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By David M. Wagner

From the Chief's opinion for the Court in Medellin:

A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President?acting on his own?to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not ?express[ly] or implied[ly]? vest the President with the unilateral authority to make them self-executing. See [Youngstown] at 635 (Jackson, J., concurring). Accordingly, the President?s Memorandum does not fall within the first category of the Youngstown framework.

And, distinguishing Dames & Moore v. Regan:

The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that ?a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,? can ?raise a presumption that the [action] had been [taken] in pursuance of its consent.? Dames & Moore, supra, at 686 (some internal quotation marks omitted)....

Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that ?[p]ast practice does not, by itself, create power.? Dames & Moore, supra, at 686.

...Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State?s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws....

I'll only have time to eyeball the dissent briefly today. Far more law-review articles are cited there than in the opinion of the Court. What do you expect? If you want support for the proposition that public international law reduces everything else -- including the traditional police powers of the states, including the U.S. Constitution itself -- to mere and interchangeable "municipal law," you have to go to "the commentators," because actual sources of American law won't help you very much.

Full post as published by Ninomania on March 25, 2008 (boomark / email).