

words and phrases, [253]

A to discern the fair, objective

meaning of that text at the time of its enactment. @ [254]

And A if the meaning of the statutory text,

when read using the established canons of construction relating to such text,

should have been plain to the legislators who voted on it, we ordinarily give

effect to that plain meaning. @ [255]

We will not give effect to the plain meaning of a statute = s text if, when applied, it leads to

an absurd result that could not have been intended by the Legislature. [256] When the application of a statute = s literal text leads to an absurd

result, or the text is ambiguous, we consult extratextual sources to determine

a statute = s meaning. [257]

In determining the plain meaning of A factual @ in Section 5(a)(1), we are guided by

the applicable canons of construction, Article 3.01 of the Code of Criminal

Procedure, which governs how words in the Code are to be understood, [258]

and Section 311.011 of the Texas Government Code (the Code Construction Act),

which provides for the common and technical use of words in the Code. [259] Article 3.01 of the Code of Criminal

Procedure states that A [a]ll words, phrases and terms used in this Code are to be

taken and understood in their ususal acceptation in common language, except

where specially defined. @ [260]

The Code Construction Act provides: A Words and phrases shall be read in

context and construed according to the rules of grammar and common usage. @ [261]

To discern what the usual acceptation

of the word A factual @ is in common language or how it is

construed according to the rules of common usage, we look to dictionary

definitions. [262] The word A factual, @ according to Webster = s Third New International Dictionary , means A of, relating to, or concerned with

facts @ and A restricted to, involving, or based on

fact . . . . @ [263]

The Dictionary of Modern American Usage offers two additional

definitions C A of or involving facts @ and A true. @ [264]

Illustrating the difference between the two definitions, the Dictionary

of Modern American Usage states that the first meaning A appears in phrases such as factual

finding and factual question , @ while the second meaning A appears in phrases such as factual

account and factual narrative . @ [265]

The meaning of A factual @ in Section 5(a)(1) falls within the first category of

phrases described in the Dictionary of Modern American Usage because A factual @ is paired with the word A basis. @

We turn our attention to the meaning of the word A fact @ according to its usual acceptation

in common language and the rules of common usage.

Our review of multiple dictionaries

reveals that there are numerous definitions for the word A fact. @ [266]

For instance, Webster = s Third New International Dictionary alone contains six definitions. [267] Although there are a variety of definitions

for the word A fact, @ it must be considered in the context

in which it appears. [268] We find it instructive that the Legislature

expressly distinguished factual basis (fact) from legal basis (law) in Section

5(a)(1). This distinction accounts for

the two necessary, but separate, parts of any subsequent claim: the factual

basis and the legal basis. With this in

mind, we find that the following definition of A fact @ from Black = s Law Dictionary accurately reflects the Legislature = s intent: A [a]n actual or alleged event or

circumstance, as distinguished from its legal effect, consequence, or

interpretation. @ [269]

Giving effect to the plain meaning of A fact @ does not lead to an absurd result

that the Legislature could not have intended.

It is the application of the law to a fact or set of facts that yields

the legal effect, consequence, or interpretation. And in some cases, the legal effect,

consequence, or interpretation creates a new rule of law. [270]

The actual event or circumstance

involved in Medellín = s case is that law enforcement authorities did not inform

Medellín of his right to contact the Mexican consulate after his arrest as required by Article 36(1)(b). This fact provided the factual basis for

Medellín = s challenge to his conviction and

sentence under the Vienna Convention on his first application for a writ of

habeas corpus. We disposed of this claim

on an independent state ground. [271] Agreeing with the trial court, we found that

the legal effect or consequence of Medellín = s Vienna Convention claim resulted in

the application of our state procedural default rule due to Medellín = s failure to object at trial. [272]

Medellín now argues that Avena

is a previously unavailable factual basis for purposes of Section 5(a)(1). We disagree.

For purposes of Section 5(a)(1), the Avena decision is properly

categorized as law, even though it is not binding on us. [273] The ICJ = s decision in Avena is not a

fact and, therefore, does not qualify as a previously unavailable factual basis

under Section 5(a)(1).

As to the President = s memorandum, Medellín asserts that A [a] judgment giving rise to new

claims issued after an applicant = s habeas application renders the

factual basis of the claim > unavailable = under Section 5(a). @ [274]

Thus, he urges, the President = s memorandum is a new A factual basis @ entitling him to review. We also disagree with this argument.

