Ex Parte Medellin

testimony contain time records and

support the trial court’s award. It

that, upon consideration of the correct re- obtained, this evidence would be fac-

sults

tually support sufficient a like fee taking

award. But into account the differ-

ence between erroneous and correct damages,

amounts of and the fact

jury by nearly award was reduced two- appeal, reasonably

thirds on we cannot be signifi-

certain that the trial court was not Barker,

cantly affected the error. Therefore,

S.W.3d at 314. the case must

be remanded to the trial court for a new attorney’s

trial on fees.

Accordingly, without hearing argu- oral pursuant

ment to Rule 59.1 of the Texas Procedure, Appellate

Rules of reverse we appeals’ judgment

the court of on the issue fees, attorney’s

of reasonable and remand part of the case to trial court for proceedings

further consistent with this

opinion.

Justice JOHNSON participate did

the decision. parte MEDELLÍN,

Ex José Ernesto

Applicant.

No. AP-75207.

Court of Appeals Criminal of Texas.

Nov.

national Court of Justice Avena decision and the President’s memorandum direct- Avena, ing give state courts effect to require this Court to reconsider his Article they 36 Vienna Convention claim because (1) binding constitute federal law that (2) preempt Article 11.071 and Section previously were unavailable factual and le- 5(a)(1). gal bases under Section holdWe that Avena and the President’s memoran- dum do not Section 5 and do not preempt qualify previously unavailable factual or legal bases.

I. PROCEDURAL HISTORY OF MEDELLÍN’S CASE Medellin, national, a Mexican con- was capital victed of murder and sentenced death for participation gang rape his teenage girls and murder of two in Hous- ton. We affirmed his conviction and sen- appeal.1 tence on direct Medellin filed an application initial for a Gary Austin, A. Taylor, and Michael B. corpus, writ of habeas claiming for the Charlton, Alvin, appellant. time, among first things, other that his rights under Article 36 of the Vienna Con- Rosenthal, Jr., Houston,

Charles A. vention had been violated because he had Paul, Austin, Matthew Attorney, State’s right for State. not been advised of his to contact the Mexican consular official after he ar- was OPINION rested.2 The district court found that Me- object dellin failed to to the violation of his KEASLER, J., opinion delivered the and, rights Vienna Convention at trial as a II, respect I, the Court with to Parts result, III.A, III.C., IV, KELLER, proce- in concluded that his claim and which was P.J., MEYERS, PRICE, JOHNSON, durally barred from review. The court HERVEY, HOLCOMB, COCHRAN, and found, alternative, in also that Medel- JJ., joined, and an opinion respect to lin, individual, private as a did not have III.B., MEYERS, PRICE, Part in which standing bring to a claim under the Vienna HERVEY, JJ., joined. and treaty among Convention because it is a nations and therefore does not confer en- José Ernesto Medellin filed this subse- quent individuals; application, alleging that the rights only signa- Inter- forceable State, AP-71, 997, Medellín, (339th slip op. parte 1. Medellín v. No. 2. Ex 675430-A No. 19, 1997) (not (Tex.Crim.App. designat 22, 2001). Mar. Dist.Ct. Jan. publication). ed for violation, tory remedy standing nations have raise a claim ICJ ordered the treaty. Offering under the an additional review provide United States to and recon- alternative, the court that Me- determined sideration of the convictions and sen- harm dellin failed to show because he re- tences at to determine issue whether the representation legal ceived effective and prejudice violation actual “caused to the rights his had constitutional been safe- process defendant in the of administration guarded. Finally, court concluded justice.”9 specifically of criminal The ICJ prove that un- rights required regardless Medellin did not his stated that review is Sixth, Fifth, der procedural Fourteenth default rules would oth- Amendments had been violated and that erwise bar review.10 he failed to show that non-notification denied The federal district court Medel- validity of his affected the conviction and application lin’s for a certificate of appeala- adopted We the trial court’s sentence. bility, and appealed Medellin United findings of fact and conclusions of law with for the Appeals States Court of Fifth Cir- and denied written order relief.3 cuit, application.11 his which also denied his presented Medellin then Con- Vienna The Fifth the ICJ in Circuit noted decision petition in a a vention claim federal for Avena, that it was but determined bound corpus. writ of The court habeas