Petitioners Brief — Medellin v. Texas

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nse FILED

? se PP C JUN 28 2007

No. 06-984 |

|_ SUPREME COURT, U.S.

IN THE

Supreme Court of the United States

Satie ete

José ERNESTO MEDELLIN,

Petitioner,

THE STATE OF TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

BRIEF FOR PETITIONER

DONALD FRANCIS DONOVAN

(Counsel of Record)

CARL MICARELLI

CATHERINE M. AMIRFAR

BRUCE W. KLAW

JILL VAN BERG

EMMA C. PRETE

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022-3916

(212) 909-6000

Attorneys for Petitioner

QUESTIONS PRESENTED

Did the President of the United States act within his

authority when he determined that the states must

comply with the United States’s treaty obligation to

give effect to the judgment of the International Court

of Justice in the Case Concerning Avena and Other

Mexican Nationals (Mex. v. U.S.), 2004 I1.C.J. 12

(Mar. 31, 2004) (No. 128), in the cases of the 51

nationals of Mexico named in the judgment?

. Are state courts bound by the Constitution to honor

the undisputed international obligation of the United

States, under treaties duly ratified by the President

with the advice and consent of the Senate, to give

effect to the Avena judgment in the cases that the

judgment addressed?

PARTIES

All parties to the proceedings below are named in the

caption of the case.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ...............-0+0005: i

EE Se en ee ee ii

, 8 fo Lo. .. |) errr iii

py OU Ge BP liyg, : yy: eee vi

i. cecepeeeeecndeeeweens ]

i eeegeneeeeseese l

CONSTITUTIONAL, TREATY AND

STATUTORY PROVISIONS INVOLVED .. |

STATEMENT OF THE CASE ...........--eeeeeee 2

A. The United Nations Charter and the

International Court of Justice ........... 2

B. The Vienna Convention on Consular

ee enemies 4

C. Mr. Medellin’s Conviction, Sentence,

and Initial Collateral Proceedings ...... 6

D. The Avena Case in the International

I . caccuenceeeute ees x

E. Proceedings in the Fifth Circuit and

PE EE cesvdeccvvccceveecoeceseecescues 9

The President’s Determination..........

This Court’s Dismissal of Certiorari ...

The Proceedings Below................+.

SUMMARY OF ARGUMENT ............-....5:.

ARGUBIENT. ..ccccccccvccccccsccccccescscessosseces

As a Matter of Both International

Law and United States Law, the

Avena Judgment Is Binding..............

A. The United States Is Bound by

Treaty to Comply with the

Avena Judgment. .........ccccccceces

B. Texas Is Bound by the

United States Constitution

to Comply with the Avena

PUGGIGGR. 0s cvcveveccscccesencesessnes

State Courts Have a Constitutional

Obligation to Apply the Avena

Judgment, and the President Properly

Took Action to Ensure That They

Faithfully Execute That Obligation.....

A. The Constitution Requires State

Courts to Enforce Treaties As

DU oO... cd cee eadee aman

PAGE

B. The President Has the Power

and Duty to Take Care That

the United States’s Treaty

Obligations Are Faithfully

DT cdigdaseedssecoscosescoceces 28

III. The President’s Determination That

the United States Would Abide by

Its Obligation to Comply with a

Treaty Obligation Is a Valid Exercise

of His Foreign Affairs Authority........ 34

A. The President Has Independent

Authority to Conduct the

Nation’s Foreign Affairs............ 34

B. The President’s Determination

Lies Squarely Within His

Authority to Conduct the

Nation’s Foreign Affairs............ 37

C. No Additional “Executive

Agreement” Is Needed.............. 41

IV. The Texas Procedural Bar Applied

by the Texas Court Is Preempted........ 43

EET cocccccccccccccccccececcccoccsescccce 45

TABLE OF AUTHORITIES

Federal Cases: PAGE

American Insurance Association vy. Garamendi,

SD Sin neta cneuueieananstees passim

Asakura v. Seattle, 265 U.S. 332 (1924) ......... 28, 40

Breard v. Greene, 523 U.S. 371 (1998)........... 22

Chicago & Southern Air Lines, Inc. v.

Waterman Steamship Corp..,

Be Gs SP CUED cencccccdedacescseconcsess 34

Chy Lung v. Freeman, 92 U.S. 275 (1876) ....... 25

Cooper v. Aaron, 358 U.S. 1 (1958) .............. 29

DaimlerChrysler Corp. v. Cuno,

Be als Ws Se Gn ccecocccconccesccesces: 31

Dames & Moore v. Regan, 453 U.S. 654

DP edbnddscntdensennsncusetbdnedseen 35, 36, 38, 39

Durand v. Hollins, 8 F. Cas. 111

Se UD erccccecscnccecccessocuses 40

El Al Israel Airlines v. Tseng, 525 U.S. 155

SE neidbsndcndndisbunssseeboenavsbesoeorsonss 28

Fairfax's Devisee v. Hunter's Lessee, 11 U.S.

gE Teena ne 28

First National City Bank v. Banco Nacional

de Cuba, 406 U.S. 759 (1972)................ 34

Fong Yue Ting v. United States, 149 U.S. 698

SE checdnéiiandsbethncticnueseneunuseteceenns 29, 30

Head Money Cases (Edye v. Robertson),

Be Gs BY I cecdenssnsccesssecesensiss 27, 28

Vii

PAGE

In re Neagle, 135 U.S. 1 (1890)........--.--+000e- 29

Kolovrat v. Oregon, 366 U.S. 187 (1961)........ 28

La Abra Silver Mining Co. v. United States,

175 U.S. 423 (1B99) ....cccccccccccccccccccees 20

Lawrence v. Florida, 127 S. Ct. 1079 (2007) .... 15

Medellin v. Dretke, 371 F.3d 270

(Sth Cir. 2004)..........ccccceceeeecencrceseees 10

Medellin v. Dretke, 544 U.S. 660 (2005) ......... 12, 32

Medellin v. Quarterman, No. 4:06cv3688

(S.D. Tex. May 25, 2007).........-.0-0eeeeees 15

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669

CRED ccccccccccesccccvecescsesecscosccceses 13,21, 22

Sanitary District v. United States,

266 U.S. 405 (1925S) ..ccccccccccccccccccccees 29, 33

Testa v. Katt, 330 U.S. 386 (1947)...........--45- 32

United States v. Belmont, 301 U.S. 324

SEDED cncccescecsencsccasecescencoocesensocs 37, 38, 42

United States v. Cooper, 25 F. Cas. 631

(C.C.D. Pa. 1800) .......ccccccccccccccccccess 30

United States v. Curtiss-Wright Exp. Corp.,

299 U.S. 304 (1936) ...c.ccccccccccccccccccees 34

United States v. Pink, 315 U.S. 203 (1942) ...... 37, 38

United States v. Rauscher, 119 U.S. 407

COTE ccccccccccncccescccccscsccesoseccsccoceess 27

United States v. Republic Steel Corp.,

362 U.S. 482 (1960) ............ cece eeee eee: 29

Vill

PAGE

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)...... 24

Wildenhus's Case, 120 U.S. 1 (1887)............. 28

Wolsey v. Chapman, 101 U.S. 755 (1880)........ 42

Worcester v. Georgia, 31 U.S. (6 Pet.) 515

Ia oi sicidied nica haieliea aateeeainnniiaaintiin 28

Younger v. Harris, 401 U.S. 37 (1971)........... 32

Youngstown Sheet & Tube Co. v. Sawyer,

Ee Gs I conndscecasdcceseseces 34, 35, 36

State Case:

Valdez v. State, 2002 OK CR 20, 46 P.3d 703

(Okla. Crim. App. 2002)...............000000 7

International Cases:

Case Concerning Avena and Other Mexican

Nationals (Mex. v. U.S.), 2004 1.C.J. 12

(Mar. 31, 2004) (No. 128) .......... 8,9, 31, 42, 43

Military and Paramilitary Activities

(Nicar. v. U.S.), 1984 1.C.J. 392

(Jurisdiction and Admissibility

SRRSTRGEE GE TEBE. SEP cccccccecocccccccsccccces 4

Military and Paramilitary Activities

(Nicar. v. U.S.), 1986 1.C.J. 14 (June 27).... 4

Treaties and Federal Statutes:

i, Si, ocndicedeeseneennbineishdasieueseel 39

LE! | SEE rere reer ee l

BO UBL... § ZSPN EMA) wcccccccccccccsesccccess 32

PAGE

Omnibus Diplomatic Security and

Antiterrorism Act of 1986,

§ 103(a)(1)(D), codified as

amended at 22 U.S.C. § 4802(a)(1)(D)...... 39

Optional Protocol to the Vienna Convention

on Consular Relations Concerning the

Compulsory Settlement of Disputes,

art. 1, opened for signature Apr. 24, 1963,

21 U.S.T. 77, 325, 596 U.N.T.S. 487 ........ 5

Statute of the International Court of Justice,

opened for signature June 26, 1945,

T.S. No. 993, 59 Stat. 1031 .......... 2, 3, 4, 19, 22

Treaty of Amity, Commerce and Navigation,

U.S.-Gr. Br., Nov. 19, 1794, 8 Stat. 116..... 30

Treaty of Peace, U.S.-Gr. Br., Sept. 1783,

Bee ES Gane cecccsccccccesscnsescccceseosscees 24

United Nations Charter, opened for

signature June 26, 1945, T.S. No. 993,

GP ER, TE cc cccccescosccccesccccccesedipses: 2,19

United Nations Participation Act of 1945,

§§ 2(a), 3, codified as amended at

22 U.S.C. §§ 287(a), 287a.......... 0. eee eee. 40

Vienna Convention on Consular Relations,

opened for signature Apr. 24 1963,

21 U.S.T. 77, 596 U.N.T.S. 261.............. 4

Constitutional Provisions:

RR rT 23

CS, CI. OR, TE. BG cccccoccccccvecccesescescces 34

PAGE

U.S. GURME. GER. TE, BA, GE. Deececccesscccccveses : 23

es SE, GIR. Ts BS cecccccccsccscccnnsseseceses 29

is Ge, GB EE, Dunnccccceeceesenscens 26

ey GT. GE, Fils Gs Beccccccccccccecccccess 24, 26, 28

State Statute:

Texas Code of Criminal Procedure,

BE, SEP Ge EE cececccecdseccccccescvesccsscecs 32, 44

Other Authorities:

115 CONG. REC. 30,997 (Oct. 22, 1969) ......... 6

CRS Report for Congress, Presidential

Directives: Background and Overview,

No. 98-611 GOV (updated April 23, 2007) . 43

THE DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION

OF THE FEDERAL CONSTITUTION

(Jonathan Elliot 2d ed. 1881)................. 27

Declaration by the President of the

United States of America

August 14, 1946 Respecting

Recognition by the United States

of America of the Compulsory

Jurisdiction of the International

Court of Justice, 61 Stat. 1218 (1947)....... 4

Walter Dellinger, U.S. Dep't of Justice, Ofc.

