The Treaty Power Flashcards
The Treaty Power
Article II, Section 2 of the Constitution empowers the President of the United States with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.
Self-Executing Treaty
Not requiring additional legislation. The treaty itself creates obligations on Americans that can be enforced in domestic courts. The treaty must state that it is self-executing. If a treaty is self-executing, it is the supreme law of the land, and can be enforced by the judiciary.
Non-self executing treaty
requires additional legislation as a matter of US law to create obligations on Americans that could be enforced in domestic courts. The test to determine whether the legislation is constitutional is the necessary and proper clause: is it necessary and proper to enact this legislation to enforce the provisions of the treaty?
Missouri V. Holland (Non-Self Executing Treaty)
Facts: The US entered into a treaty with Great Britain to protect birds that migrated between the US and Canada. Congress passed a statute to enforce the treaty. Before the treaty had been entered into, Congress had attempted to regulate the killing of migratory birds within the states, and the statute, standing by itself, had been declared unconstitutional.
Issue: Whether Congress can validly enact a statute to enforce a treaty of the US? YES! If a treaty is valid under the Constitution, Article I, Section 8 gives Congress the power to enact legislation that is necessary and proper to enforce the treaty. This opinion implies that the treaty power authorizes the national government to bind the nation to take actions that it is otherwise constitutionally barred from taking. All Congress needs is one enumerated power to justify legislation!
Medellin V. US (Non-Self Executing Treaty)
Facts: Medellin, a Mexican national who lived in the US, was convicted of murder and sentenced to death. Medellin confessed to the murder, but without being informed of his rights under the Vienna Convention to notify the Mexican consulate of his detention. The US had also ratified an optional protocol to the Vienna Convention providing that any disputes would lie within the jurisdiction of the ICJ.
Issue: Whether Medellin could enforce in Texas’ courts, a judgment by the ICJ in a case brought against the US by Mexico. The judgment held that the US was obligated to provide reconsideration of Medellin’s conviction and sentence.
Holding: NO! Medellin cannot enforce the judgment by the ICJ. The US had not entered into any self-executing treaty obligation; thus the judgment by the ICJ did not automatically constitute federal law enforceable in US courts.
This decision can also be explained by federalism. The court may not have wanted to enforce international law against the states.