district in by the decision Breará Supreme Court’s relief,4 Medellin denied filed for Greene, claims which held that based on appealability. ap- certificate of his While a violation of the Vienna Convention are plication pending, was International subject to procedural default rules.12 Con- (ICJ) issued Court of Justice its decision tinuing, if the court found that even Medel- case, Avena.5 In that Mexico claimed that lin’s claim was pro- Vienna Convention States had violated the Vienna defaulted, cedurally previous holding its failing timely Convention advise United States v. Jimenez-Nava —that awaiting fifty more than Mexican nationals does not create individ- Vienna Convention prisons, includ- execution United States ually it rights require enforceable —would Medellin, ing right of their talk to a deny application for certifi- Medellin’s they consular official after had been de- cate of appealability.13 Mexico, ruled tained.6 ICJ favor of Medellin for certiorari to the holding petitioned that the Vienna Convention does States, Supreme of the United rights individual that the Unit- confer granted argu- Before oral ed violated the Convention.7 To which review.14 States ¶ Medellín, WR-50, 191-01 (Tex. 9. Id. 121. parte Ex No. 3, 2001) (not designated Crim.App. Oct. ¶¶ publication). 112-13, 153(9), (11). 10. Id. Cockrell, H-01-4078, 4. Civ. Medellín v. No. 270, Dretke, 273, F.3d 281 11. Medellín v. 371 (S.D.Tex. 17, 2003). Apr. 2003 WL 25321243 (5th Cir.2004). Concerning 5. Avena and Mexican Case other Greene, (citing 12. Id. at Breará v. 280 U.S.), (Mex. v. 2004 I.C.J. No. 128 Nationals (1998)). 140 L.Ed.2d 529 S.Ct. 31). (Judgment Mar. limenez-Nava, (citing 13. Id. United States ¶¶ 6. 49. Id. Cir.2001)). (5th 243 F.3d 90, 106, ¶¶ 7. Id. Dretke, U.S. 14. Medellín v. (2004). ¶¶ L.Ed.2d 518 Id. 138-40. merit, applicant the President issued a on the date the memorandum unavailable directing give state courts to effect to the previous application”;19 filed the Avena decision under the principles of (cid:127) evidence, “by preponderance of the Then, comity.15 pend- while case his was but for a violation of the United States Court, ing Supreme before the Medellin juror no rational could Constitution application filed an for writ of habeas applicant guilty beyond have found the Court, corpus in requesting that we doubt”;20 a reasonable or give full effect to the Avena decision and to the President’s memorandum.16 The (cid:127) evidence, “by and convincing clear but Supreme subsequently dismissed for a violation United States improvidently granted, Medellin’s case as juror Constitution no rational would stating possibility there is a have answered the State’s favor one provide “Texas courts will Medellin with special more of the issues....”21 pursuant the review he seeks to the Avena We ordered Medellin and the State to judgment and the President’s memoran- brief the following issue: whether Medel- dum. ...”17 lin requirements “meets the for consider- dismissal, Supreme Based on the Court’s subsequent ation of a application for writ we determined that Medellin’s subsequent corpus of habeas provisions under the application is ripe for consideration.18 We 11.071, Article section of the Texas Code therefore filed and set this case for sub- of Criminal Procedure.”22 We also invited mission. Attorney General of the United States 5(a) 11.071, Under Article Section “present the views of the United Procedure, Code of Criminal we 14, 2005, September States.”23 On we consider the merits of claims raised on argument parties heard oral from the a subsequent application for a writ of ha- General, argued Solicitor who on be- corpus grant beas relief unless the ap- Attorney half of the General of the United plicant provides specific sufficient facts many States. Medellin’s claims raise re- demonstrating that: markable impression issues first for this (cid:127) “the current claims and have issues Court to provide resolve. Before we some not been and pre- could not have been necessary information, background we be- sented previously timely in a initial gin with a brief arguments overview of the application or in a previously consid- parties ered ... advanced application because factu- and the United legal al or basis for the claim was States as amicus curiae. Medellín, AP-75,207 Attorney parte (per President’s Memorandum for the 18. Ex No. cu General, Subject: order) Compliance (designated publication). with the Deci- riam sion of the International Court of Justice in (Feb. 2005), 5(a)(1) http:// Avena § available at 19. Tex.Code Crim. Proc. art. 11.071 www.whitehouse.gov/news/releas- (Vernon 2003). 18.html [hereinafter

