Wednesday, March 26, 2008

Medellin vs. Texas

I know that I rarely speak of legal topics except for when it overlaps with the technological world. My own legal know-how is limited to “Ars Technica” articles and my “Constitutional Law” elective in college. But, the recent US Supreme Court ruling has caught my interest. The case and the resulting ruling involve many issues prominent in the current War on Terror and the increasing concerns about international laws effecting national sovereignty.

The Short, Short Version of what happened:
-Mexican citizen on Texas death row didn't get informed that he could to talk to Mexican consulate during his trial. On appeal, his defense states this renders his death sentence moot.
-Mexico went to International Court, where they said TX had to let the inmate speak to the consulate b/c of some treaty the US signed
-Texas said, "Nope, that treaty's not US law so we don't have to do any such thing."
-President Bush issued executive order saying Texas had to comply with the treaty even if it hadn't been made part of the US Federal legal code
-Texas took it to the courts....
RESULT: The Supreme Court ruled that
(1) This US treaty was not "self-ratifying" (ie - when the US signs the treaty, it becomes US law). The language was too broad to allow it.
(2) The President does not have the authority to override the above nor to command the states to follow international law not made into federal law.

After reading several articles discussing the case, the most eloquent commentary on the first part of the ruling ruling I found was at Volokh Conspiracy where Ilya Somin had this to say:

...most multilateral treaties and other international law materials are produced by highly undemocratic processes in which authoritarian states and unaccountable political elites from democratic states play a dominant role. On average, the legal rules they establish are likely to be inferior to those created by the domestic lawmaking processes of democratic states. Therefore, it is essential that international law not be allowed to override our domestic law unless it has first been "screened" by the same democratic legislative process that the latter goes through. Otherwise, courts will end up enforcing international legal rules that are likely to be systematically inferior to the domestic rules they displace.
Full article.

I am a believer that elites are necessary both to lead the masses and to channel their energies more effectively. But, the best elites are those who work with and are ultimately beholden to the public. My key problem with international laws and treaties is that the elites making the decisions rarely involve people in the process. Or if they do, it’s in regard to something trivial like an online poll for naming a baby elephant on Earth Day. Too often, international bureaucrats hand down proclamations from on high without consulting anyone outside of their relatively monolithic political circles. Honestly, do you genuinely believe the US State Department (which negotiates most of the USA's treaties) is in tune with the pulse of the American public? Or they that care what the American people think? They care about what we can be convinced of, sure, but not necessarily what we want.

Therefore, the Supreme Courts ruling on self-ratification most definitely strikes me as sound. If the American public and democratic processes are in concurrence with international treaties, than the law can be ratified and enforced. Now, the opinion does include some mention that a treaty that is explicitly self-ratifying will be accepted as US law. In this case, the treaty wasn't but it could be possible. I'm not entirely happy about how the Supreme Court split that hair. I'd be much happier if we were required to vet treaties through more democratic means than the treaty negotiations process. Vetting would ensure (1) a more clearly delineated process for applying good international law-making to the United States legal code and (2) a democratic check/balance international treaties and agreements to ensure they are of good quality.

The second aspect of the ruling is both pleasing in its result and disappointing to me regarding the President’s actions. While I find him personally quite likable, the President has long since lost me when it comes to domestic counter-terrorism policies. In particular, his broad interpretations of executive powers (however well-meaning they may be) strike me as really dangerous precedents. Congress should have the authority to review treaties and create enforceable laws based on them. If there is not enough political will or public opinion to ratify the treaty or to create laws based on that treaty, then I’m sorry but the President can’t and shouldn’t just write an executive order telling states to ignore that.

President Bush's overly broad view of executive privilege is honestly one of his greatest weaknesses. The stance doesn't have near the justification his advisors think it does. I'm sure a number of government agencies do love and support this interpretation. Instead of convincing Congress (100s of people) that certain unpopular actions are necessary, they only have to convince one person. Which makes it disturbingly easy to get things done. What Mr. Bush and many of his advisors fail to realize is that people are kinda put off by government when its too effective especially when it comes to investigative and prosecution powers. The President's failure to understand that and pick his battles has resulted in many people being put off by his continued requests for less executive oversight. Yes, terrorism is a real problem but it's also not a blanket justification for destroying checks on executive privilege. That the Supreme Court struck down this broad interpretation is encouraging.

Taken together these two aspects of the ruling (limited self-ratification and limit on executive privilege) ensure that the United States can participate in the international legal process while still staying (somewhat) true to its Constitutional roots. The ruling clearly supposes that international law has a valid place in the US legal system while also ensuring checks and balances are maintained. It's a compromise but an effective one.

Recently, there are issues cropping up in Constitutional law that more frequently highlight inconsistencies in our Constitution. That document was created based on the assumptions of 18th century men. For the most part, those assumptions have lasted and remain valid. But with new technologies and more global integration on all levels, some inconsistencies that previously didn’t affect anything are becoming important, even critical to the continued good governance of this country. I can only hope as these issues work through the court system, the Supreme Court’s further rulings in resolving these situations are as well considered as Medellin vs Texas.

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