of Legal Counsel, Constitutional

Limitations on Federal Government

Participation in Binding Arbitration

Re rr ee 39

PAGE

Dep't of Justice, Ofc. of Legal Counsei,

Mem. for Counsel to President, Legal

Effectiveness of a Presidential Directive,

As Compared to an Executive Order

Cham, BD, FEBS occccccccccccccccesccccccccscses 42

THE FEDERALIST No. 22 (Alexander Hamilton)

(Clinton Rossiter ed., 1961).............. 24, 25, 27

THE FEDERALIST NO. 64 (John Jay)

(Clinton Rossiter ed., 1961)...............-5. 20

David M. Golove, Treaty-Making and the

Nation: The Historical Foundations

of the Nationalist Conception of the

Treaty Power, 98 MICH. L. REV. 1075

SE cccnscececcesscsscsccesonssssvcscccssense 24, 25

Mexican Boundary—Diversion of the

Rio Grande, 26 Op. Att’y Gen. 250

COBO cvcescccecccsccceccesesescsccucsesccoscene 29

Henry Pau! Monaghan, Article III and

Supranational Judicial Review,

107 COLUM. L. REv. 833 (2007)............. 39

Proclamation of Ratification of UN Charter

and ICJ Statute, 59 Stat. 1031 (1945) ....... 4

THE RECORDS OF THE FEDERAL

CONVENTION OF 1787 (James Madison)

(Max Farrand ed., rev. ed. 1966)............. 25

Remarks of President Taft to Members of

Am. Soc’y of Int’! Law (Apr. 29, 1910),

18 William H. Taft Papers, Series 9A ....... 31

xii

Report of the United State Delegation to

the United Nations Conference on

Consular Relations in Vienna, Austria,

March 4 to April 22, 1963 reprinted

in S. Exec. Doc. E, 91st Cong.

i nies sd peeuseenedeoeese

RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW (1987) ............-.0008:

RUTH B. RUSSELL, A HISTORY OF THE

UNITED NATIONS CHARTER:

THE ROLE OF THE UNITED STATES

SPSS ESSE CIGSSD ccccccvcccesccccsccccccess

Speech of John Marshall, 10 ANNALS

OF CONG. 596 (1800), reprinted in

1S UB. (CF WReas.) GMD. Fu cccccccccccccecce

Statement of Deputy Legal Adviser

J. Edward Lyerly, S. Exec. Rep.

FEO. FhoD CIGGS) cevcccvccccssvccsccccccccess

Edward R. Stettinius, Jr., Secretary of

State & Chairman of U.S. Delegation,

Charter of the United Nations: Report

to the President on the Results of the

San Francisco Conference (1945) ........

U.S. Dep’t of State, Daily Press Briefing,

BG Gi Mek ddawadncncacnncnencecnscndeecess

PAGE

6, 21

OPINION BELOW

The decision of the Court of Criminal Appeals of

Texas (Pet. App. la-79a), has been designated for pub-

lication in S.W.3d, but the volume and page numbers are

not yet available. It is available at 2006 WL 3302639

and 2006 Tex. Crim. App. LEXIS 2236.

JURISDICTION

The final judgment of the Texas Court of Criminal

Appeals, that state’s court of last resort in criminal mat-

ters, was issued on November 15, 2006. Petitioner filed

a timely petition for certiorari on Jaauary 16, 2007. This

Court granted certiorari on April 30, 2007. This Court

has jurisdiction pursuant to Article III, § 2, of the United

States Constitution, and 28 U.S.C. § 1257(a).

CONSTITUTIONAL, TREATY AND

STATUTORY PROVISIONS INVOLVED

This case involves the following provisions (Pet. App.

80a-85a): United States Constitution, art. II, § 1, sen-

tence 1; id. § 2, cls. 2-3; id. § 3; United States Consti-

tution, art. VI, cl. 2; Optional Protocol to the Vienna

Convention on Consular Relations Concerning the Com-

pulsory Settlement of Disputes, art. I, opened for sig-

nature Apr. 24, 1963, 21 U.S.T. 77, 325, 596 U.N.T.S.

487 (the “Optional Protocol”); United Nations Charter,

art. 94(1), T.S. No. 993, 59 Stat. 1031, 1051 (opened for

signature June 26, 1945) (the “UN Charter”); Statute of

the International Court of Justice, arts. 36(1), 59-60, T.S.

No. 993, 59 Stat. 1031, 1060, 1062-63 (opened for sig-

nature June 26, 1945) (the “ICJ Statute”); United

Nations Participation Act of 1945, §§ 2(a), 3, codified as

amended at 22 U.S.C. §§ 287(a), 287a; Rev. Stat. § 2001,

codified as amended at 22 U.S.C. § 1732; Omnibus

Diplomatic Security and Antiterrorism Act of 1986,

§ 103(a)(1)(D), codified as amended at 22 U.S.C.

§ 4802(a)(1)(D); and Texas Code of Criminal Procedure,

art. 11.071, § 5(a), (d)-(e).

STATEMENT OF THE CASE

Petitioner José Ernesto Medellin, a national of Mexico

who was sentenced to death in Texas in proceedings that

violated his right to consular notification under Article

36 of the Vienna Convention on Consular Relations,

seeks review and reconsideration of his conviction and

sentence in accordance with a binding judgment of the

International Court of Justice and a determination by the

President of the United States that this country will com-

ply with that judgment.

A. The United Nations Charter and the

International Court of Justice

The International Court of Justice is “the principal

judicial organ of the United Nations.” UN Charter, art.

92. By ratifying the UN Charter—a treaty to which over

190 nations, including the United States and Mexico,

have subscribed—a nation “undertakes to comply with

the decision of the International Court of Justice in any

case to which it is a party.” /d., art. 94(1) (Pet. App.

81a).

All parties to the UN Charter “are ipso facto parties to

the Statute of the International Court of Justice,” UN

Charter, art. 93(1), which forms “an integral part of the

Charter,” id., art. 92. Under the ICJ Statute, a judgment

in a case submitted to the ICJ is “final and without

appeal,” ICJ Statute, art. 60, but is binding only

“between the parties and in respect of that particular

case,” id., art 59 (Pet. App. 82a).

The United States proposed the ICJ Statute and led

the effort to create the Court. RUTH B. RUSSELL, A

HISTORY OF THE UNITED NATIONS CHARTER: THE

ROLE OF THE UNITED STATES 1940-1945, at 865

(1958). The United States saw the Court as a means to

pursue its longstanding objective to promote the rule of

law on the international level:

Throughout its history the United States has been a

leading advocate of the judicial settlement of inter-

national disputes. Great landmarks on the road to

the establishment of a really permanent international

court of justice were set by the United States... .

As the United States becomes a party to [the U.N.]

Charter, . . . it would naturally accept and use an

international court to apply international law and to

administer justice.

Edward R. Stettinius, Jr., Sec’y of State & Chairman of

U.S. Delegation, Charter of the United Nations: Report

to the President on the Results of the San Francisco

Conference 137-38 (1945). To date, the United States

has brought ten cases to the Court either as an applicant

or by special agreement with another state, and in

another eleven cases, the United States has been a

respondent. '

The ICJ’s jurisdiction in any particular case depends

entirely on the consent of the parties. ICJ Statute, art.

36(1) (Pet. App. 82a). A state may consent generally to

the ICJ's jurisdiction on any question arising under a

treaty or general international law, id., art. 36(2), or it

See International Court of Justice: Contentious Cases

Ordered by Countries Involved, at http://www.icj-cij.org/docket/

index.php?p1=3&p2=3&p3=1 (last visited June 27, 2007).

may consent, by a separate treaty or special arrangement,

to the ICJ’s jurisdiction over a category of cases or a spe-

cific dispute, id., art. 36(1). Hence, by ratifying the UN

Charter and ICJ Statute, the United States agreed to abide

by judgments in any case to which it was a party, but it

did not consent to jurisdiction in any particular case.’

The Senate approved the UN Charter, along with the

attached ICJ Statute, on July 28, 1945, and President Tru-

man signed it on August 8, 1945. In ratifying the UN

Charter, the United States made explicit that it was also

ratifying the ICJ Statute. See Proclamation of Ratification

of UN Charter and ICJ Statute, 59 Stat. 1031, 1031 (1945).

B. The Vienna Convention on Consular Relations

The Vienna Convention on Consular Relations, opened

for signature Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.

261 (“Vienna Convention”), provides a comprehensive

framework for the work of consular officials. Currently,

171 nations are parties to the Vienna Convention.’

2 Initially, the United States consented to the general juris-

diction of the ICJ, Declaration by the President of the United States

of America August 14, 1946 Respecting Recognition by the United

States of America of the Compulsory Jurisdiction of the International

Court of Justice, 61 Stat. 1218 (1947), but after commencement

of the case in Military and Paramilitary Activities (Nicar. v. U.S.),

1986 1.C.J. 14 (June 27), it withdrew that consent, Military and

Paramilitary Activities (Nicar. v. U.S.), 1984 1.C.J. 392, 398 (Juris-

diction and Admissibility Judgment of Nov. 26). It remains party to

dozens of agreements conferring jurisdiction on the Court over

specific categories of disputes. See Internationa] Court of Justice,

Jurisdiction: Treaties, at http://www.icj-cij.org/jurisdiction/ index.php?p1

=S5&p2=1&p3=4 (last visited June 27, 2007); U.S. Dept’ of State,

Treaties in Force 2006: Multilateral Treaties and Other Agreements,

at http://www.state.gov/s/I/treaty/treaties/2006/83254.htm (last vis-

ited June 27, 2007).

See Multilateral Treaties Deposited with the Secretary-Gen-

eral: Vienna Convention on Consular Relations, at http://untreaty.un.org/

Among other things, Article 36 of the Vienna Con-

vention requires the competent authorities of the detain-

ing state to notify “without delay” a detained foreign

national of his right to request assistance from the con-

sul of his own state and, if the national so requests, to

inform the consular post of that national’s arrest or

detention, also “without delay.” The rights afforded by

Article 36 are critical to United States consular officers’

efforts to protect American citizens living, working, and

traveling abroad. See Br. for U.S. as Amicus Curiae Sup-

porting Resp’t at 43, Medellin v. Dretke, 544 U.S. 660

(2005) (No. 04-5928); Br. for U.S. as Amicus Curiae on

Pet. for Cert. at 12. While the United States has vigor-

ously insisted on strict compliance with Article 36 when

Americans have been detained overseas, compliance in

the United States has been poor. See, e.g., Medellin v.

Dretke, 544 U.S. at 674 (O’Connor, J., dissenting) (not-

ing “vexing problem” of “individual States’ (often con-

fessed) noncompliance” with Article 36).