es/2005/02/20050228- 5(a)(2). § Id. Presidential Memorandum], Medellín, (Tex. 5(a)(3). parte Ex 206 S.W.3d 584 AP-75,207. Crim.App.2005), Application No. Medellín, AP-75,207 parte (per 22. Ex No. cu Dretke, 660, order) (designated publication). 17. Medellín v. 544 U.S. 125 S.Ct. riam for 2088, 2092, (2005) (per 161 L.Ed.2d 982 cu riam). Id.; (2005). see 28 C.F.R. 0.5 324 argues necessary

Medellin that the Avena decision ation’ ... Texas courts is and the are compliance President’s memorandum the United States’ inter- binding preempt federal law 5 Section obligations.”27 national The United States Supremacy under the of Clause the United also that “Section would contra- avers 5 Alternatively, States Constitution.24 con- vene implementation the President’s of tending requirements that he the meets of treaty and obligations, federal law would 5(a)(1), claims Section Medellin the preempt operation its in the circumstances Avena decision and the memo- President’s of this case.”28 are previously randum unavailable factual legal

and bases because neither avail- was II. CONTEXTUAL BACKGROUND application.25 when he able filed his first Countering arguments, Medellin’s the A. Treaties State contends that the Avena decision compacts Treaties are between

and the memorandum President’s do not sovereign nations.29 In the international requirements meet the of Section 5 and do arena, compliance treaty depends with a Finally, override not it.26 the United upon “the interest and honor” of that, the States as curiae asserts al- amicus treaty’s member nations.30 mem though Avena is enforceable in When courts, ber a treaty, nation violates another mem States Medellin is to re- entitled and of the ber nation cannot obtain redress from the view reconsideration merits of judicial body violating “to of the nation his Vienna Convention claim the extent but may that his claim through relies on President’s seek enforcement “interna and tional and negotiations determination that ‘review reconsider- reclamations.”31 31.Id.; Robertson, Applicant Whitney 24. Br. of 124 at 26-27. see also v. U.S. 190, 456, 194, (1888) ("If 31 386 8 S.Ct. L.Ed. at 52-53. country treaty made with which the is is legislative dissatisfied with action of the Respondent 26. Br. of at 20-21. department, may present complaint it its government, executive head 27. Br. of United States as Amicus at Curiae may take such other measures as it deem protection essential for the its interests. redress.”); can afford Baldwin courts no Id. at 15. 678, Franks, 656, v. 7 S.Ct. 120 U.S. J„ (1887) (Field, dissenting) 32 L.Ed. 766 Curtiss-Wright Export 29. United States v. (when treaty between States and the United 304, 318, 216, Corp., U.S. 299 57 S.Ct. 81 compact county another is considered as a (1936) ("operations of the L.Ed. nation nations, opposed between as to the law the [foreign] governed by territory must be such treaties, land, treaty matter a violation of is a "to understandings international by negotiation settled between execu- compacts, principles international governments, departments tive two 30, law."); Egan, v. 284 U.S. Santovincenzo being government liberty to take such each at 40, 81, (1931); 52 S.Ct. 76 L.Ed. 151 B. measures for redress it deem advisa- States, 583, Co. Altman & v. United U.S. Neilson, (2 Pet.) 253, ble.”); v. 27 U.S. Foster 593, (1912); L.Ed. 894 Head 32 S.Ct. (1829) ("The judiciary is not L.Ed. Robertson), Money (Edye Cases v. 112 U.S. department government, to which (1884); 5 S.Ct. 28 L.Ed. against foreign the assertion of its interests State, (Tex.Crim. 15-16 Rocha 16 S.W.3d confided; commonly powers duty is and its App.2000). according upon rights, to decide individual Cases, depart- principles political which Money those 30. Head established.”). the nation have ments of

325 op- make them legislation to Treaties, require the no entered into have the erative, they extent the to that the States with President of United enact- legislative of a the force and effect super-majority of a United consent Senate,32 may modify provi- such incorporated Congress into the States are ment. sions, they to bind the country pursuant law of our so far as United domestic Supremacy States, altogether.36 the Clause of the United them supersede or Constitution, “all commands: States which an act of self-executing treaty and aWhen made, made, Treaties or which shall be subject mat- the same Congress concern States, Authority the under ter, to both unless give courts should effect Land; supreme Law of the shall be the language the of one would violated.37 Judges every shall be and the State inconsistent, are the But when “the two thereby, any Thing bound the Constitu control the other.”38 one last date will Contrary tion or Laws of State to the Addressing relationship be “placed are notwithstanding.”33 Treaties treaties, Supreme tween state law and footing” legislation as enacted same foreign “[TJreaties Court has stated: Congress, the United States and while carefully construed so as nations will be other,34 superior neither both are authority and derogate not to from the subject to the United States Constitution.35 this nation jurisdiction of the States of In describing relationship between clearly necessary unless effectuate Congress, Supreme treaties and acts of law policy.”39 Accordingly, national “state explained the difference between with, yield when it is inconsistent or must self-executing treaties that do not contain of, treaty impairs policy provisions and those that do: provisions compact agree or of an international stipulations When are not self-exe- 40 ment.” cuting they only pursu- can be enforced recog Supreme Court has legislation carry ant them into treaty may certain effect, nized that a contain and such much legislation is as grant judicially enforceable subject by provisions repeal to modification and rights residing to a national Congress legislation upon any other cases, subject. country.41 In under treaty stipula- If the another such contains is, Clause, provisions tions which are self-executing, Supremacy 194, 456; II, 2, 2; Whitney, see 32. U.S. art. cl. B. 36. 124 U.S. at 8 S.Ct. see also Const, Co., 600, 593; 224 Oregon, Altman & U.S. at 32 S.Ct. v. 126 S.Ct. at also Sanchez-Llamas Bidwell, 1, 194, Cases, v. De Lima 182 U.S. 21 S.Ct. (2006); Money Head 112 U.S. at 2680 743, (1901). 45 L.Ed. 1041 599, 5 S.Ct. 247. VI, 2; 33. U.S. art. cl. see also Head Const, Whitney, U.S. at 8 S.Ct. 456. 37. 124 Cases, Money 112 U.S. at 247. 5 S.Ct. Whitney, at S.Ct. 124 U.S. 38. Id. Covert, 1, 17, 35. Reid v. 354 U.S. 77 S.Ct. Pink, 203, 230, v. 315 U.S. 39. United States (1957) (plurality opin- 1 L.Ed.2d 1148 (1942). 86 L.Ed. 796 258, 267, ion); Geofroy Riggs, De 133 U.S. (1890); Cherokee 10 S.Ct. L.Ed. at 62 S.Ct. 552. Tobacco, Wall.) 616, 620, (11 20 L.Ed. (1871) ("a treaty change cannot the Con- Cases, Money Head 112 U.S. at stitution or be held valid if it be in violation of Rocha, instrument.”); n. 16 S.W.3d 326 treaty placed catego- are in the “same B. The United Nations and the Charter

