Supreme Court inserts head up ass over treaty obligations

Posted on March 26, 2008


Yesterday, the Supreme Court threw our entire diplomatic corps, the State Department, and possibly every treaty the U.S. has ever signed that is still in force, into complete disarray. And in the process, the Court may have inflicted more harm to our national authority and international standing than anything President Bush II has done to date, including invading Iraq. And that harm may turn out to have fantastic reach and duration if Congress and the President don’t immediately step in to rectify the Court’s gross error.

The Supreme Court essentially invalidated an international treaty by blocking federal enforcement of the treaty’s obligations.

First, a little background. The Vienna Convention on Consular Relations insists that foreign nationals be provided consular access if they’re charged with a crime that could bring the death penalty. And even though Bush has withdrawn the U.S. from this part of the treaty (while still demanding that our citizens be granted similar rights, nonetheless), he sought to force the state of Texas to comply with the treaty regarding a Mexican national who confessed to the rape and murder of two teenage girls. Texas refused and, yesterday, the Supreme Court sided with the state of Texas.

On the surface, this is a rebuke to the Bush Administration and a victory for “states rights”, and in fact most media outlets are playing these aspects up. The Washington Post opened their story with “The Supreme Court yesterday issued a broad ruling limiting presidential power and the reach of international treaties, saying neither President Bush nor the World Court has the authority to order a Texas court to reopen a death penalty case involving a foreign national.” The Post doesn’t even mention the diplomatic fallout from the story, focusing entirely on the domestic side of the decision. The New York Times did a little better in addressing the international ramifications by quoting from the dissenter’s opinion:

In a dissenting opinion, Justice Stephen G. Breyer disagreed with that interpretation. He also said the majority had set too rigid a formula for deciding whether treaties were “self-executing.” He warned that the decision threatened to destabilize the country’s relations with treaty partners under dozens of pacts.

As a result of the decision, Justice Breyer said, “the nation may well break its word even though the president seeks to live up to that word and Congress has done nothing to suggest the contrary.”

NPR’s Supreme Court reporter, Nina Totenberg, covered the diplomatic side of this decision the best in her story.

Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, said the decision would create havoc in diplomatic circles for some time to come.

“If our international allies have no assurance that we’re actually going to keep our word, then they have much less incentive to keep their word when they’re being obliged to do something,” he said….

Temple law professor Duncan Hollis, an expert on international law, said that nonetheless, Tuesday’s ruling will have practical consequences. Because enforcement of some existing treaties may now be in doubt, negotiations over future treaties could be more difficult, he said, with general assurances of enforcement failing to suffice.

Until yesterday, the President’s authority to enforce our treaty obligations was largely unquestioned. Today, however, that’s no longer the case. Now the President needs to negotiate and sign a treaty, the Senate needs to ratify it, and then the entire Congress needs to pass explicit enforcement legislation in order to implement the very directive of U.S. Constitution:

All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…

Justices Roberts, Scalia, Thomas, Alito, Kennedy, and, amazingly enough, Justice Stevens – it’s obvious what your problem is.

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