The Optional Protocol to the Vienna Convention pro-

vides that disputes “arising out of the interpretation

or application of the Convention shall lie within the

compulsory jurisdiction of the International Court of

Justice.” Optional Protocol, art. I. It constitutes a spe-

cific consent to jurisdiction under Article 36(1) of the

ICJ Statute. Of the 171 nations that have ratified the

Vienna Convention, 46 have also ratified the Optional

Protocol.‘

ENGLISH/bible/englishinternetbible/partl/chapterlII/treaty3 l.asp

(last visited June 26, 2007).

See Multilateral Treaties Deposited with the Secretary-Gen-

eral: Optional Protocol to the Vienna Convention on Consular Rela-

tions Concerning the Compulsory Settlement of Disputes, at http://

untreaty.un.org/ENGLISH/bible/englishinternetbible/partl/chap-

terllI/treaty33.asp (last visited June 26, 2007). On March 7, 2005, the

United States gave notice that it intended to withdraw from the

The United States played a leading role at the 1963

diplomatic conference that produced the Vienna Con-

vention and its Optional Protocol. See Report of the

United States Delegation to the United Nations Confer-

ence on Consular Relations in Vienna, Austria, March 4

to April 22, 1963, reprinted in S. Exec. Doc. E, 91st

Cong., at 59-61 (Ist Sess. 1969). Among other things,

the United States proposed the binding dispute settle-

ment provisions that became the Optional! Protocol and

successfully led the resistance to efforts by other States

to weaken or eliminate altogether those provisions. See

id. at 72-73.

The United States signed the Vienna Convention and

its Optional Protocol on April 24, 1963, and President

Nixon sent it to the Senate on May 8, 1969. The Senate

held hearings on October 7, 1969, and unanimously

approved the instruments on October 22, 1969. See 115

CONG. REC. 30,997 (Oct. 22, 1969).

C. Mr. Medellin’s Conviction, Sentence, and Initial

Collateral Proceedings

On June 29, 1993, law enforcement authorities

arrested Mr. Medellin, 18 years old at the time, in con-

nection with the murders of two young women in Hous-

ton, Texas. Mr. Medellin, a Mexican national, told the

arresting officers that he was born in Mexico and

informed Harris County Pretrial Services that he was not

a United States citizen. Nevertheless, Mr. Medellin was

not advised of his Article 36 right to seek assistance

from the Mexican consul, nor was the Mexican consulate

ever notified of his detention. Mr. Medellin was unaware

Optional Protocol. See US. Dep't of State, Daily Press Briefing,

Mar. 10, 2005, available at http://www.state.gov/r/pa/prs/dpb/2005/

43225. htm (last visited June 27, 2007).

of his right to seek consular assistance at any time either

before or during his capital trial.°

On September 16, 1994, Mr. Medellin was convicted

of capital murder and, on October 11, 1994, sentenced to

death. On March 16, 1997, the Texas Court of Criminal

Appeals affirmed Mr. Medellin’s conviction and sen-

tence in an unpublished order.

On April 29, 1997, Mexican consular authorities first

learned of Mr. Medelifn’s detention when he wrote to

them from death row, and they promptly began rendering

him assistance. On March 26, 1998, Mr. Medellin filed

a state application for a writ of habeas corpus arguing,

among other things, that his conviction and sentence

should be vacated as a remedy for the violation of his

Article 36 rights. The trial court denied relief and, by

unpublished order dated September 7, 2001, the Texas

Court of Criminal Appeals again affirmed.

On November 28, 2001, Mr. Medellin filed a petition

for a writ of habeas corpus in the United States District

Court for the Southern District of Texas, and on July 18,

2002, an amended petition. Mr. Medellin again raised,

among others, an Article 36 claim. On June 26, 2003, the

District Court denied his petition.

$ At the time Mr. Medellin was arrested and tried, Mexican

consular officers routinely assisted capital defendants by providing

funding for experts and investigators, gathering mitigating evidence,

acting as a liaison with Spanish-speaking family members, and most

importantly, ensuring that Mexican nationals were represented by

competent and experienced defense counsel. See Memorial of Mex-

ico at 11-38, Case Concerning Avena and Other Mexican Nationals

(Mex. v. U.S.), 2004 1.C.J. 12 (Mar. 31) (No. 128); see also Valdez v.

State. 2002 OK CR 20, 425, 46 P.3d 703, 710 (Okla. Crim. App.

2002) (finding that Mexico would have provided critical resources in

1989 capital murder trial of Mexican national).

D. The Avena Case in the International Court of

Justice

In early 2003, Mexico initiated proceedings against

the United States in the International Court of Justice in

the Case Concerning Avena and Other Mexican Nation-

als (Mex. v. U.S.), seeking a remedy for violations of the

Vienna Convention rights of individual Mexican nation-

als who were then under sentence of death in the United

States. Mexico invoked the United States’s consent to

jurisdiction in the Optional Protocol.

The United States fully participated in the Avena pro-

ceedings. After extensive briefing and a week-long hear-

ing, the ICJ rendered a judgment that expressly

adjudicated Mr. Medellin’s own rights and those of the

51 other Mexican nationals. Case Concerning Avena and

Other Mexican Nationals (Mex. v. U.S.), 2004 1.C.J. 12

(Mar. 31) (Pet. App. 86a-186a). Specifically, the ICJ

held that the United States had breached Article 36(1)(b)

of the Vienna Convention in the cases of 51 of the Mex-

ican nationals, including Mr. Medellin, by failing “to

inform detained Mexican nationals of their rights under

that paragraph” and “to notify the Mexican consular post

of the[ir] detention.” Avena, 9] 106(1)-(2), 153(4) (Pet.

App. 155a-156a, 183a). The ICJ held further that in 49

of those cases, including that of Mr. Medellin, the

United States had also violated its obligations under

Article 36(1)(a) “to enable Mexican consular officers to

communicate with and have access to their nationals, as

well as its obligation under paragraph 1|(c) of that Arti-

cle regarding the right of consular officers to visit their

detained nationals.” /d., ¥ 106(3), 153(5)-(6) (Pet. App.

156a, 1834-184a). Finally, the ICJ held that in 34 cases,

again including that of Mr. Medellin, the United States

had also violated its obligation under Article 36(1)(c)

“to enable Mexican consular officers to arrange for legal

representation of their nationals.” /d., 9] 106(4), 153(4),

153(7) (Pet. App. 156a, 183a, 184a).

As to remedies, the ICJ first denied Mexico’s request

for annulment of the convictions and sentences. /d.,

q 123 (Pet. App. 166a). However, recognizing that Arti-

cle 36(2) of the Convention requires the laws of the sig-

natory states to give “full effect” to the purposes of the

rights accorded by Article 36, the ICJ held that United

States courts must provide review and reconsideration of

the convictions and sentences of the 51 Mexican nation-

als as a remedy for the violations of Article 36(1) in

their cases. Jd., 99. 121-22, 153(9) (Pet. App. 165a,

185a). The ICJ specified that, first, the required review

and reconsideration must take place as part of the “judi-

cial process;” second, procedural default doctrines could

not bar the required review and reconsideration; third,

the review and reconsideration must take account of the

Article 36 violation on its own terms and not require that

it qualify also as a violation of some other procedural or

constitutional right; and finally, the forum in which the

review and reconsideration would occur must be capable

of “examin[ing] the facts, and in particular the prejudice

and its causes, taking account of the violation of the

rights set forth in the Convention.” /d., 99} 113-14, 122,

134, 138-39, 140 (Pet. App. 160a-161a, 165a, 170a-

171la, 173a-174a).

E. Proceedings in the Fifth Circuit and This Court

The Avena judgment was handed down while Mr.

Medellin’s application for a certificate of appealability

from the denial of federal habeas relief was pending

before the Fifth Circuit. Although the effect of the Avena

judgment had not been briefed or argued, the Fifth Cir-

cuit considered the judgment before following prior

Fifth Circuit precedent holding that Article 36 of the

Vienna Convention was not judicially enforceable.

Medellin v. Dretke, 371 F.3d 270 (Sth Cir. 2004). Mr.

Medellin petitioned for certiorari on the question of the

effect in courts in the United States of the adjudication

of his own rights in Avena, and this Court granted.

F. The President’s Determination

On February 28, 2005, after Mr. Medellin had sub-

mitted his opening brief in this Court, President George

W. Bush issued a signed, written determination that state

courts must provide the required review and reconsid-

eration to the 51 Mexican nationals named in the Avena

judgment, including Mr. Medellin, notwithstanding any

state procedural rules that might otherwise bar review of

their claims. The President declared:

I have determined, pursuant to the authority vested

in me as President by the Constitution and laws of

the United States, that the United States will dis-

charge its international obligations under the deci-

sion of the Internationa! 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.

Pet. App. 187a.

The President’s determination was attached as an

exhibit to the United States’s brief as amicus curiae

which was filed the same day in Mr. Medellin’s case. Br.

for U.S. as Amicus Curiae Supporting Resp’t at 8a,

Medellin v. Dretke. In that brief, the United States

explained that the President had determined that the

United States had a “paramount interest. . . in prompt

compliance” with the Avena judgment. /d. at 41. Specif-

ically, the President had determined that compliance

would “serve[ ] to protect the interests of United States

citizens abroad, promote[ ] the effective conduct of for-

eign relations, and underscore[{} the United States’s com-

mitment in the international community to the rule of

law.” Id. at 9. The United States stressed that “[c]onsular

assistance is a vital safeguard for Americans abroad, and

the government has determined that, unless the United

States fulfills its international obligation to achieve com-

pliance with the ICJ Avena decision, its ability to secure

such assistance could be adversely affected.” /d. at 41.

The United States explained that pursuant to the Pres-

ident’s determination, an individual Mexican national

named in the judgment “may file a petition in state court

seeking [the] review and reconsideration [ordered in

Avena], and the state courts are to recognize the Avena

decision.” Jd. at 42. In such a case, “a state court would

not be free to reexamine whether the ICJ correctly deter-

mined the facts or correctly interpreted the Vienna Con-

vention.” Jd. at 46. Finally, state procedural rules that

might otherwise prevent a state court from giving e‘fect

to the Avena judgment “must give way.” /d. at 43.

G. This Court’s Dismissal of Certiorari

In deference to the President’s determination directing

claims for review and reconsideration to the state courts,

Mr. Medellin filed a motion to stay his case in this

Court, requesting that the case be held in abeyance while

Mr. Medellin exhausted in state court his claims based

on Avena and the President’s determination—neither of

which existed at the time of his first state post-convic-

tion petition. In order to ensure compliance with any

applicable statute of limitations, Mr. Medellin filed the

contemplated petition for a writ of habeas corpus in the

Texas Court of Criminal Appeals while his case was

pending before this Court, and he asked the Texas court

to hold his petition in abeyance until this Court ruled on

his motion for a Stay.