ry Congress” as other laws of and there- Statute the International Court fore, “subject Congress are to such acts as of Justice enforcement, modification, may pass for its The United Nations was formed when treaty or a repeal.”42 When confers Charter, its drafted in San Francisco at enforceable, rights judicially that are a the United Nations Conference on Inter- treaty court will look “to the a rule of Organization, by national was ratified decision for the case before it as it would States, China, Republic United However, recently to a statute.”43 as we “ France, the Union of Soviet Socialist Re- noted, there is a presumption ‘inter- Britain, Ireland, publics, Great Northern agreements, directly national even those majority signatory and a of other nations.46 benefitting private persons, generally do States, respect With to the United private not rights provide create for a 24, Charter entered into force on October private cause of action in domestic ”44 1945. Article 92 the ICJ as establishes courts.’ Numerous federal circuit judicial “the principal organ of the United courts of appeals acknowledged have also “in operates Nations.”47 The ICJ accor- presumption, treaty finding rights dance with the [of annexed Statute belong only,45 member nations 93, therefore, Article “All only ICJ]....”48 Under Mem- through be enforced ipso bers of the Nations are political diplomatic international chan- facto nels. parties to the Statute of the International 599, Garcia, 165, (3d 1997) 42. Id. at 5 S.Ct. 247. v. 109 F.3d 167 Cir. ("Because agreements treaties are between nations, ordinarily may Id. individuals not chal lenge treaty interpretations in the absence of State, 469, (Tex. express provision treaty v. 173 an Sorto S.W.3d 478 within the nation.”); Crim.App.2005) (quoting brought by signatory action a (Third) Restatement Foreign States, (Panama) Goldstar S.A. v. United 967 Relations Law of the United States a, 965, (1987) (4th Cir.1992) (“International citing cmt. 907 at 395 Ham F.2d 968 33, (D.C.Cir. Rumsfeld, presumed rights dan v. 415 F.3d 38-40 treaties are not to create — 2005), enforceable.”); grounds by privately overruled on other U.S. that are Matta-Bal -, 2749, Henman, 255, (7th 165 L.Ed.2d 723 lesteros v. 896 F.2d 259 State, (2006)); 1990) ("It Hinojosa 4 see also v. S.W.3d Cir. is well established that individ 240, 1999) (Tex.Crim.App. ("Generally, standing challenge 252 in have violations uals no standing bring in the of a dividuals do not have suit of international treaties absence involved.”). sovereigns treaty protest But based on an international when sover Sanchez-Llamas, (Brey eign are involved in the dis see 126 S.Ct. at 2697 nations er, J., presump pute.”). dissenting) (stating "no such exists.”). tion Sorto, (citing at 478 n. 31 173 S.W.3d Jimenez-Nava, note, introductory v. 243 F.3d 46. U.N. Charter art. United States Li, 1031; (5th Cir.2001); para. Facts 195 United States v. 206 59 Stat. see also Basic Nations, Cir.2000) Boudin, (1st (Selya F.3d & about the United The United Na- JJ., http://www. concurring); Lujan Organization, available at United States ex. rel. tions: (2d 1975); un.org/aboutun/basi cfacts/unorg.htm; Gengler, v. F.2d Cir. Rosenthal, Patterson, The Oxford 50th Anniver- United States v. 793 F.2d Charles (Oxford (11th Cir.1986)); sary 7-21 Book of the United Nations see also United States Press) (1995). (6th University Emuegbunam, Cir. 268 F.3d 2001) ("courts presume rights that the creat treaty belong 47. U.N. Charter art. 92. ed an international private individual cannot state and that them.”); Saroop ex rel. enforce United States article seventy-nine is a the na Convention The Statute of of Justice.”49 the ef establishes, treaty “promotes that among things, other multilateral ICJ (which in for in- organization, competence delivery of consular services court’s fective jurisdiction), procedures.50 countries, to consular including cludes its access eign provides of the Statute country Article 34 is a citizen of one assistance when be- “[o]nly may parties states be cases custody arrested, to prison committed and, 36(1), Article fore the under [ICJ] trial, any other or detained pending ” jurisdiction has over “cases the court Mexico, country.”56 in another manner refer to it and all mat- parties which the to its deposit first countries one of the provided for ... in trea- specifically ters Nations Secre ratification with the United ties and conventions force.”51 Under opened tary-General after the Convention 59, only decision binds Article ICJ 1961, 18, April became signatures for on case.52 Article 94 parties particular to March 1967.57 bound Convention states that of the United Nations Charter Senate, of the With the advice and consent with comply each member “undertakes to Convention, ratified the the President the decision of the International Court of binding became on the United which par- it Justice case to which 24,1969.58 States on December 53 ty.” comply If a to with the party fails signatory Article that no “ensure[s] decision, party “the other have ICJ’s consular access and assis- nation denies Council, Security recourse to the which country’s citizens travel- tance to another may, necessary, if it deems make recom- foreign country....”59 in a ing residing upon mendations or decide measures be Article 36 reads as follows: give judgment.”54 taken to effect to the facilitating the exer- 1. With a view to relating C. The Vienna Convention on Consular functions cise of consular Optional Relations and the Protocol sending State: nationals Concerning Compulsory Settle- (a) free to consular officers shall be Disputes ment of with nationals of the communicate sending State and to have access The Convention on Re Vienna Consular sending them. Nationals of Nations adopted lations was the United the same freedom State shall have Diplomatic Conference on Intercourse and to communication with respect April Immunities on 1963.55 Vien 477; Sorto, San S.W.3d at see also para. 56. Id. art. chez-Llamas, ("The Conven 126 S.Ct. at 50. Statute of the International Court of Jus- regulating various of 79 articles tion consists 26, 1945, June 59 Stat. 1031 tice arts. activities.”). aspects of consular ICJ]. Statute of the [hereinafter 57. Vienna Convention. 36(1). 51. Id. art.