Medellín broadly claims that A whether considered as a factual or

legal basis . . . the President = s Determination was [not] available at the time of his

initial application for purposes of Section 5(a) @ without further explanation as to

how the memorandum constitutes a A factual @ basis. [275] Medellín = s arguments, however, address the

memorandum exclusively as a legal, not factual, basis; he argues that the

President = s memorandum A constitutes a binding federal rule of

decision. @

But even if Medellín had devised a complete argument that the President = s memorandum constitutes a A factual basis, @ we would still reach the same

conclusion. The President = s memorandum directs the state courts

to give effect to the ICJ Avena decision, and in so doing, the President

specifically relies on his authority under A the Constitution and the laws of the

United States of America . . . . @ [276]

This indicates that the President intended his memorandum to have the

effect of law. According to our earlier

analysis of A factual, @ we determined that the word means A of or involving @ [277] A [a]n actual or alleged event or

circumstance, as distinguished from its legal effect, consequence, or interpretation. @ [278]

Here, even though we have concluded that the President = s memorandum is not binding federal

law as argued by Medellín and the United States, we cannot say that the

memorandum falls into that definition. For purposes of Section 5(a)(1), like

the Avena decision, the President = s memorandum is properly classified

as a A legal basis, @ not a factual one.

2 . Legal

Basis

Because neither the Avena

decision nor the President = s memorandum constitute a A factual basis, @ we now consider whether either

qualifies as a previously unavailable A legal basis @ under Section 5(a)(1). Section 5(d) of Article 11.071 states:

a legal basis of a claim is

unavailable on or before a date described by Subsection (a)(1) if the legal

basis was not recognized by or could not have been reasonably formulated from a

final decision of the United States Supreme Court, a court of appeals of the

United States, or a court of appellate jurisdiction of this state on or before

that date. [279]

Although the Avena decision

and the Presidential memorandum were not available when Medellín filed his

first application, neither constitutes a new legal basis under the plain

language of Section 5(d). [280] First, neither has been recognized as providing

a right to review and reconsideration in A a final decision of the United States

Supreme Court, a court of appeals of the United States, or a court of appellate

jurisdiction of this state . . . . @ [281]

Indeed, as we noted earlier, the United States Supreme Court recently

reaffirmed its holding in Breard C that procedural default rules may bar

Vienna Convention claims. [282] In Sanchez-Llamas , the Supreme Court

concluded that Avena is entitled to only A > respectful consideration, = @ [283] and as such, that decision is not

binding on us. Likewise, because

we have concluded that the President has exceeded his authority by ordering

state courts to give effect to Avena , the President = s determination is

not binding federal law. Because Avena and the

President = s memorandum are not binding law,

neither of them can serve as a previously unavailable legal basis for purposes

of Section 5(a)(1).

IV. CONCLUSION

Having found that the ICJ Avena

decision and the Presidential memorandum do not constitute binding federal law

that preempt Section 5 under the Supremacy Clause of the United States

Constitution and that neither qualify as a previously unavailable factual or

legal basis under Section 5(a)(1), we dismiss Medellín = s subsequent application for a writ

of habeas corpus under Article 11.071, Section 5.

DATE DELIVERED: November 15, 2006

PUBLISH

[1]

Medellín v. State , No. AP-71,997, slip op. (Tex. Crim. App. Mar.

19, 1997) (not designated for publication).

[2] Ex parte Medellín , No. 675430-A (339th

Dist. Ct. Jan. 22, 2001).

[3]

Ex parte Medellín , No. WR-50,191-01 (Tex. Crim. App. Oct. 3,

2001) (not designated for publication).

[4]

Medellín v. Cockrell , Civ. No. H-01-4078 (S.D. Tex. Apr. 17,

2003).

[5]

Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.) , 2004 I.C.J. No. 128 (Judgment of

Mar. 31).

[6]

Id . & & 13 B 16, 49.

[7]

Id . & & 90, 106, 140.

[8]

Id . & & 138 B 40.

[9]

Id . & 121.

[10]

Id. & & 112 B 13, 153(9), (11).

[11]

Medellín v. Dretke , 371 F.3d 270, 273, 281 (5th Cir. 2004).

[12]

Id . at 280 (citing Breard v. Greene , 523 U.S. 371 (1998)).

[13]

Id . (citing United States v. Jimenez-Nava , 243 F.3d 192,

198 (5th Cir. 2001)).

[14]

Medellín v. Dretke , 543 U.S. 1032 (2004).