On May 23, 2005, this Court dismissed the writ of cer-

tiorari as improvidently granted, “[ijn light of the pos-

sibility that the Texas courts [would] provide Medellin

with the review he seeks pursuant to the Avena judgment

and the President’s memorandum.” /fedellin v. Dretke,

544 U.S. 660 (2005) (per curiam). The Court noted that

it could later review the questions presented, “unen-

cumbered by the issues that arise from the procedural

posture” of a federal habeas case, following the resolu-

tion of Mr. Medellin’s subsequent state habeas action.

Id. at 664 n.1; see also id. at 669 (Ginsburg, J., concur-

ring); id. at 694 (Breyer, J., dissenting).

H. The Proceedings Below

Following this Court’s dismissal, the Texas Court of

Criminal Appeals set Mr. Medellin’s habeas petition for

briefing and oral argument on whether it satisfied the

requirements of Article 11.071, § 5, of the Texas Code of

Criminal Procedure (“Section 5”). Ex parte Medellin,

206 S.W.3d 584 (Tex. Crim. App. 2005) (order directing

briefing). Section 5 is the Texas provision governing

subsequent applications by petitioners who have previ-

ously sought post-conviction relief.

In both his petition and his brief, Mr. Medellin argued

that the Avena judgment and the President's determina-

tion to comply with it constituted binding federal law

that, by virtue of the Supremacy Clause of the United

States Constitution, preempted any inconsistent provi-

sions of Texas law, including Section 5. Mr. Medellin

also argued that, in any case, he satisfied the require-

ments of Texas law. As amicus curiae, the United States

urged the Texas court to grant Mr. Medellin the review

and reconsideration he sought, on the ground that Pres-

ident’s determination constituted preemptive federal law.

Br. for U.S. as Amicus Curiae at 49-50, Ex parte Medel-

lin, No. AP-75,207, 2006 WL 3302639 (Tex. Crim. App.

Nov. 15, 2096).

On September 14, 2005, the Court of Criminal

Appeals heard oral argument from Mr. Medellin, the

State of Texas, and the United States. On November 15,

2006, that Court dismissed Mr. Medellin’s application,

holding that he did not satisfy Section 5 and that neither

Avena nor the President’s determination preempted that

provision. Pet. App. la-79a.

With respect to the Avena judgment, Judge Keasler

wrote on behalf of a majority to hold that Mr. Medellin’s

claim was foreclosed by Sanchez-Llamas v. Oregon, 126

S. Ct. 2669 (2006), which, the Texas court observed, had

interpreted the Vienna Convention in a manner incon-

sistent with the Avena judgment. Pet. App. 20a. “In this

case,” the court concluded, “we are bound by the

Supreme Court's determination that ICJ decisions are not

binding on United States courts.” Jd. at 24a. The Texas

court did not address the question of whether the Avena

judgment, as Mr. Medellin had argued, would still be

binding in the cases of individuals like him whose rights

had been expressly adjudicated by the ICJ (unlike the

petitioners in Sanchez-Llamas) regardless of whether

United States courts would reach the same interpreta-

tion.®

With respect to the President's determination, the

Texas court was divided, with no single rationale com-

manding a majority. Judge Keasler, joined by Judges

Meyers, Price, and Hervey, found that the President had

“exceeded his inherent constitutional foreign affairs

authority by directing state courts to comply with

6 See Subsequent Application for Post-Conviction Writ of

Habeas Corpus, at 20-23. Ex parte Medellin; Br. of Applicant at 36.

41-43, 51, Ex parte Medellin.

Avena.” Id. at 45a. Specifically, Judge Keasler concluded

that “the President has exceeded his constitutional

authority by intruding into the independent powers of

the judiciary.” The President, she continued, “cannot

dictate to the judiciary what law to apply or how to

interpret the applicable law.” Jd. at 30a.

Judge Keasler then considered the President’s foreign

affairs authority under Article II]. While acknowledging

the President’s authority to “settle international con-

troversies[,] comply with treaty obligations[, and] nego-

tiate and enter into an executive agreement to settle a

dispute with a foreign nation,” she reasoned that because

the President’s determination was not supported by an

executive agreement with Mexico, he had exceeded that

authority. Jd. at 4Sa-47a. She also held insufficient to

justify the President’s determination his duty under Arti-

cie II, § 3, faithfully to execute the laws, his statutory

duty to protect American citizens abroad, and his statu-

tory authorization to represent the United States before

the United Nations. /d. at 47a-55a.

Presiding Judge Keller delivered an opinion concur-

ring in the judgment, stating that the President's

“unprecedented, unnecessary, and intrusive exercise of

power over the Texas court system cannot be supported

by the foreign policy authority conferred on him by the

United States Constitution,” id. at 71a, and suggesting

that, at a minimum, a new treaty would be required to

give effect to the Avena judgment, id. at 68a-69a. Judge

Cochran, writing for herself and Judges Johnson and

Holcomb, found that the President’s determination was

without effect because it was not written in a “manner

prescribed for Presidential Proclamations or Executive

Orders,” but rather appeared to be “written in a private

memo style.” Jd. at 78a-79a. Judge Womack concurred

in the result without opinion. /d. at 64a.

Having found that neither the President’s determina-

tion nor the Avena judgment constitutes binding federal

law, the Court of Criminal Appeals concluded that it

could not preempt Texas's Section 5. The court then

went on to interpret that provision to bar Mr. Medellin’s

application on grounds of procedural default, and on that

basis, dismissed it. Pet. App. 63a-64a.’

Mr. Medellin petitioned for certiorari, and on April

30, 2007, this Court granted. Medellin v. Texas, 127 S.

Ct. 2129 (2007).

SUMMARY OF ARGUMENT

The President of the United States has acted to give

effect to the Nation’s obligation, under duly ratified

treaties, to abide by the Avena judgment in the cases of

the 51 Mexican nationals named in the judgment. In

making that determination, the President entered into no

new international agreements, prescribed no new rules,

established no new procedures, and undertook no new

obligations. Instead, he merely confirmed that the United

States would comply with international commitments

already made by the constitutionally designated political

actors, and would do so through the post-conviction

review procedures already provided by state law. No

more modest exercise of his foreign affairs authority, nor

any with clearer authorization from the appropriate

Following the Texas court's decision, in order to ensure that

his rights were preserved under any applicable statute of limitations.

Mr. Medellin filed a habeas corpus petition in the United States Dis-

trict Court for the Southern District of Texas. See Lawrence v.

Florida, 127 S. Ct. 1079 (2007) (filing of certiorari petition to review

state-court decision does not toll time limit for federal habeas). At the

same time, Mr. Medellin applied for a stay pending disposition of this

case, which the District Court granted. Medellin v. Quarterman, No.

4:06cv3688 (S.D. Tex. May 25, 2007) (order).

political branches, can be imagined. The Texas Court of

Criminal Appeals, in suggesting inat the President had

stepped over the bounds of executive authority and into

the realm of lawmaking, misunderstood the nature of the

President’s determination and the scope of federal for-

eign affairs authority, as well as the extent of its own

obligation to give effect to treaty obligations as federal

law.

The United States agreed to comply with the ICJ’s

decisions, in cases to which the United States was a

party, by three treaties ratified by the President with the

advice and consent of the Senate: the United Nations

Charter, the Statute of the International Court of Justice,

and the Optional Protocol to the Vienna Convention on

Consular Relations. None of the parties with a direct

interest in this case—the United States, Texas, Mexico

and Mr. Medellin—disputes that the United States has an

international treaty obligation to give effect to the Avena

judgment in the cases of the 51 individual Mexican

nationals whose cases the ICJ adjudicated in Avena.

Although this Court has held that the ICJ’s reasoning has

no binding precedential effect in future cases, it is

undisputed that, by treaty, its judgments are binding in

the particular cases they resolve. The Supremacy Clause

in Article VI of the United States Constitution incorpo-

rates this undisputed treaty obligation into our domestic

law by making treaties the “supreme Law of the Land”

on a par with acts of Congress.

The Supremacy Clause, together with Article III, also

makes explicit that state and federal courts are to enforce

treaties as law in cases within their respective jurisdic-

tions. Thus, this Court has consistently held that where

a treaty provides a rule by which the rights of the liti-

gants may be determined, courts must resort to the treaty

for the rule of decision in the same manner as they

would resort to an act of Congress. The review and

reconsideration ordered by Avena is just such a rule, as

it is susceptible of enforcement only by judicial pro-

cesses.

In addition, the Constitution places with the President

the authority to “take Care that the Laws be faithfully

executed.” Both historical practice and this Court’s deci-

sions make clear that this authority affords the President

discretion to determine the means of enforcement of

statutes and treaties to the extent not specified by

Congress or the treaty, and to take such other steps as

may be necessary to ensure that the powers that the Con-

stitution gives to the federal government can be carried

into effect. Here, the President has confirmed that the

Avena judgment must be given effect in state courts. He

has thereby eliminated any possible objection that fur-

ther federal action might be necessary before the Avena

judgment would become enforceable in the domestic

courts, as well as any possible concern that state courts’

compliance with their obligation to enforce treaties

might interfere with federal conduct of the Nation’s for-

eign affairs.

The Constitution also confers on the President inde-

pendent authority to formulate and execute the Nation's

foreign policy. That authority is at its zenith where the

President acts in accordance with an act of Congress—

or, as here, with a treaty ratified with supermajority con-

sent of the Senate, which by the Constitution is federal

law on a par with an act of Congress. Exercising his for-

eign affairs authority, the President has determined that

“expeditious compliance” with the Avena judgment is in

the “paramount interest” of the United States. As the

United States has explained, by ordering compliance, the

President pursued two critical objectives: the need for

the United States to resolve a dispute with a foreign gov-

ernment and fulfill its international obligations, and the

need to preserve the United States’s ability to protect

Americans abroad.

The President’s determination constitutes a quintessen-

tial foreign policy judgment that lies at the core of his

foreign relations authority. The President has done noth-

ing more than determine that the United States will do

what the elected representatives of the American people,

by the treatymaking processes prescribed by the Con-

stitution, have already promised: to abide by a judgment

of the ICJ in a case to which the United States was a

party. Congress also has confirmed by statute the power

of the President to act in this sphere. But in any event,

this Court has repeatedly recognized that the President

has authority to resolve disputes with foreign powers

even without the participation of the Senate or an act of

Congress. The authority exercised here, to give effect to

the result of a dispute resolution mechanism established

by duly ratified treaty, is far more modest.

The decision of the Texas Court of Criminal Appeals

rested on its assumption that an “executive agreement”

was needed to preempt state law. This misses the point

entirely. The international agreement that the Texas court

believed was necessary already exists, in the ratified

treaties that obligate the United States to abide by judg-

ments of the ICJ in cases to wnich it was a party. The con-

clusion of an additional executive agreement would not

perform any useful function: Mexico has made clear that

it seeks compliance with the Avena judgment, and the

United States has made clear that it intends to comply.