52. Id. art. 59. Id.; Lombera-Camorlinga, States v. Cir.2000); (9th also see 206 F.3d 94, para. 53. U.N. Charter art. Tadesse, Is Tenagne The Breard Aftermath: 94, para. Listening?, & 54. Id. art. 8 Sw.J.L. the U.S. Am. Trade (2002) (discussing history 429-30 Relations, 55. Vienna Convention on Consular Convention). Vienna 24, 1963, Apr. 596 U.N.T.S. 261 U.S.T. (ratified by the United States on Nov. Sorto, 173 S.W.3d at 477. Convention], 1969) Vienna [hereinafter

and access to consular conformity officers of with the regula- laws and State; sending State, receiving subject tions however, proviso, the said (b) if he requests, competent so regulations laws and must full enable authorities of the receiving State given effect to purposes shall, delay, without inform the con- which rights accorded under this if, post sular of the sending State Article are intended.60 district, within its consular a nation- al of that State is or arrested com- becoming signatories In addition to to prison custody mitted to pend- or to Convention, the Vienna Mexico and the ing trial any or is detained in other parties United States became to Op- Any manner. communication ad- tional Concerning Compulso- Protocol dressed to post by the consular ry Disputes. Settlement of Article I of the arrested, person in prison, custody Optional “Disputes Protocol states: arising or detention shall also be forwarded out interpretation application of the or by the said authorities without de- compul- the Convention shall lie within the lay. The said in- authorities shall sory jurisdiction of the International Court form person concerned without of Justice and accordingly brought delay rights of his under this sub- application before the an Court made paragraph; by any party to the a dispute being Party (c) consular officers shall present have the to the Although Protocol.”61

right to visit a national of the send- recently United States withdrew from the ing prison, custody Protocol, State who is in Optional the United States has detention, to agreed converse and corre- “discharge its obli- inter-national spond with him arrange gations and to ... by having under the decision legal representation. They his give shall State courts effect [Avena] to the right also have to visit na- decision....”62 sending tional of the State who is D. International Rul- Court Justice

prison, custody or detention their ings on Article 36 of the Vienna in pursuance judgment. district of a Involving Convention the United Nevertheless, consular officers shall States taking refrain from action on behalf in prison, of a national who is custo- The ICJ has encountered series dy expressly if op- detention he against cases filed the United States poses such action. alleging other nations violations Article rights paragraph 2. The referred to in 36 of the Vienna Paraguay Convention. citizen, of this Article shall be exercised filed the first case on behalf of its Convention, State, 10, 2005, Daily Briefing, 60. Vienna art. 36. Press Mar. Ereli, Deputy Spokesman, Adam at available Optional Concerning Compul- Protocol http://www.state.gOv/r/pa/prs/dpb/2005/43225. 18, 1961, sory Disputes, Apr. Settlement of recognition optional (stating htm "in of the I, Art. 21 U.S.T. T.I.A.S. No. 6820 [here- commitments, protocol and our international Optional inafter Protocol]. the President has that the United determined comply judgment will with the States Medellin, Memorandum,- Presidential International Court of Justice and that we will (O’Connor J., dissenting); at 2101 Letter Gonzales, review—our state courts will review—the Attorney from Alberto Gener- U.S. al, Abbott, to.”). Greg Attorney responded Texas General cases that ICJ 5, 2005); (Apr. Department United States (2) nationals; the United issued tained Francisco Breard.63 The ICJ Angel 36; Article comply with failed to order, request- States Paraguay’s request, an (3) LaGrands, applied stay Breard’s ing the United States of the United default rules procedural a decision.64 until it could render execution intended un- rights order, prevented origi- Breard filed an States on that Based full ef- being given from der Article 36 corpus of habeas petition nal for writ that the further stated The court in the fect.72 stay his execution application States, own choos- “by means of its of the United States.65 Supreme Court review and reconsidera- ing, shall allow the Supreme found that Breard’s by tak- and sentence tion of the conviction procedurally defaulted and de- claim was rights the violation of ing account of petition application; Breard nied his in that Paraguay then re- set forth Convention.”73 was later executed.66 pro- quested that the ICJ discontinue the LaGrand, years three after Almost thus, the did ceedings prejudice; ICJ decision in Avena. handed down its ICJ regarding a decision Breard.67 not issue fifty other to Medellin and regard With nationals, filed, concluded Mexican ICJ Subsequently, two more suits were obligations breached its v. States Republic Germany United United Federal of 1(b) (LaGrand)68 36, by failing paragraph Article and Mexi- under States America of (Avena).69 them, their arrests and after America to inform co v. United States of to contact the LaGrand, delay, right of their Germany proceed- In initiated without forty- And in post.74 Mexican consular ings in on behalf of two of its the ICJ case, cases, citizens, including nine Medellin’s brothers Karl and Walter LaG- rand, States violated of murder court found that who had been convicted (c) 1(a) 36, through paragraphs and sentenced to death in Arizona.70 Ger- Article (1) notify post the consular failing to: many alleged that the United States violat- (2) detention; offi- enable consular by their ed Article 36 of the Vienna Convention and have access to communicate with failing to inform the LaGrands of their cials (3) them; officials enable consular consular offi- right to contact German also found them.75 The court Although were to visit with cial.71 both LaGrands case, in to thir- addition judg- its that in Medellin’s executed before the ICJ issued others, ment, found, States violated ty-three other the United among the ICJ still (c) (1) by preventing paragraph of the Article things, that: Article 36 Vienna timely being from able rights individual on de- consular officials Convention confers 31, 2004). (Mar. Concerning I.C.J. 128 63. the Vienna Convention on 69. 2004 Case (Para. U.S.), Application Consular Relations 3, 1998; Apr. 1, 10, ¶¶ Republic Paraguay, LaGrand, see 14. 2001 I.C.J. 70. Breard, 1352. 523 U.S. at 118 S.Ct. also m, 71. Id. 38. Breard, 118 S.Ct. 1352. 64. ¶¶ LaGrand, I.C.J. 72. 65. Id. 375-76, 378, Id. at ¶ 128(7). 73. Jd. Concerning the Vienna Convention Case U.S.), (Para. v. Order of 10 Relations Consular ¶¶ Avena, 106(1), 153(4). November 1998-Discontinuance. ¶¶ 106(2)-(3), 153(5)-(6). (June 2001). 68. 2001 I.C.J. 104 arrange for legal representa- their citizens’ Constitution and the laws of the United tion.76 America, States of the United will discharge States its inter-national After addressing the United States’ and obligations In- under the decision of the arguments Mexico’s concerning appro- ternational Court of Justice in ... [.Ave- violations, priate remedy for the Article 36 na], by having give courts State effect the court concluded “that the ‘review and gener- decision accordance with prescribed by reconsideration’ it in the principles al comity cases filed LaGrand case should be effective.”77 Di- the 51 Mexican nationals addressed recting provide the United States to re- that decision.80 view and reconsideration of the convictions sentences the Mexican nationals III. ANALYSIS rights whose individual under the Vienna violated,78 Convention had been the ICJ A. Avena and The Supremacy Clause stated: Medellin claims that the ICJ deci rights guaranteed under the Vienna binding sion in Avena is federal law that treaty rights Convention are which the preempts Section 5 of the Texas Code comply United States has undertaken to Criminal Procedure. The and the State with in relation to the individual con- disagree. United States as amicus curiae cerned, irrespective process of the due matter, As an initial recognize while we rights under United States constitution- competing the arguments before us con- regard, al law. In this the Court would cerning private- whether Article 36 confers point out that what crucial in is the ly rights, enforceable a that resolution to review and process reconsideration is required issue is not for our determination procedure guar- the existence of a which in of whether Avena is enforceable this weight antees that full given is the by the Court. Our decision is controlled violation in rights of the set forth the Supreme opinion Court’s recent in San- Convention, may Vienna whatever be Oregon, chez-Llamas v. accordingly, the actual outcome of such review and binding we hold that Avena is not federal reconsideration.79 preempt law and therefore does not Sec- E. The Presidential Memorandum tion 5. Supreme