[15]

President = s

Memorandum for the Attorney General, Subject: Compliance with the Decision of

the International Court of Justice in Avena (Feb. 28, 2005), available at

http://www.whitehouse.gov/news/releases/

2005/02/20050228‑18.html [hereinafter Presidential Memorandum ].

[16]

Ex parte Medellín , Application No. AP-75,207.

[17] Medellín v. Dretke , 125 S. Ct. 2088, 2092

(2005) (per curiam).

[18]

Ex parte Medellín , No. AP-75,207 (per curiam order) (designated

for publication).

[19] Tex. Code Crim. Proc. art. 11.071 ' 5(a)(1) (Vernon 2003).

[20]

Id . ' 5(a)(2).

[21]

Id . ' 5(a)(3).

[22]

Ex parte Medellín , No. AP-75,207 (per curiam order) (designated

for publication).

[23]

Id .; see 28 C.F.R. _ 0.5 (2005).

[24]

Br. of Applicant at 26 B 27.

[25]

Id . at 52 B 53.

[26]

Br. of Respondent at 20 B 21.

[27]

Br. of United States as Amicus Curiae at 12.

[28]

Id . at 15.

[29]

United States v. Curtiss-Wright Export Corp. , 299 U.S. 304, 318

(1936) ( A operations of the nation in such

[foreign] territory must be governed by treaties, international understandings

and compacts, and the principles of international law. @ ); Santovincenzo v. Egan ,

284 U.S. 30, 40 (1931); B. Altman & Co. v. United States , 224 U.S.

583, 600 (1912); Head Money Cases ( Edye v. Robertson ), 112 U.S.

580, 598 (1884); Rocha v. State , 16 S.W.3d 1 , 15 B 16 (Tex. Crim. App. 2000).

[30]

Head Money Cases , 112 U.S. at 598 .

[31]

Id .; see also Whitney v. Robertson , 124 U.S. 190, 194

(1888) ( A If the country with which the

treaty is made is dissatisfied with the action of the legislative department,

it may present its complaint to the executive head of the government, and take

such other measures as it may deem essential for the protection of its

interests. The courts can afford no

redress. @ ); Baldwin v. Franks , 120

U.S. 678 , 702 B 03 (1887) (Field, J., dissenting)

(when a treaty between the United States and another county is considered as a

compact between nations, as opposed to the law of the land, a violation of the

treaty is a matter A to be settled by negotiation

between the executive departments of the two governments, each government being

at liberty to take such measures for redress as it may deem advisable. @ ); Foster v. Neilson , 27

U.S. 253, 307 (1829) ( A The judiciary is not that

department of the government, to which the assertion of its interests against

foreign powers is confided; and its duty commonly is to decide upon individual

rights, according to those principles which the political departments of the

nation have established. @ ).

[32]

U.S. Const. art. II, ' 2, cl. 2; see also B. Altman

& Co. , 224 U.S. at 600 ; De Lima v. Bidwell , 182 U.S. 1, 194

(1901).

[33]

U.S. Const. art. VI, cl.

2; see also Head Money Cases , 112 U.S. at 598 .

[34]

Whitney, 124 U.S. at 194 .

[35] Reid v. Covert , 354 U.S. 1, 17 (1957)

(plurality opinion); Geofroy v. Riggs , 133 U.S. 258, 267 (1890); Cherokee

Tobacco , 78 U.S. 616, 620 (1871) ( A a treaty cannot change the Constitution or be held valid if

it be in violation of that instrument. @ ); Rocha , 16 S.W.3d at n.12.

[36]

Whitney , 124 U.S. at 194 ; see also Sanchez-Llamas v. Oregon ,

126 S. Ct. 2680 (2006); Head Money Cases , 112 U.S. at 599 .

[37]

Whitney , 124 U.S. at 194 .

[38] Id .

[39]

United States v. Pink , 315 U.S. 203, 230 (1942).

[40] Id . at 230 B 31.

[41]

Head Money Cases , 112 U.S. at 598 .

[42]

Id . at 599.

[43]

Id .

[44]

Sorto v. State , 173 S.W.3d 469, 478 (Tex. Crim. App. 2005)

(quoting Restatement (Third) of Foreign

Relations Law of the United States ' 907 cmt. a , at 395 (1987) and citing Hamdan v.

Rumsfeld , 415 F.3d 33 , 38 B 40 (D.C. Cir. 2005), overruled on other grounds by 126

S. Ct. 2749 (2006)); see also Hinojosa v. State , 4 S.W.3d 240, 252 (Tex.

Crim. App. 1999) ( A Generally, individuals do not have

standing to bring suit based on an international treaty when sovereign nations

are not involved in the dispute. @ ).

