# Petitioners Brief — Medellin v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0518%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2008 - **Citation:** 552 U.S. 491 ## Text 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 1. i 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? ii 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 F. G. H. iV The President’s Determination.......... This Court’s Dismissal of Certiorari ... The Proceedings Below................+. SUMMARY OF ARGUMENT ............-....5:. ARGUBIENT. ..ccccccccvccccccsccccccescscessosseces I. 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. .........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 19 19 23 26 26 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 vi 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 xi 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 20 30 40 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, 2 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 3 “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). 4 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). 3 See Multilateral Treaties Deposited with the Secretary-Gen- eral: Vienna Convention on Consular Relations, at http://untreaty.un.org/ 5 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). 4 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 6 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). 7 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). 8 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 9 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. 10 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- 1] 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. 12 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- 13 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. 14 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. 15 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). 7 16 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 17 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- 18 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 19 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 20 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 21 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”). 22 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 23 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. a4 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- 25 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?”). 26 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 27 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.” 28 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). 29 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- 30 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 31 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. 32 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; 33 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. 34 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.”). 35 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- 36 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 37 (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’). 38 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 39 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). 40 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 41 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- 42 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 43 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. 4a 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. 45 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0518%3A08. Public record. Not legal advice.