After the United States Court pending While Medellin’s case was be- case, in granted certiorari the Presi- us, Supreme granted fore Court certio- controversy in weighed dent on the sur- Oregon81 rari in Sanchez-Llamas rounding by issuing Avena a memorandum Johnson,82 consolidating Bustillo v. General, Attorney to the United States “(1) two cases to consider: whether Article states, pertinent part, which in as follows: grants rights 36 of the Vienna Convention determined, in a pursuant may by I have to the au- that be invoked individuals (2) thority by judicial proceeding; suppres- in me as President whether vested U.S.-, ¶¶ 153(7). 106(4), 163 L.Ed.2d Id. 81. 126 S.Ct. (2005). ¶ Id. U.S.-, L.Ed.2d 126 ¶¶ 140-41. (2005). ¶ Id. 139. 80.Presidential Memorandum. at those Looking remedy putes for a ICJ.”90 proper of evidence is

sion (3) determined 36; an the Court agreements, and whether of Article violation purpose structure or may “[njothing deemed forfeited in the Article 36 claim be interpretations because a that its procedural suggests rules under state the ICJ at tri- on our to raise the claim be conclusive defendant failed intended to were in under issued its decision noted that al.”83 The Court The Court courts.”91 ICJ, of its 2005 during the last week an ICJ these cases of the Article 59 of the Statute it un- Although the found term.84 Court to that case only parties decision binds Article 36 necessary to decide whether result, bound and, not even the ICJ is aas rights,85 enforceable grants privately Reviewing Arti- prior its decisions.92 exclusionary rule is not held that the Statute, the Court of the cles 59 and 34 of Article 3686 and remedy for violations purpose “principle that the also considered Breará, stating holding its reaffirmed dis- particular to arbitrate [of ICJ] Breará, conclude, ... as we did in “We governments.”93 national putes between claims under Article 36 of the Vienna that Article pointed out Finally, the Court may subjected to the same Convention 94(2) “con- Nations Charter apply gener- default rules that procedural international templates quintessentially ally to other federal-law claims.”87 nation aggrieved an remedies” because Security recourse from seek addressing petitioner Bustillo’s

When nation fails to com- when another Council revisit its argument that the Court should According decision.94 ply with ICJ light the ICJ’s decision Breará “ ”95 meaning placed ‘great weight’ Avena, decisions LaGraná Execu- on the Vienna Convention are Court concluded that ICJ decisions “ Branch, then noted tive the Court only ‘respectful entitled consider- ”88 the President has ordered though even In support ation.’ of this determina- Avena, the give effect to state courts to tion, constitutionally cited its the Court position that States has taken position mandated the absolute authori- as binding are not on United ICJ decisions ty defining treaty’s meaning as federal ex- Finally, the Court States courts.96 against law89 and stated that “[i]t giving about “decisive pressed doubt rati- background the United States Avena when the fied, weight” to LaGraná and gave and the Senate its advice from to, has since withdrawn that United States agreements consent the various Optional dis- Protocol.97 govern referral of Vienna Convention Sanchez-Llamas, Id. 83. 126 S.Ct. at 2677. 91.