[45]

Sorto, 173 S.W.3d at 478 n.31 (citing United States v.

Jimenez-Nava , 243 F.3d 192, 195 (5th Cir. 2001); United States v. Li ,

206 F.3d 56 , 67 (1st Cir. 2000) (Selya & Boudin, JJ., concurring); United

States ex. rel. Lujan v. Gengler , 510 F.2d 62, 67 (2d Cir. 1975); United

States v. Rosenthal , 793 F.2d 1214, 1232 (11th Cir. 1986)); see also

United States v. Emuegbunam , 268 F.3d 377, 389 (6th Cir. 2001) ( A courts presume that the rights

created by an international treaty belong to a state and that a private

individual cannot enforce them. @ ); United States ex rel. Saroop v. Garcia , 109 F.3d

165, 167 (3d Cir. 1997) ( A Because treaties are agreements

between nations, individuals ordinarily may not challenge treaty

interpretations in the absence of an express provision within the treaty or an

action brought by a signatory nation. @ ); Goldstar (Panama) S.A. v. United States , 967 F.2d

965, 968 (4th Cir. 1992) ( A International treaties are not presumed to create rights

that are privately enforceable. @ ); Matta-Ballesteros v. Henman , 896 F.2d 255, 259

(7th Cir. 1990) ( A It is well established that

individuals have no standing to challenge violations of international treaties

in the absence of a protest by the sovereigns involved. @ ).

But see Sanchez-Llamas , 126 S. Ct. at 2697 (Breyer, J.,

dissenting) (stating A no such presumption exists. @ ).

[46]

U.N. Charter introductory note, art. 110, para. 3, 59 Stat. 1031 ; see

also Basic Facts about the United Nations, The United Nations:

Organization, available at

http://www.un.org/aboutun/basicfacts/unorg.htm; Charles Patterson, The Oxford

50th Anniversary Book of the United Nations 7 B 21 (Oxford University Press)

(1995).

[47]

U.N. Charter art. 92.

[48]

Id .

[49]

Id . art. 93, para. 1.

[50]

Statute of the International Court of Justice arts. 2 B 64, June 26, 1945, 59 Stat. 1031

[hereinafter Statute of the ICJ].

[51]

Id . art. 36(1).

[52]

Id . art. 59.

[53]

U.N. Charter art. 94, para. 1.

[54]

Id . art. 94, para. 2.

[55]

Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77,

596 U.N.T.S. 261 (ratified by the United States on Nov. 24, 1969) [hereinafter

Vienna Convention].

[56]

Sorto , 173 S.W.3d at 477 ; see also Sanchez-Llamas , 126 S.

Ct. at 2674 ( A The Convention consists of 79

articles regulating various aspects of consular activities. @ ).

[57]

Vienna Convention.

[58]

Id .; United States v. Lombera-Camorlinga , 206 F.3d 882,

884 (9th Cir. 2000); see also Tenagne Tadesse, The Breard Aftermath:

Is the U.S. Listening? , 8 Sw. J. L.

& Trade Am. 423, 429 B 30 (2002) (discussing the history of the Vienna

Convention).

[59]

Sorto , 173 S.W.3d at 477 .

[60]

Vienna Convention, art. 36.

[61]

Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr.

18, 1961, Art. I, 21 U.S.T. 326, T.I.A.S. No. 6820 [hereinafter Optional

Protocol].

[62]

Presidential Memorandum ;

Medellín , 125 S. Ct. at 2101 (O = Connor J., dissenting); Letter from Alberto Gonzales, U.S.

Attorney General, to Greg Abbott, Texas Attorney General (Apr. 5, 2005); United States Department of

State, Daily Press Briefing, Mar. 10, 2005, Adam Ereli, Deputy Spokesman, available

at http://www.state.gov/r/pa/prs/dpb/2005/43225.htm (stating A in recognition of the optional

protocol and our international commitments, the President has determined that

the United States will comply with the judgment of the International Court of

Justice and that we will review -- our state courts will review -- the cases

that ICJ responded to. @ ).

[63]

Case Concerning the Vienna Convention on Consular Relations (Para. v.

U.S.) , Application of the Republic of Paraguay, Apr. 3, 1998; see also

Breard , 523 U.S. at 374 .

[64] Breard , 523 U.S. at 374 .

[65]

Id .

[66]

Id . at 375 B 76, 378.