The treaty obligation to abide by the Avena judgment

and the President’s determination that the United States

will do so preempt any contrary state law. The Avena

judgment entitles Mr. Medellin to review and reconsid-

eration, which must fully examine the violation of his

consular notification rights and its effect on his con-

viction and sentence. Invoking a Texas procedural

default statute, the Texas court denied him the required

review and reconsideration. Because, in the circum-

stances of this case, application of this provision of state

law directly conflicts with the President’s exercise of his

constitutional authority and with the treaty obligation to

comply with the Avena judgment, the Texas court erred

on a matter of federal law.

This Court should ensure that the United States keeps

faith with its treaty partners by holding that Mr. Medel-

lin is entitled to the review and reconsideration that the

ICJ ordered.

ARGUMENT

I. As a Matter of Both International Law and

United States Law, the Avena Judgment Is

Binding.

A. The United States Is Bound by Treaty to

Comply with the Avena Judgment.

When it ratified the United Nations Charter, the

United States “undert[ook] to comply with the decision

of the International Court of Justice in any case to which

it is a party.” UN Charter, art. 94(1). At the same time,

by ratifying the ICJ Statute, the United States agreed

that a decision of the ICJ in a case to which the United

States was a party would have “binding force...

between the parties and in respect of that particular

case” and be “final and without appeal.” ICJ Statute,

arts. 59-60. Even wii!) ‘Se treaty commitment

reflected in the UN C) eee ICJ Statute, the United

States would still have a treaty obligation to comply

with any judgment rendered by the ICJ by virtue of the

jurisdiction conferred by the Optional Protocol, as an

agreement between two nations to submit a dispute to an

international body for decision implies an agreement to

abide by the result. La Abra Silver Mining Co. v. United

States, 175 U.S. 423, 463 (1899).

When a nation enters into a treaty, it undertakes an

international obligation that binds all of its organs (exec-

utive, legislative and judicial) and all its constituent

jurisdictions (state and federal). See, e.g., RESTATEMENT

(THIRD) OF FOREIGN RELATIONS LAW § 321 cmt. b

(1987). Hence, by binding itself to comply with a judg-

ment of the ICJ in a case to which it was a party, the

United States bound all the states, including Texas, and

all its judicial organs, including the Texas courts.

“[A] treaty is only another name for a bargain.” THE

FEDERALIST NO. 64, at 394 (John Jay) (Clinton Rossiter

ed., 1961). Consistent with the basic legal principles

underlying all contracts, the parties’ consent invests the

treaty with binding force. RESTATEMENT, supra,

§ 312(1). Making decisions about their own interests,

nations accept binding treaty obligations so that they

may obtain reciprocal rights or other valuable commit-

ments from their treaty partners. See, e.g., THE FEDER-

ALIST NO. 64, supra, at 394 (“[I]t would be impossible

to find a nation who would make any bargain with us,

which should be binding on them absolutely, but on us

only so long and so far as we may think proper to be

bound by it.”) (emphasis in original). Thus, the obliga-

tion to perform treaty obligations—the rule of pacta

sunt servanda—“lies at the core of the law of interna-

tional agreements and is perhaps the most important

principle of international law.” RESTATEMENT, supra,

§ 321 cmt. a.

At the time of the filing of Avena and the rendering of

the judgment, the United States was a party to the

Optional Protocol.* Hence, by virtue of that Protocol, the

UN Charter, and the [CJ Statute, it was under an obli-

gation to comply with that judgment. None of the parties

with a direct interest in this case—the United States,

Texas, Mexico, and Mr. Medellfn—disputes that obli-

gation.”

The Texas court’s apparent conclusion that in

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006), this

Court directed courts in the United States to breach that

obligation is plainly mistaken. In Sanchez-Llamas, the

issue of whether Article 36 of the Vienna Convention

preempts procedural default rules was raised by Mario

Bustillo, a national of Honduras, whose case was not

before the ICJ in Avena. See Sanchez-Llamas, 126 S. Ct.

at 2676, 2682-87. The other petitioner, Moises Sanchez-

Llamas, though a Mexican national, was not one of the

51 expressly named in the Avena judgment. This Court

observed that “[t]he ICJ’s decisions have ‘no binding

force except between the parties and in respect of that

particular case.’ " Jd. at 2684 (quoting ICJ Statute, art.

59) (emphasis in original). The Court concluded that

since the ICJ’s interpretations are “not binding precedent

8 In withdrawing from the Optional Protocol, the United States

made clear that it continues to be bound by the Vienna Convention

itself and that its withdrawal from the Optional Protocol would apply

only to future cases and have no effect on this case or the obligation

to comply with the Avena judgment. See U.S. Dep't. of State, Daily

Press Briefing, Mar. 10, 2005, available at hitp://www.state.gov/r/

pa/prs/dpb/2005/43225.htm (last visited June 27, 2007).

9 See. e.g.. Br. for U.S. as Amicus Curiae at 2}, Ex parte

Medellin (acknowledging international obligation to comply with

Avena decision); Br. Amicus Curiae of United Mexican States in

Supp. of Medellin at 28-29, Ex parte Medellin (calling on United

States to comply with obligation to abide by Avena decision); Respon-

dent's Br. at 34, Medellin v. Dretke (acknowledging “obligation to

respect the ICJ's judgments”).

even as to the IC]J itself,” they are not binding precedent

in courts of the United States. Jd. Accordingly, the Court

proceeded to interpret Article 36 of the Vienna Con-

vention itself, giving “only. . . ‘respectful considera-

tion’ ” but not binding precedential effect to the ICJ’s

interpretation. /d. at 2685.

Here, by contrast, the issue is not the effect of the

ICJ’s interpretation as a precedent, but the effect of the

ICJ’s decision as a judgment. Unlike the petitioners in

Sanchez-Llamas, Mr. Medellin is a national of Mexico

whose case was specifically adjudicated in Avena, and

the United States is undisputedly bound “in respect of

{his} particular case.” ICJ Statute, art. 59. Thus, the

interpretation of Article 36 of the Vienna Convention—

regarding which the ICJ and this Court came to differing

conclusions—is simply not an issue in this case. Instead,

the issue is the enforceability of a valid final judgment

that is binding on the United States by treaty. Indeed, the

United States takes the position that the Avena judgment

must be enforced in this case even while disagreeing

with its interpretation of the Vienna Convention. See,

e.g., Br. for U.S. as Amicus Curiae on Pet. for Cert.

at 12.'°

10 Similarly, in Breard v. Greene, 523 U.S. 371 (1998), this

Court did not address the effect of an ICJ judgment. At the time of the

Breard decision, the ICJ had not adjudicated the merits of Mr.

Breard's claim, but had only indicated provisional measures that the

United States stay Mr. Breard’s execution until the ICJ could consider

his case. The United States urged the Court to deny relief in Breard,

arguing that, by its terms, the order was not mandatory, and advising

the Court that in any event, under the terms of the UN Charter and IC]

Statute, indications of provisional measures by the ICJ were not bind-

ing. See Brief for U.S. as Amicus Curiae, at 49-50, Breard v. Greene,

523 U.S. 371 (1998) (No. 97-1390). Thus, this Court proceeded to

address not the effect of an IC) judgment, but only whether the

Vienna Convention itself required relief as an original matter. See

Breard, 523 U.S. at 375-76; see also Sanchez-Liamas, 126 S. Ct. at

B. Texas Is Bound by the United States Consti-

tution to Comply with the Avena Judgment.

To enable the United States to negotiate treaties with

foreign powers as a single nation, the Constitution places

the treatymaking power squarely in the hands of the fed-

eral government by including it among the Article II

powers of the executive branch. U.S. CONST. art. II, § 2,

cl. 2. The Constitution makes this power exclusive to the

federal government by expressly withdrawing from the

states the power independently to make treaties or oth-

erwise conduct foreign affairs. U.S. CONST. art. I, § 10.

The Constitution also places the treatymaking power

squarely in the hands of the political branches by pro-

viding that the President “shall have Power, with the

Advice and Consent of the Senate, to make Treaties, pro-

vided two thirds of the Senators present concur.” U.S.

CoNnsT. art. II, § 2, cl. 2. The requirement of senatorial

consent by supermajority vote ensures that the United

States will enter into treaties only with the strong sup-

port of the elected representatives of the American peo-

ple.

Once a treaty is ratified in accordance with the Con-

stitution, ‘he Supremacy Clause gives it the status of

supreme federal law, preempting the laws of the indi-

vidual States in the same manner as acts of Congress and

the Constitution itself:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all/

Treaties made, or which shall be made, under the

2667. Here, by contrast, the ICJ has issued a final decision in the case

of Mr. Medellin and the other Mexican nationals covered by the Avena

judgment. and the United States has recognized that that judgment is

binding in the particular cases that it adjudicated.

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.

U.S. CONST. art. VI, cl. 2 (emphasis ad ed). In other

words, the Constitution makes explicit that treaties bind

the Nation as a whole and are not left to the possibly

inconsistent policies of the individual states. “A treaty

cannot be the supreme law of the land, that is of all the

United States, if any act of a State Legislature can stand

in its way.” Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236

(1796) (opinion of Chase, J.).

The inclusion of treaties within the Supremacy Clause

addressed a serious problem under the Articles of Con-

federation. In the early years of its independence, the

United States had concluded treaties with France and

Great Britain granting certain privileges and immuni-

ties—both civil and criminal—to nationals or former

nationals of those nations. For example, the 1783 peace

treaty with Great Britain prohibited prosecutions and

confiscations of property on grounds of having aided

Britain during the Revolutionary War, and required the

release of individuals then being detained on such

charges. See Treaty of Peace, U.S.-Gr. Br., art. 6, Sept.

3, 1783, 12 Bevans 8.

State legislatures adopted laws contrary to the treaties,

however, and with limited exceptions, local officials and

judges applied those state laws in disregard of the

United States’s treaty obligations." As a result, foreign

" See generally David M. Golove, Treaty-Making and the

Nation: The Historical Foundations of the Nationalist Conception of

the Treaty Power, 98 MICH. L. REv. 1075, 1102-33 (2000). See also,

¢.g., THE FEDERALIST NO. 22, supra, at 183 (“The treaties of the

United States under the present [Articles of Confederation) are liable

to the infractions of thirteen different legislatures, and as many dif-

powers began to doubt the wisdom of concluding further

treaties with the United States, and fears arose that the

states’ noncompliance with the Nation’s treaty obliga-

tions would lead foreign powers to resort to war against

the United States.'* As Alexander Hamilton remarked:

The faith, the reputation, the peace of the whole

Union are thus continually at the mercy of the prej-

udices, the passions, and the interests of every

member of which it is composed. Is it possible that

foreign nations can either respect or confide in such

a government? Is it possible that the people of

America will longer consent to trust their honor,

their happiness, their safety, on so precarious a

foundation?