84. Id. 92. Id.

85. Id. 93. Id.

86. Id. at 2682. (original emphasis). 94. Id. at 2685 Id. at 2687. Oregon, 366 U.S. (quoting Id. Kolovrat Breard, (quoting Id. at (1961)). 187, 194, 81 S.Ct. 6 L.Ed.2d 1352). Id. Id. at 2684. 97.Id. “ ”98

Granting ‘respectful consideration’ prohibitions against filing successive decisions, to the LaGrand and Avena petitions habeas yield must also in the Court held that interpretation “the ICJ’s face of Article 36 claims.105 cannot plain import overcome the of Arti- The Court then stated that the ICJ cle 36.”99 Turning prior to its decision interpretation “sweeps broadly”106 too Breará, the Court stated: procedural “the 36(2) requires because Article also “ rules of law generally govern domestic 36(1) rights Article ‘be exercised in implementation of an international trea- conformity with regulations the laws and ty.”100 plain The language of Article ”107 receiving of the State.’ 36(2) 36(1) Article rights “shall be —that case, In this we are bound the Su- in conformity exercised with the laws and preme Court’s determination that de- ICJ regulations receiving of the State” and binding cisions are not on United States regulations those “laws and must en- result, Medellin, courts. As a even as one able full effect to given” to the intended decision, the named individuals in the 36(1)101— purpose rights in Article cannot show that Avena requires us to set means that procedural rules of ap- default aside Section 5 and review and reconsider ply to Vienna just Convention claims his Vienna Convention claim. they apply to claims raised under the Unit- ed States Constitution.102 The Court rec- B. The Presidential Memorandum and ognized important procedural role that Supremacy Clause play justice default rules in our adversarial Aligned on the effect of the Presi system103 and disagreed with the ICJ’s memorandum, dent’s both Medellin interpretation of the “full language effect” the United States as amicus curiae con 36(2).104 in Article Noting problems February tend that the President’s interpretation associated with the ICJ preempts memorandum Section 5 language, the “full effect” the Court stat- and, result, requires as a us to review and ed: reconsider Medellin’s conviction and sen trump only Article 36 claims could prescribed by tence as Avena. In opposi rules, procedural default but num- tion, the State challenges, among other ber of other requiring parties rules things, the effect of the memorandum’s present legal their claims at the appro- language. substantive priate adjudication. time for If the argu-

State’s failure to inform the United States’ and Medellin’s defendant presume rights generally his Article 36 ments that the President’s memo- excuses comply Attorney the defendant’s failure to randum to the United States rules, procedural relevant presum- then General amounts to an executive order.108 ably this, rules disputes arguing such as statutes of limitations The State that the Breará, 375, (quoting 98. Id. 523 U.S. at 104. Id. at 2686. 1352). S.Ct. 105. Id.

99. Id. 106. Id. Id. Convention, (quoting Vienna art. Convention, 36(2). 36(2)). 101. Vienna art. Sanchez-Llamas, 1502, 1504, generally §§ 126 S.Ct. at 2685. See U.S.C. 1505(a)(1) (2000) (including "Presidential orders, proclamations except Id. at 2685-86. and Executive and the several any government manda- national memorandum does not contain govern- the federal tory language: Describing “While the President’s states.”111 affairs, rightly memo shows the intent and deter- over internal powers ment’s mination of the United States to enforce acknowledged: “The Supreme Court has provisions the consular Vienna Con- govern- the federal broad statement vention, ... the memo does not order powers except no those ment can exercise disregard controlling prece- state courts to in the specifically enumerated Constitu- dents, statutory provisions, or state state tion, implied powers as are nec- and such procedural default rules.” The State’s carry into effect the essary proper and merit, position is not without but because categorically true powers, enumerated is we conclude that has not shown Medellin only in of our internal affairs.”112 respect that the President’s memorandum entitles affairs, regard With to external the federal reconsideration, him to review and we will power; it government possesses exclusive assume, deciding, without the memo- govern- all powers is “vested with randum constitutes an executive order.110 maintain an necessary ment effective international relations.”113 in control “Governmental over affairs, ternal Presi- acting affairs is distributed between the When external having general applicability King: those not and le- The Use and Abuse Executive Orders America, 1, Legis. gal only against effect or effective Federal Modem-Day 28 J. 6-7 agencies persons capacity or in their offi- (2002) as study (stating congressional "a cers, agents, employees or thereof ...” as has defined executive orders as 'directives or published documents that must be in the Fed- by the President’ that have the 'force actions ("Document Register); § eral 1 C.F.R. 1.1 when 'founded on the au- and effect of law’ having general applicability legal and effect thority of the President derived from the ” proper means document issued under noting Constitution or a statute’ as well as authority prescribing penalty or course of orders, “[presidents may that in addition to conduct, conferring right, privilege, authori- proclamations, presidential signing also issue ty, immunity, imposing obligation, or or statements, memoranda, presidential or Na- applicable general pub- and relevant or Directives, Security tional Presidential lic, class, persons members of a in a locali- among types presidential other directives” ty, distinguished from named individuals however, stating, general, and the dif- "[i]n ...”); 5.2(a) (in- organizations 1 C.F.R. form, typically ference one of not sub- cluding proclamations "Presidential Ex- stance.”); Youngstown & Tube see also Sheet series, ecutive orders in the numbered 579, 583, Sawyer, v. 343 U.S. 72 S.Ct. Co. each other document that the President sub- (1952). 96 L.Ed. 1153 publication publish- mits for or orders to be among required ed” documents that are to be Belmont, 111. United States inspection Register filed for with the Federal (1937); U.S. 81 L.Ed. 1134 published Register). in the Federal X; Curtiss-Wright, amend. see also Const, Respondent 109. Br. of at 41. U.S. at 57 S.Ct. 216. Stack, Statutory 110. See Kevin M. Presi- Curtiss-Wright, 299 U.S. at dent, (2005) (ob- 90 Iowa L.Rev. 546-47 216; Belmont, 301 U.S. at see also serving legal require- that "there [are no] 57 S.Ct. 758. types ments on the of directives that order, president must issue an executive as 318, Curtiss-Wright, 113. 299 U.S. at 57 S.Ct. opposed headings, to other such as Brooks, 378, (quoting 216 Burnet v. 288 U.S. memorandum, directive, proclamation, or 396, 457, (1933)); 53 S.Ct. 77 L.Ed. 844 see stating particu- and “the determination” Pink, 233, 62 552 also 315 U.S. at S.Ct. conveyed lar form which a directive is ("Power effect, by affairs not shared over external is legal may does not determine its States; gov- it is vested with the national nothing reflect choice.”); more than a bureaucratic Branum, Davidowitz, exclusively.”); Tara L. President or ernment Hines v. 334 “plenary power grouping” “presidential pow-