[67]

Case Concerning the Vienna Convention on Consular Relations (Para. v.

U.S.) , Order of 10 November 1998 - Discontinuance.

[68]

2001 I.C.J. 104 (June 27, 2001).

[69]

2004 I.C.J. 128 (Mar. 31, 2004).

[70]

LaGrand , 2001 I.C.J. 104, & & 1, 10, 14.

[71]

Id . & & 1, 38.

[72]

LaGrand , 2001 I.C.J. 104, & & 77, 90 B 91, 125.

[73]

Id . & 128(7).

[74]

Avena , & & 106(1), 153(4).

[75]

Id . & & 106(2) B (3), 153(5) B (6).

[76]

Id . & & 106(4), 153(7).

[77]

Id . & 138.

[78]

Id . & & 138, 140 B 41.

[79]

Id . & 139.

[80] Presidential Memorandum .

[81]

126 S. Ct. 620 (2005).

[82]

126 S. Ct. 621 (2005).

[83]

Sanchez-Llamas , 126 S. Ct. at 2677 .

[84]

Id .

[85]

Id .

[86]

Id . at 2682.

[87]

Id . at 2687.

[88]

Id . at 2683, 2685 (quoting Breard , 523 U.S. at 375 ).

[89]

Id . at 2684.

[90]

Id .

[91]

Id .

[92]

Id .

[93]

Id .

[94]

Id . at 2685 (original emphasis).

[95]

Id. (quoting Kolovrat v. Oregon , 366 U.S. 187, 194

(1961)).

[96]

Id .

[97]

Id .

[98]

Id . (quoting Breard , 523 U.S. at 375 ).

[99]

Id .

[100]

Id .

[101]

Vienna Convention, art. 36(2).

[102]

Sanchez-Llama s, 126 S. Ct. at 2685 .

[103]

Id . at 2685 B 86.

[104]

Id . at 2686.

[105] Id .

[106]

Id .

[107] Id . (quoting Vienna Convention, art.

36(2)).

[108]

See generally 44 U.S.C. ' ' 1502, 1504, 1505(a)(1) (2000) (including A Presidential proclamations and

Executive orders, except those not having general applicability and legal

effect or effective only against Federal agencies or persons in their capacity

as officers, agents, or employees thereof . . . @ as documents that must be

published in the Federal Register); 1 C.F.R. _ 1.1 ( A Document having general

applicability and legal effect means any document issued under proper authority

prescribing a penalty or course of conduct, conferring a right, privilege,

authority, or immunity, or imposing an obligation, and relevant or applicable

to the general public, members of a class, or persons in a locality, as

distinguished from named individuals or organizations . . . @ ); 1 C.F.R. _ 5.2(a) (including A Presidential proclamations and

Executive orders in the numbered series, and each other document that the

President submits for publication or orders to be published @ among documents that are required

to be filed for inspection with the Federal Register and published in the

Federal Register).

[109]

Br. of Respondent at 41.

[110]

See Kevin M. Stack, The Statutory President , 90 Iowa L. Rev. 539 , 546 B 47 (2005) (observing that A there [are no] legal requirements

on the types of directives that the president must issue as an executive order,

as opposed to other headings, such as a proclamation, memorandum, directive, or

determination @ and stating that A the particular form in which a

directive is conveyed does not determine its legal effect, and may reflect

nothing more than a bureaucratic choice. @ ); Tara L. Branum, President or King: The Use and Abuse

of Executive Orders in Modern-Day America , 28 J. Legis. 1 , 6 B 7 (2002) (stating that A a congressional study has defined executive orders as > directives or actions by the

President = that have the > force and effect of law = when > founded on the authority of the

President derived from the Constitution or a statute = @ as well as noting that in addition

to orders, A [p]residents may also issue

proclamations, presidential signing statements, presidential memoranda, or

National Security Presidential Directives, among other types of presidential

directives @ and stating, A [i]n general, however, the

difference is typically one of form, not substance. @ ); see also Youngstown Sheet

& Tube Co. v. Sawyer , 343 U.S. 579, 583 (1952).

[111]

United States v. Belmont , 301 U.S. 324, 330 (1937) ; U.S. Const. amend. X; see also

Curtiss-Wright , 299 U.S. at 316 .

[112]

Curtiss-Wright , 299 U.S. at 315 B 16; see also Belmont , 301

U.S. at 330 .