THE FEDERALIST NO. 22, at 183 (Alexander Hamilton)

(Clinton Rossiter ed., 1961)."°

By making treaties part of the “supreme Law of the

Land,” binding on all constituent organs and political

subdivisions of the United States, the Framers ensured

that the legal effect of treaties under United States law

would correspond to their legal effect under international

ferent courts of final jurisdiction, acting under the authority of those

legislatures.”); 1 THE RECORDS OF THE FEDERAL CONVENTION OF

1787, at 316 (James Madison) (Max Farrand ed., rev. ed. 1966) (“The

tendency of the States to. . . violations [of the law of nations and of

treaties] has been manifested in sundry instances.”).

12 See, e.g., Golove, supra note 11, at 1116, 1128-29.

1S See, also, e.g., 1 THE RECORDS OF THE FEDERAL CON-

VENTION OF 1787. supra note 11, at 316 (James Madison) (“A rupture

with other powers is among the greatest of national calamities. It

ought therefore to be effectually provided that no part of a nation shall

have it in its power to bring them on the whole.”): cf. Chy Lung v.

Freeman, 92 U.S. 275, 278-80 (1876) (if California “should get into

a difficulty which would lead to war, or to suspension of intercourse,

would California alone suffer, or all the Union?”).

law. They thereby ensured that the United States, as a

single nation, would be able to act effectively in inter-

national affairs.

II. State Courts Have a Constitutional Obligation to

Apply the Avena Judgment, and the President

Properly Took Action to Ensure That They Faith-

fully Execute That Obligation.

A. The Constitution Requires State Courts to

Enforce Treaties As Federal Law.

By the Supremacy Clause, the Framers did not simply

make “all Treaties made, or which shall be made, under

the Authority of the United States,” a species of supreme

federal law. U.S. CONST. art. VI, cl. 2. They also expressly

commanded that “the Judges in every State shall be

bound” by that species of federal law, “any Thing in the

Constitution or laws of any State to the Contrary notwith-

standing,” just as they are bound by “[t]his Constitution,

and the Laws of the United States” enacted by Congress.

Id. By parallel language in Article III, the Framers placed

cases arising under treaties within the federal judicial

power: “The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made under their Authority.” U.S. CONST. art. III, § 2, cl.

1. They thereby made explicit the obligation of judges in

the United States, both state and federal, to ensure com-

pliance with the United States’s treaty obligations.

The Framers considered judicial enforcement of treaties

essential to the maintenance of our international com-

mitments. As James Wilson stated in the course of the

Pennsylvania debates over ratification of the Constitution,

the provision for judicial power over cases arising

under treaties, sir, will show the world that we make

the faith of treaties a constitutional part of the char-

acter of the United States; that we secure its per-

formance no longer nominally, for the judges of the

United States will be enabled to carry it into effect.

2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS

ON THE ADOPTION OF THE FEDERAL CONSTITUTION

490 (Jonathan Elliot 2d ed. 1881). Alexander Hamilton

also underscored the importance of the courts, and in

particular of this Court, in enforcing treaties:

The treaties of the United States, to have any force

at all, must be considered as part of the law of the

land. Their true import . . . must, like all other

laws, be ascertained by judicial determinations. To

produce uniformity in these determinations, they

ought to be submitted, in the last resort, to one

supreme tribunal.

THE FEDERALIST NO. 22, supra, at 150.

Consistent with the constitutional design, this Court

has long held that a ratified treaty

is a law of the land as an act of Congress is, when-

ever its provisions prescribe a rule by which the

rights of the private citizen or subject may be deter-

mined. And when such rights are of a nature to be

enforced in a court of justice, that court resorts to

the treaty for a rule of decision for the case before

it as it would to a statute.

Head Money Cases (Edye v. Robertson), 112 U.S. 580,

598-99 (1884) (emphasis added). See United States v.

Rauscher, 119 U.S. 407, 417-19 (1886) (explaining

Head Money and other precedents). Here, the treaty

requirement at issue—to provide review and reconsid-

eration in a judicial process meeting the criteria laid

down in Avena—is, by definition, a rule establishing

rights “of a nature to be enforced in a court of justice.”

Head Money, 112 U.S. at 599. Indeed, a court of justice

is the only place the right could be enforced. Thus, the

result in this case follows inexorably from the long and

uninterrupted line of cases in which this Court has made

clear, in civil and criminal cases alike, that courts must

in individual cases apply, as the “rule of decision,” Head

Money, 112 U.S. at 599, treaties duly ratified by the

President with the advice and consent of the Senate,

even if those treaties conflict with state law in areas of

traditional state concern.'*

In short, once the United States ratified the Optional

Protocol, the UN Charter, and the ICJ Statute, “the

Judges [of Texas were] bound thereby, any Thing in the

Constitution or Laws of [that] State to the Contrary

notwithstanding.” U.S. CONST. art. VI, cl. 2. That com-

mand, without more, would require the Texas court to

afford review and reconsideration on an application by

a Mexican national afforded that relief by the Avena

judgment.

B. The President Has the Power and Duty to

Take Care That the United States’s Treaty

Obligations Are Faithfully Executed.

Article II of the Constitution provides that the Presi-

dent “shall take Care that the Laws be faithfully exe-

4 See. e.g., El Al Israel Airlines vy. Tseng, 525 U.S. 155, 175-76

(1999) (state law preempted as to personal injury liability); Kolovrat

v. Oregon, 366 U.S. 187, 196-97 (1961) (state law preempted as to

property ownership); Asakura v. Seattle, 265 U.S. 332, 343 (1924)

(state law preempted as to local business regulation); Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 561-62 (1832) (state law preempted as

to criminal prosecution); Fairfax's Devisee v. Hunter's Lessee, 11 U.S.

(7 Cranch) 603, 627 (1813) (state law preempted as to property for-

feiture); see also Wildenhus's Case, 120 U.S. 1, 17 (1887) (treaty

ousting state courts of jurisdiction over crime within state's borders

would be enforceable in federal court by habeas corpus).

cuted.” U.S. Const. art. II, § 3. It has long been recog-

nized that the “Laws” to which this section refers

include treaties of the United States. See, e.g., Fong Yue

Ting v. United States, 149 U.S. 698, 713 (1893); In re

Neagle, 135 U.S. 1, 63-64 (1890). And as this Court has

made clear, the President’s power and duty under this

clause is not “limited to the enforcement of acts of

Congress or of treaties of the United States according to

their express terms,” but also includes authority to take

such steps as he concludes are necessary to carry into

effect “the rights, duties and obligations growing out of

the constitution itself, our international relations, and all

the protection implied by the nature of the government

under the constitution.” Neagle, 135 U.S. at 64.

To ensure that treaty obligations are faithfully exe-

cuted, the President may bring suit against a political

subdivision of the United States, and he needs no statu-

tory authorization to do so. See Sanitary Dist. v. United

States, 266 U.S. 405, 425-26 (1925) (federal Executive

did not require congressional authorization to sue state

agency to enforce treaty); Mexican Boundary—Diversion

of the Rio Grande, 26 Op. Att’y Gen. 250 (1907) (fed-

eral Executive could sue private corporation to enforce

judgment of international commission that was binding

by treaty); see also, e.g., United States v. Republic Steel

Corp., 362 U.S. 482, 492 (1960) (federal Executive

could sue to enforce federal law even beyond specific

remedies established by statute). The President may also

take other steps that he deems appropriate to enforce

federal laws without specific Congressional! authoriza-

tion. See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958) (dis-

patch of federal troops); Neagle, 135 U.S. at 63-68

(dispatch of federal marshal).

Where neither the treaty itself nor a federal! statute

prescribes the means by which a treaty is to be imple-

mented, the President’s authority under the Take Care

Clause includes the power to choose the means of

enforcement. For example, the Jay Treaty of 1794 pro-

vided for the extradition of fugitives to Great Britain,

but neither the treaty nor a statute specified the proce-

dure to be followed. See Treaty of Amity, Commerce and

Navigation, U.S.-Gr. Br., art. 27, Nov. 19, 1794, 8 Stat.

116, 129. Under the authority of the treaty, President

John Adams issued a warrant for the arrest and extradi-

tion to Great Britain of an individual accused of murder

on the high seas. Expressing views that this Court has

endorsed as “masterly and conclusive,” Fong Yue Ting,

149 U.S. at 714, then-Representative John Marshall

explained why, in the absence of specification by

Congress of the means of implementation, this action

was within the President’s authority:

The treaty, which is a law, enjoins the performance

of a particular object. The person who is to perform

this object is marked out by the Constitution, since

the person is named who conducts the foreign inter-

course, and is to take care that the laws be faithfully

executed. . . . Ought not this person to perform the

object, although the particular mode of using the

means has not been prescribed? Congress, unques-

tionably, may prescribe the mode, and Congress

may devolve on others the whole execution of the

[treaty]; but, till this be done, it seems the duty of

the executive department to execute the [treaty] by

any means it possesses.

Speech of John Marshall, 10 ANNALS OF CONG. 596,

613-14 (1800), reprinted in 18 U.S. (5S Wheat.) app. 3,

27; accord United States v. Cooper, 25 F. Cas. 631, 642

(C.C.D. Pa. 1800) (Chase, J., on circuit) (Jay Treaty was

“the law of the land,” and President had authority to exe-

cute its extradition provision). Moreover, the President

has long exercised the responsibility “to defend and pro-

tect and provide procedure for enforcing the rights that

are given to aliens under treaties made by the Govern-

ment of the United States.” Remarks of President Taft to

Members of Am. Soc’y of Int’! Law (Apr. 29, 1910), 18

William H. Taft papers, series 9A, at 206 (Library of

Congress microfilm).

Here, the President has directed that “the United

States will discharge its international obligations under

[Avena] by having state courts give effect to the deci-

sion” in the case of Mr. Medellin and others similarly

situated. Pet. App. 187a. As he has explained, this means

that “in order to obtain ‘review and reconsideration’ of

their ce*victions and sentences in light of the decision of

the ICJ in Avena, the 51 named individuals may file a

petition in state court seeking such review and recon-

sideration, and the state courts are to recognize the

Avena decision.” Br. for U.S. as Amicus Curiae Sup-

porting Resp’t at 42, Medellin v. Dretke.

The President’s choice of the means by which the

United States would discharge its obligations under the

Avena judgment falls squarely within his authority to

take care that the United States’s treaty obligations are

faithfully executed. First, the President’s choice of

means fully comports with the treaty right at issue. A

treaty requirement, just like a constitutional or statutory

requirement, may call for legislative, executive, or judi-

cial action. See, e.g., DaimlerChrysler Corp. v. Cuno,

126 S. Ct. 1854, 1861 (2006) (quoting 4 PAPERS OF

JOHN MARSHALL 95 (C. Cullen ed. 1984)). The “review

and reconsideration” of convictions and sentences in

accordance with the standards adopted in the Avena

judgment is a quintessentially judicial function that the

state courts are well equipped to carry out. See Avena,

9 140-143 (Pet. App. 174a-176a); see also Br. for U.S.

as Amicus Curiae Supporting Resp’t at 41, Medellin v.