[113]

Curtiss-Wright , 299 U.S. at 318 (quoting Burnet v. Brooks ,

288 U.S. 378, 396 (1933)); see also Pink , 315 U.S. at 233 ( A Power over external affairs is not

shared by the States; it is vested with the national government exclusively. @ ); Hines v. Davidowitz , 312

U.S. 52, 63 (1941) ( A The federal Government . . . is

entrusted with full and exclusive responsibility for the conduct of affairs

with foreign sovereignties. @ ).

[114]

Curtiss-Wright , 299 U.S. at 320 .

[115]

Id .

[116]

Am. Ins. Ass = n v. Garamendi , 539 U.S. 396, 415 (2003) ( A the President has authority to make

> executive agreements = with other countries, requiring no

ratification by the Senate or approval by Congress[.] @ ); Dames & Moore , 453

U.S. at 682 ( A prior cases of this Court have also

recognized that the President does have some measure of power to enter into

executive agreements without obtaining the advice and consent of the Senate. @ ); Belmont , 301 U.S. at 331 .

[117]

Garamendi , 539 U.S. at 416 ; Pink , 315 U.S. at 230 ( A A treaty is a > Law of the Land = under the supremacy clause (art.

VI, Cl. 2) of the Constitution. Such

international compacts and agreements as the Litvinov Assignment have a similar

dignity. @ ).

[118]

Garamendi , 539 U.S. at 419 (quoting Zschernig v. Miller ,

389 U.S. 429, 440 (1968)).

[119]

Youngstown Sheet & Tube Co. , 343 U.S. at 585 .

[120]

Id . at 635 B 38 (Jackson, J., concurring).

[121]

Id . at 635.

[122]

Id .

[123]

Id .

[124]

Id . at 637.

[125]

Id .

[126]

Id .

[127]

Id .

[128]

Id .

[129]

Id .

[130]

Id .

[131]

Id . at 638.

[132]

Presidential Memorandum .

[133]

Id . at 634; Dames & Moore , 453 U.S. at 661 ( A the decisions of the Court in this

area have been rare, episodic, and afford little precedential value for

subsequent cases. @ ).

[134]

Presidential Memorandum .

[135]

Sanchez-Llamas , 126 S. Ct. at 2684 (quoting Marbury v. Madison ,

5 U.S. 137, 177 (1803)).

[136]

Id .

[137]

301 U.S. 324 .

[138]

315 U.S. 203 .

[139]

453 U.S. 654 .

[140]

539 U.S. 396 .

[141]

301 U.S. at 325 B 26.

[142]

Id . at 326.

[143]

Id .

[144]

Id .; Pink , 315 U.S. at 222 B 23 (discussing its previous holding

regarding the Litvinov Assignment in Belmont ).

[145]

Belmont , 301 U.S. at 330 .

[146]

Id . at 327.

[147]

Id . at 330 B 31.

[148]

Id . at 331.

[149]

315 U.S. at 227 B 34.

[150]

Id . at 211.

[151]

Id . at 234.

[152]

Id . at 227.

[153]

Id . at 230.

[154]

Id .

[155]

Id . at 230 B 31.

[156]

Id . at 233.

[157]

453 U.S. at 662 B 63 (quoting Exec. Order No. 12170,

3 C.F.R. 457 (1980), note following 50 U.S.C. ' 1701 (1976 ed. Supp. III)).

[158]

Id . at 665.

[159]

Id .

[160]

Id .

[161]

Id . at 665 B 66 (quoting Exec. Order No. 12279,

46 Fed. Reg. 7919 (1981)).

[162]

Id . at 666 (quoting Exec. Order No. 12294, 46 Fed. Reg. 14111

(1981)).

[163] Id . at 666 B 67.

[164]

Id . at 667.

[165]

Id . at 668.

[166]

Id . at 674 (quoting Youngstown Sheet & Tube Co. , 343

U.S. at 637 (Jackson, J., concurring)).

[167]

Id . (citing Youngstown Sheet & Tube Co. , 343

U.S. at 636 B 37 (Jackson, J., concurring)).

[168]

Id . at 675.

[169] Id . at 677.

[170]

Id .

[171]

Id . at 678.

[172]

Id .

[173]

Id . (quoting Youngstown Sheet & Tube Co. , 343 U.S. at

637 (Jackson, J., concurring)).

[174]

Id . at 679 B 80.

[175] Id . at 680.

[176] Id . at 680 B 81.

[177]

Id . at 681.

[178]

Id . at 682.

[179]

Id . at 686.

[180]

Id . at 687 B 88.

[181]

539 U.S. at 405 .

[182]

Id .