Dretke (noting “the suitability of judicial review as a

means of compliance”).

Second, the President’s choice of means utilizes state

procedures already available. Every state, including

Texas, provides judicial procedures for post-conviction

review of convictions and sentences. See, e.g., Tex. Code

Crim. Proc. art. 11.071. The President’s determination

allows the Mexican nationals whose rights were adju-

dicated in Avena to use those existing procedures to

obtain the required review and reconsideration, and

directs the state courts to give preemptive effect in those

cases to the Avena judgment as required by treaty. See

Testa v. Katt, 330 U.S. 386 (1947).

Third, the President’s choice of means shows “proper

respect for state functions” by allowing federal questions

concerning the state criminal process to be heard in the

first instance in state courts. Younger v. Harris, 401 U.S.

37, 44 (1971) (federal courts should not hear challenges

to pending state-court criminal prosecutions when those

challenges can be resolved in siate court). Indeed, fed-

eral law requires the exhaustion of state remedies before

the federal courts can grant habeas corpus, see 28 U.S.C.

§ 2254(b)(1)(A), and there may be federal law obstacles

to federal habeas review of state court application of

federal law that do not apply in the state court itself, see

Medellin v. Dretke, 544 U.S. at 664-66. These require-

ments are premised, however, on the obligation of state

courts faithfully to apply federal law, not on any option

to disregard it.

Finally, by directing state courts to recognize Avena

on petitions seeking the review and reconsideration

ordered by Avena, the President did not make law, as the

Texas plurality erroneously suggested. Pet. App. 48a. He

did not purport to interpret the Vienna Convention;

indeed, the United States has made clear that it disagrees

with the result reached in Avena. Br. for U.S. as Amicus

Curiae Supporting Resp’t at 42, Medellin v. Dretke.

Rather, the President directed that state courts, in cases

brought before them, apply existing federal treaty law as

a means of carrying that law into effect.

By its express mandate, the Supremacy Clause

requires the enforcement by state courts of this Nation's

treaty obligations. See supra Part II.A. If anything fur-

ther were necessary to make that legal obligation judi-

cially enforceable as a matter of domestic law, then the

President, as the officer given the power to execute the

laws, has taken that step by his determination. By doing

so, he did not create any new obligation to be imposed

upon the state courts, but merely removed any arguable

obstacle to judicial enforcement of the relevant treaty

obligations in accord with the constitutional command.

At most, therefore, the President’s choice of means of

treaty enforcement reinforced the choice made by the

Supremacy Clause. At the same time, the President's

determination eliminated any possible concern that com-

pliance by a state court with its duty to give effect to the

treaty obligation by enforcing the Avena judgment might

interfere with the President’s conduct of the Nation’s

foreign affairs. See Part II] below. There is no reason to

suppose the President’s determination insufficient to

require compliance when he has the undoubted author-

ity to sue to achieve the same result. See Sanitary Dis-

trict, 266 U.S. at 425-26.

Ill. The President’s Determination That the United

States Would Abide by Its Obligation to Comply

with a Treaty Obligation Is a Valid Exercise of

His Foreign Affairs Authority.

A. The President Has Independent Authority to

Conduct the Nation’s Foreign Affairs.

In addition to the power to enter into treaties with the

advice and consent of the Senate, the Constitution con-

fers on the President independent authority to formulate

and execute the Nation’s foreign policy. By vesting

“(tjhe executive Power. . . in a President of the United

States of America,” U.S. CONST. art. II, § 1, and by

virtue of the powers “inherent” in a national government,

the Constitution makes clear that the President, the

“Head of State,” is “the sole organ of the federal gov-

ernment ir he field of international relations.” United

States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320

(1936). “[T]he historical gloss on the ‘executive Power’

vested in Article II of the Constitution has recognized

the President’s ‘vast share of responsibility for the con-

duct of our foreign relations,’ ” and as a result, there is

no question “that there is executive authority to decide

what [foreign relations policy] should be.” Am. Ins.

Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

610-11 (1952) (Frankfurter, J., concurring))."

In considering the authority of the President to seize

private steel mills in support of the Korean War, Justice

'S See also First Nat'l City Bank v. Banco Nacional de Cuba,

406 U.S. 759, 767 (1972) (plurality opinion) (the President has the

“lead role . . . in foreign policy”); Chicago & S. Air Lines, Ine. v.

Waterman S.S. Corp., 333 U.S. 103, 109 (1948) (“The President. . .

possesses in his own right certain powers conferred by the Consti-

tutionon him. . . as the Nation's organ in foreign affairs.”).

Jackson, in Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952), provided a means for assessing the

scope of presidential powers, which “fluctuate depend-

ing upon their disjunction or conjunction with those of

Congress.” Id. at 635. Justice Jackson reasoned that

presidential authority is at its maximum “when the Pres-

ident acts pursuant to an express or implied authoriza-

tion of Congress,” in a “zone of twilight” when the

President “acts in absence of either a congressional grant

or denial of authority,” and “at its lowest ebb...

[w]hen the President takes measures incompatible with

the expressed or implied will of Congress.” /d. at 635-38

(Jackson, J., concurring).

In Dames & Moore v. Regan, 453 U.S. 654 (1981),

this Court applied Justice Jackson's framework to

uphold Executive Orders promulgated by the President

that nullified judicial attachments, effectuated transfers

of certain funds out of the country, and suspended claims

of American nationals against Iran in favor of binding

arbitration in an international tribunal established by an

executive agreement. /d. at 668-69. The Court upheld

the President’s power to nullify attachments based upon

the explicit Congressional authorization given to the

President under the International Emergency Economic

Powers Act, 50 U. S. C. §§ 1701-1706. Jd. at 674. The

Court also held that while there was no “specific autho-

rization” for the President to suspend claims in United

States courts, there did exist strong evidence of a “his-

tory of congressional acquiescence” in unilateral action

by the President to settle disputes with other nations. Id.

at 678-79. Holding that “the President does have some

measure of power to enter into Executive agreements [to

settle disputes between nations] without obtaining the

advice and consent of the Senate,” id. at 682 (citing

United States v. Pink, 315 U.S. 203, 229-30 (1942)), the

Court found that the longstanding practice of the Presi-

dent to take action to settle claims to resolve “sources of

friction” with foreign nations had implicit Congressional

approval and thereby enjoyed a presumption of validity.

Id. at 679-84, 686.

Most recently, in Garamendi, 539 U.S. 396 (2003), the

Court considered whether a California statute requiring

in-state insurers to disclose information about Holo-

caust-era policies in order to settle claims through liti-

gation was preempted by executive agreements that

required the United States to use its “best efforts” to pro-

tect such companies from litigation in exchange for the

foreign companies’ contributions to a claims settlement

fund. /d. at 401, 406. Relying squarely on the President’s

foreign affairs authority, the Court determined that the

President’s settlement of claims with foreign nations

required “no ratification by the Senate or approval by

Congress” since “in foreign affairs[,] the President has

a degree of independent authority to act” that has long

been exercised, with the acquiescence of Congress, to

sé@itle claims with foreign nations. /d. at 414-15, 424

n.14. As a result, the Court concluded that the state

statute in question impermissibly interfered with the

conduct of foreign policy by the executive branch of the

federal government. /d. at 401.

In sum, as the Court’s decisions in Youngstown,

Dames & Moore and Garamendi demonstrate, when the

President acts with Congress’s express or implicit

approval or acquiescence, his “authority is at its maxi-

mum, for it includes all that he possesses in his own

right plus all that Congress can de!egate.” Youngstown,

343 U.S. at 635 (Jackson, J., concurring); see also

Dames & Moore, 453 U.S. at 668. Even in the absence

of such approval or acquiescence, the President has a

degree of “independent authority” to act. Garamendi,

539 U.S. at 414; see also Youngstown, 343 U.S. at 637

(Jackson, J., concurring); United States v. Belmont, 301

U.S. 324, 331 (1937). And action by the President in the

exercise of his foreign affairs authority preempts incon-

sistent state law.'°

B. The President’s Determination Lies Squarely

Within His Authority to Conduct the

Nation’s Foreign Affairs.

Exercising his foreign affairs authority, the President

has determined that the United States must comply with

the Avena judgment. As the United States earlier

explained to this Court, the President’s determination

involved

delicate and complex calculations . . . taking into

account the need for the United States to be able to

enforce its laws effectively against foreign nation-

als in the United States, the need for the United

States to be able to protect Americans abroad, judg-

ments about the likely responses of various foreign

countries to potential United States actions with

respect to the Vienna Convention, and other United

States foreign policy interests.

Br. for U.S. as Amicus Curiae Supporting Resp’t at 41-

43, Medellin v. Dretke. As the United States also

explained, by ordering compliance, the President pur-

16 See Garamendi, 539 U.S. at 413 (“There is, of course, no

question that at some point an exercise of state power that touches on

foreign relations must yield to the National Government's policy.”);

United States v. Pink, 315 U.S. at 230-31, 233 (“{S}tate law must yield

when it is inconsistent with, or impairs. . . the superior Federal pol-

icy evidenced by a treaty or international compact or agreement. . . .

No State can rewrite our foreign policy to conform to its own domes-

tic policies. Power over external affairs is not shared by the States, it

is vested in the national government exclusively.”); Belmont, 301 U.S.

at 331-32 (state laws cannot “be interposed as an obstacle to the effec-

tive operation of a federal constitutional power’).

sued two objectives he deemed critical: the need for the

United States to “resolve a dispute with a foreign gov-

ernment” and “fulfill[ ] its international obligation,” id.

at 41, 45, and the need to preserve the United States’s

ability “to protect Americans abroad,” id. at 43.

The President’s determination constitutes a

quintessential foreign policy judgment made at the

zenith of his authority. Put simply, the President has

done nothing more than determine that the United States

will do what the elected representatives of the American

people, by the treatymaking processes prescribed by the

Constitution, have promised Mexico and the rest of the

parties to the UN Charter that the United States, includ-

ing Texas and its courts, will do: abide by the Avena

judgment. In making that determination, the President

entered into no new international agreements, prescribed

no new rules, established no new procedures, and under-

took no new obligations. Instead, he merely confirmed

that the United States would comply with international

commitments already made by the constitutionally des-

ignated political actors. No more modest exercise of his

foreign affairs authority, nor any with clearer autho-

rization from the appropriate political branches, could be

conjured. See Part III.A.