[183]

Id .

[184]

Id . at 406.

[185]

Id . at 407.

[186]

Id . at 409.

[187]

Id . (quoting Cal. Ins.

Code Ann. ' 13804(a) (West Cum. Supp. 2003)).

[188] Id . at 411.

[189]

Id . at 411 B 12.

[190]

Id . at 412.

[191] Id . at 413.

[192]

Id . at 414 (quoting Youngstown Sheet & Tube Co. ,

343 U.S. at 610 B 11 (Frankfurter, J., concurring)).

[193]

Id . at 415.

[194]

Id . at 415 B 16.

[195]

Id . at 417 (discussing Zschernig , 389 U.S. 429 ).

[196]

389 U.S. at 430, 432, 436 .

[197] Garamendi , 539 U.S. at 417 (quoting Zschernig ,

389 U.S. at 432 ).

[198]

Id . at 418.

[199]

Id . (quoting Zschernig , 389 U.S. at 459 (Harlan, J.,

concurring)).

[200]

Id . at 419 B 20.

[201]

Id . at 420.

[202]

Id . at 421.

[203]

Id . at 422 B 23.

[204]

Id . at 425.

[205]

Id . at 426.

[206]

Id .

[207]

Id . at 423 B 24.

[208]

Id . at 424 (quoting Crosby v. Nat = l Foreign Trade Council , 530 U.S. 363, 377 (2000)).

[209]

Id . at 425 (quoting Crosby , 530 U.S. at 380 ).

[210] U.S. Const . art. II, ' 1, cl. 1.

[211]

Garamendi , 539 U.S. at 415 .

[212]

See Youngstown Sheet & Tube Co. , 343 U.S. at 610 B 11 (Frankfurter, J., concurring)

(stating that A a systematic, unbroken, executive

practice, long pursued to the knowledge of the Congress and never before

questioned, engaged in by Presidents who have also sworn to uphold the

Constitution, making as it were such exercise of power part of the structure of

our government, may be treated as a gloss on > executive power = vested in the President by ' 1 of Art. II. @ ).

[213]

Id. at 635 (Jackson, J., concurring); see also Dames &

Moore , 453 U.S. at 686 ( A Past practice does not, by itself, create power, but > long-continued practice, known to

and acquiesced in by Congress, would raise a presumption that the action had

been taken in pursuance of its consent . . . . = @ ) (quoting United States v.

Midwest Oil Co. , 236 U.S. 459, 474 (1915)).

[214]

Youngstown Sheet & Tube Co. , 343 U.S. at 637 (Jackson, J.,

concurring).

[215]

Garamendi , 539 U.S. at 415 .

[216]

Youngstown Sheet & Tube Co. , 343 U.S. at 637 (Jackson, J.,

concurring).

[217]

Id .

[218]

Id .

[219]

Br. of United States as Amicus Curiae , at 30 (quoting Garamendi ,

539 U.S. at 416 ).

[220]

Id .

[221]

U.S. Const . art. II, ' 3.

[222]

Br. of Applicant at 50.

[223]

Id . at 45.

[224]

Sanchez-Llamas , 126 S. Ct. at 2685 (quoting Breard , 523

U.S. at 375 ).

[225]

Id . at 2684 B 85.

[226]

Youngstown Sheet & Tube Co. , 343 U.S. at 587 .

[227]

Br. of Applicant at 48 (citing U.S.

Const . art. II, ' ' 2, cl. 2, 3).

[228]

Id .

[229]

Id . at 49 (citing 22 U.S.C. ' ' 1732, 4802(a)(1)(D)).

[230]

U.S. Const . art. II, ' 2, cl. 2.

[231]

U.S. Const . art. II, ' 3.

[232]

22 U.S.C. _ 1732 (2000).

[233]

22 U.S.C. ' 4802(a)(1)(D) (2000).

[234]

453 U.S. at 676 (internal citations omitted).

[235]

Id . at 678.

[236]

Id . at 677.

[237]

Id . at 678 B 79.

[238]

Id . at 677 B 82, 686.

[239]

Id . at 680.

[240]

22 U.S.C. ' 2651 (2000) ( A There shall be at the seat of

government an executive department to be known as the > Department of State = , and a Secretary of State, who

shall be the head thereof. @ ).

[241]

22 U.S.C. ' 4802(a)(1)(D).

[242]

Br. of United States as Amicus Curiae , at 20 B 21 (quoting Garamendi , 539

U.S. at 415 ).

[243]

Id . at 20.

[244]

Id . (quoting 22 U.S.C. ' 287(a), (b) (2000)).

[245]

22 U.S.C. ' 287(a), (b).

[246]

Curtiss-Wright Export Corp. , 299 U.S. at 320 .

[247]

Sanchez-Llamas , 126 S. Ct. at 2685 .

[248] Youngstown Sheet & Tube Co. , 343 U.S.

at 585 .

[249]

Tex. Code Crim. Proc . art.

11.071 ' 5(a)(1).

[250]

Tex. Code Crim. Proc . art.

11.071 ' 5(e).

[251] Boykin v. State , 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).

[252]

Id .

[253] Nguyen v. State , 1 S.W.3d 694, 696 (Tex.

Crim. App. 1999).

[254]

Boykin , 818 S.W.2d at 785 .

[255]

Id .

[256]

Id .

[257]

Id . at 785 B 86.

[258]

Tex. Code Crim. Proc . art.

3.01 (Vernon 2004).

[259] Tex. Gov = t Code ' ' 311.002, 311.011 (Vernon 2003).

[260]

Tex. Code Crim. Proc . art.

3.01.

[261] Tex. Gov = t Code ' 311.011(a).

[262]

Ex parte Rieck , 144 S.W.3d 510, 512 (Tex. Crim. App. 2004); Lane

v. State , 933 S.W.2d 504 , 515 n.12 (Tex. Crim. App. 1996) (citing Bingham

v. State , 913 S.W.2d 208 , 209 B 10 (Tex. Crim. App. 1995)) (reaffirming A that use of dictionary definitions

of words contained in the statutory language is part of the > plain meaning = analysis that an appellate court

initially conducts [under Boykin ] to determine whether or not the

statute in question is ambiguous. @ ).

[263]

Webster = s Third

New International Dictionary 813 (2002) .

[264]

A Dictionary of Modern American

Usage 2 84 (1998).

[265]

Id . at 284 B 85 (original emphasis).

[266] See Webster = s Third

New International Dictionary 813 (2002); The American Heritage College Dictionary 489

(3d ed. 2000); Black = s Law

Dictionary 610 (7th

ed. 1999) ; A Dictionary of Modern Legal

Usage 346 (2d ed. 1995); The

Random House Dictionary of the English Language 691 (2d ed. 1987); A Concise Dictionary of Law 144 (1983);

Jowitt = s

Dictionary of English Law 764 (2d ed. 1977); Ballentine = s Law

Dictionary 449 (3d ed.

1969).

[267]

Webster = s Third

New International Dictionary 813.

[268]

Tex. Gov = t Code ' 311.011; Lane , 933 S.W.2d

at 515 n.12.

[269]

Black = s Law

Dictionary 610.

[270]

See, e.g., Roper v. Simmons , 543 U.S. 551, 568 (2005) ( A A majority of States have rejected

the imposition of the death penalty on juvenile offenders under 18, and we now

hold this is required by the Eighth Amendment. @ ); Crawford v. Washington ,

541 U.S. 36, 68 (2004) ( A the Sixth Amendment demands what

the common law required: unavailability and a prior opportunity for

cross-examination. @ ); Atkins v. Virginia , 536

U.S. 304, 321 (2002) ( A Construing and applying the Eighth

Amendment in the light of our > evolving standards of decency, = we therefore conclude that such

punishment is excessive and that the Constitution > places a substantive restriction on

the State = s power to take the life = of a mentally retarded offender. @ ); Apprendi v. New Jersey ,

530 U.S. 466, 490 (2000) (holding that under the Fifth, Sixth and Fourteenth

Amendments, A [o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt. @ ).

[271]

Ex parte Medellín , No. WR-50,191-01 (Tex. Crim. App. Oct. 3,

2001) (not designated for publication).

[272]

Id .

[273]

Sanchez-Llamas , 126 S. Ct. at 2682 .

[274]

Br. of Applicant at 54.

[275]

Id.

[276]

Presidential Memorandum .

[277]

A Dictionary of Modern American

Usage 2 84 (1998).

[278]

Black = s Law

Dictionary 610.

[279]

Tex. Code Crim. Proc . art.

11.071 ' 5(d).

[280] Boykin , 818 S.W.2d at 785 .

[281]

Tex. Code Crim. Proc . art.

11.071 ' 5(d).

[282]

Sanchez-Llamas , 126 S. Ct. at 2687 .

[283]

Id . at 2683 (quoting Breard , 523 U.S. at 375 ).