Indeed, especially in light of the unequivocal treaty

obligation, the President had far greater latitude than he

employed. First, this Court has repeatedly recognized

that the President has the authority to peaceably resolve

disputes with other nations even without congressional

participation. See, e.g., Garamendi, 539 U.S. at 415;

Dames & Moore, 453 U.S. at 682; Pink, 315 U.S. at 223;

Belmont, 301 U.S. at 330-31. In recognizing that author-

ity, the Court has emphasized Congress’s own acquies-

cence in the exercise of that authority. That authority is

conclusive here: If, in order to settle a dispute with

another country, the President has the authority to sus-

pend proceedings in courts in the United States, Dames

& Moore, 453 U.S. at 686, or to preclude the application

of state disclosure laws in order to preserve the efficacy

of an international dispute resolution mechanism as the

exclusive forum for the resolution of a class of private

claims, Garamendi, 539 U.S. at 420-21, then the Presi-

dent surely has the authority to designate state courts as

the forum in which to hear treaty claims arising from the

state’s own conduct, even if those courts were not

already under a constitutional mandate to do so."’

Second, Congress has regularly expressed its expec-

tation that the President will act to protect American

interests abroad, including by affording reciprocal pro-

tection of foreign interests in the United States. For

example, the Omnibus Diplomatic Security and Antiter-

rorism Act of 1986 authorizes the Secretary of State, an

executive branch official who acts at the President’s

direction, to prescribe policies for the protection not

only of foreign missions and officials but also of “other

foreign persons in the United States, as authorized by

law.” 22 U.S.C. § 4802(a)(1)(D). In addition, the Presi-

dent has long had the statutory authority to use all

“means, not amounting to acts of war and not otherwise

prohibited by law” to secure the release of Americans

wrongfully detained abroad, 22 U.S.C. § 1732, a goal

17 From the Nation's infancy, the federal political branches have

repeatedly de.ermined that it was within the interests of the United

States to submit disputes with “ther nations to binding adjudication

by international tribunals. See generally Henry Paul Monaghan, Arti-

cle II] and Supranational Judicial! Review, 107 COLUM. L. REv. 833

(2007); Walter Dellinger, U.S. Dep't of Justice, Ofc. of Legal Coun-

sel, Constitutional Limitations on Federal Government Participation

in Binding Arbitration (Sept. 7, 1995) (citing and discussing author-

ities), available at http://www.usdoj.gov/olc/arbitn.fin.htm (last vis-

ited June 24, 2007).

that will often require assurances of reciprocal protec-

tions for aliens detained here. And even in the absence

of statutory authorization, the President has long exer-

cised broad authority to protect the safety and interests

of Americans abroad. See, e.g., Durand v. Hollins, 8 F.

Cas. 111, 112 (C.C.S.D.N.Y. 1860) (Nelson, J., at cir-

cuit).

In this case, the President has determined that

“fcjonsular assistance is a vital safeguard for Americans

abroad,” and that “unless the United States fulfills its

international obligation to achieve compliance with the

ICJ Avena decision, its ability to secure such assistance

could be adversely affected.” Br. for U.S. as Amicus

Curiae Supporting Resp’t at 41, Medellin v. Dretke. As

the State Department told the Senate Foreign Relations

Committee at the time of ratification of the Vienna Con-

vention, “[t]he United States government has to consider

the Vienna Convention both from the viewpoint of the

United States as a sending state and from the viewpoint

of the United States as a receiving State.” S. EXEC. REP.

No. 91-9, at 8 (1969) (statement of Deputy Legal

Adviser J. Edward Lyerly). Indeed, the reciprocal pro-

tection of the person and property of nationals abroad

has been a frequent subject of treatymaking by the

United States and its treaty partners from the Nation’s

founding through the present day. See, e.g., Asakura,

265 U.S. at 341 (citing Baldwin v. Franks, 120 U.S. 678,

682 (1887)) (“Treaties for the protection of citizens in

one country residing in the territory of another are

numerous, and make for good understanding between

nations.”’).

Finally, Congress has conferred on the President and

Secretary of State the responsibility for conducting our

relationship with the United Nations. See 22 U.S.C.

§§ 287(a), 287a. That grant should encompass the

authority to determine the means by which the United

States will comply with its obligation under the UN

Charter to abide by a decision of the ICJ, which is an

organ of the United Nations.

C. No Additional “Executive Agreement” Is

Needed.

The Texas court made explicit that “[t]he absence of

an executive agreement between the "/nited States and

Mexico [was] central to [its] determi..«:ion that the Pres-

ident ha{d] exceeded his inherent foreign affairs power

by ordering [that court] to comply with Avena.” Pet.

App. 46a. According to the Texas court, the absence of

such an agreement rendered Belmont, Pink, Dames &

Moore, and Garamendi inapposite and placed the Pres-

ident’s authority “ ‘at its lowest ebb.’ ” Jd. at 44a-45a.

Contrary to the Texas court’s assumption, the Presi-

dent does not need Mexico’s permission in order to

determine that the United States will compiy with its

treaty obligation or, for that matter, to choose the means

of compliance. First, the President here acted pursuant

to a series of treaties, comprising the UN Charter, the

ICJ Statute, and the Optional Protocol, each of which

mandates compliance with the Avena judgment. Hence,

the international agreement the Texas plurality so des-

perately sought can easily be found, if needed, in those

treaties, which—unlike executive agreements—are

instruments of a type expressly provided for in the Con-

stitution and have received the assent not only of the

President but also the Senate.

Second, it is not clear what the Texas court thought

needed to be settled in the negotiations over an imple-

menting executive agreement. Given its initiation and

pursuit through judgment of Avena, and the briefs it has

filed in this Court calling on the United States to com-

ply, there can be no doubt that Mexico seeks compliance.

And surely the Texas court did not mean to suggest that

the President needed to settle with Mexico on the means

by which it would comply. For one thing, the ICJ made

clear that, so long as the means satisfied the criteria set

forth in the judgment, the United States could provide

review and reconsideration “by means of its own choos-

ing.” Avena, 9 153(9) (dispositif) (Pet. App. 185a). For

another, the Constitution provides that means for the

United States, in any event, by way of the mandate to

state courts in the Supremacy Clause.

Finally, contrary to the Texas court’s assumption, an

executive agreement has no special constitutional sig-

nificance, and the President need not exercise his foreign

affairs authority in accord with any particular procedure.

This Court has given preemptive effect to executive

agreements because to do otherwise would allow states

to interfere in the President’s conduct of the Nation’s

foreign affairs authority. But the President may exercise

its foreign affairs authority in other ways as well: This

Court has inferred an executive agreement from

exchanges of correspondence, Belmont, 301 U.S. at 326,

and has even gleaned a national foreign policy sufficient

to preempt state law from the congressional testimony of

executive branch officials, Garamendi, 301 U.S. at

326."8

'8 Moreover, contrary to the position taken in Judge Cochran's

concurrence, no special formality is required for a presidential mem-

orandum, determination or other directive to be legally effective. The

legal effect of presidential action depends on its substance, not the

form in which it was issued. Wolsey v. Chapman, 101 U.S. 755, 770

(1880); Dep't of Justice, Ofc. of Legal Counsel, Mem. for Counsel to

President, Legal Effectiveness of a Presidential Directive, As Com-

pared to an Executive Order (Jan. 29, 2000), available at http://

www.usdoj.gov/olc/predirective.htm (last visited June 24, 2007). Over

the years, Presidents have issued not only Executive Orders and

IV. The Texas Procedural Bar Applied by the Texas

Court Is Preempted.

The UN Charter, the ICJ Statute, and the Optional Pro-

tocol obligate the United States, including its constituent

States and their courts, to abide by the Avena judgment

as a matter of international law. See Part I.A above. The

Supremacy Clause makes that obligation part of federal

law, see Part I.B above, and requires state courts to

enforce it, see Part II.A above. In addition, exercising

his authority to take care that the United States’s treaty

obligations be faithfully executed and his authority to

conduct the United States’s international affairs, the

President has determined that the United States will dis-

charge its obligations under Avena by giving effect to

that decision in state courts. See Parts II.B and III above.

Hence, as a matter of preemptive federal law, the Texas

Court of Criminal Appeals had an obligation to apply the

Avena judgment on Mr. Medellin’s application for

review and reconsideration.

The Avena judgment requires the United States to pro-

vide, as a remedy for the Article 36 violation, “review

and reconsideration of the conviction[ ] and sentence[ ]

of” Mr. Medellin, “by taking account both of the viola-

tion of the rights set forth in Article 36 of the Conven-

tion and of paragraphs 138 to 141 of [that] Judgment.”

Avena, 4] 153(9) (dispositif) (Pet. App. 185a). Moreover,

the process by which the review and reconsideration is

effected must “guarantee that the violation and the pos-

sible prejudice caused by that violation will be fully

examined and taken into account.” /d. 9 138 (Pet. App.

Proclamations but also a wide variety of other types of directives. See

generally CRS Report for Congress, Presidential Directives: Back-

ground and Overview, No. 98-611 GOV (updated April 23, 2007).

Judge Cochran's suggestion that the President can take effective

action only through a formal Executive Order or Proclamation pub-

lished in the Federal Register lacks any legal support.

173a). Hence, a procedural bar that prevents the Texas

court from giving effect to Avena “must give way.” Br.

for U.S. as Amicus Curiae Supporting Resp’t at 43,

Medellin v. Dretke.

In order to obtain the review and reconsideration to

which he is entitled, Mr. Medellin invoked the mecha-

nism available under Texas law by filing an application

for post-conviction relief in the Texas Court of Criminal

Appeals. See Tex. Code Crim. Proc. art. 11.071. That

court, however, refused to order the review and recon-

sideration of Mr. Medelliin’s case required by Avena.

Instead, it held that relief was foreclosed by a Texas pro-

cedural default statute, Tex. Code Crim. Proc. art.

11.071, § S5(a)(1), because the Vienna Convention vio-

lation arose from facts and law in existence at the time

of Mr. Medellin’s original trial. Pet. App. 56a-64a. By

refusing to provide the review and reconsideration

required by Avena on the basis of a procedural bar that

fell before that remedy was ordered, the Texas court con-

travened the requirements of Avena.

The Texas procedural default statute, as interpreted

and applied by the Texas Court of Criminal Appeals, is

thus flatly inconsistent with the treaties requiring the

United States to abide by the Avena decision, which

requires review and reconsideration of Mr. Medellin’s

conviction, and with the President’s determination,

which requires that the Avena decision be given effect in

Mr. Medellin’s case. Thus, the Texas statute is pre-

empted in the circumstances of this case, and the Texas

court erred in applying it.

CONCLUSION

For the foregoing reasons, petitioner respectfully

requests that the Court reverse the judgment of the Texas

Court of Criminal Appeals and remand petitioner’s case

for review and reconsideration consistent with the Avena

judgment and the President’s determination.

Respectfully submitted,

DONALD FRANCIS DONOVAN

(Counsel of Record)

CARL MICARELLI

CATHERINE M. AMIRFAR

BRUCE W. KLAW

JILL VAN BERG

EMMA C. PRETE

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022-3916

(212) 909-6000

Attorneys for Petitioner

June 28, 2007

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.