dent ... fied because has exclusive organ govern- fluctuate, as the sole of the federal depending ers are not fixed but ment in the field of rela- international disjunction conjunction or upon their 114 pow- tions.” And while the President’s of Congress,”121 those Justice Jackson re- er “must be exercised subordination to following: lated the applicable provisions of the Constitu- (cid:127) “authority The President’s is at its tion,” power necessarily such is depen- “[wjhen maximum” the President acts specific congressional dent on authoriza- express implied to an or au- pursuant President, tion.115 can example, for Congress.”122 thorization of In such agreements enter into executive with for- circumstances, power the President’s eign nations without the advice and con- possesses “includes all that he in his agreements sent of the Senate.116 Valid right plus Congress own all that can are accorded the same status as treaties117 delegate.”123 and, consequently, may preempt state law “ (cid:127) if they ‘impair the effective exercise of power The President’s is in “a zone of ”118 foreign “[wjhen Execu- policy.’ Nation’s twilight” the President acts by tive orders issued the President must congressional grant absence of either a by an act of Congress be authorized authority.” act- or denial of When the Constitution.119 ing twilight,” in “a zone of the Presi- dependent is on “his own inde- dent Jackson, concurring opin- in his

Justice “Congress pendent powers.”125 And in Youngstown Company ion Sheet & Tube authority.”126 have concurrent scope of Sawyer, sought v. to define the authority be- The “distribution” power.120 Recognizing President’s Congress offering over-simpli- he was “a somewhat tween the President 52, 63, 399, VI, C1.2) (art. premacy the Consti- 312 U.S. 61 S.Ct. 85 L.Ed. 581 clause (1941) ("The compacts and ... en- tution. Such international federal Government Assignment responsibility agreements Litvinov have a trusted with full and exclusive as the dignity.”). affairs with sover- similar conduct of eignties.”). Garamendi, 419, 118. 539 U.S. at 123 S.Ct. 320, Curtiss-Wright, 299 U.S. at 57 S.Ct. Miller, Zschernig (quoting 389 U.S. 440, 664, 429, 88 S.Ct. 19 L.Ed.2d 683 (1968)). 115. Id. Co., YoungstownSheet Tube 343 U.S. at & Garamendi, 116. Am. Ins. Ass’n v. 539 U.S. 585, 72 S.Ct. 863. 396, 415, 123 S.Ct. 156 L.Ed.2d 376 (2003) ("the authority President has to make J„ (Jackson, 120. Id. at S.Ct. 863 countries, agreements' with 'executive other concurring). ap- requiring no ratification the Senate Moore, proval by Congress[.]”); Dames & 121. Id. at 72 S.Ct. 863. ("prior cases of U.S. at 101 S.Ct. 2972 recognized this Court have also that the Presi- 122. Id. dent have some measure of does agreements without ob- enter into executive 123. Id. taining of the Sen- the advice and consent Belmont, ate.”); 301 U.S. at 124. Id. at 72 S.Ct. 863. Garamendi, 2374; Pink, ("A 315 U.S. at S.Ct. 552 treaty under the su- 126. Id. is a 'Law of Land’ they power of executive may “[Cjongres- problems be “uncertain.”127 crete inertia, quies- actually present sional indifference themselves”133—resonates sometimes, at as a cence least today. with us matter, enable, invite, if practical the President has We hold on independent presidential

measures by authority exceeded his constitutional responsibility.”128 intruding independent powers into the (cid:127) “power The President’s is at its lowest judiciary. By stating “that the United ebb” takes “[w]hen President discharge its inter-national obli States will incompatible measures with the ex- gations under the decision of the Interna pressed implied will of Con- ], by in ... tional of Justice [Avena gress.” acting at the “lowest When give courts effect to the deci ebb,” having State rely only the President “can [,] determina upon his own mi- sion ... the President’s powers constitutional ”134 powers effectively nus constitutional of Con- to that deci analogous tion is gress pow- Sanchez-Llamas, over the matter.”130 Such Supreme In sion. er, advised, Justice Jackson “must be judicial “power clear that its Court made caution, scrutinized with for what is at duty say ‘to what the law includes the ”135 equilibrium is the stake established power, according And that is.’ system.”131 our constitutional Court, authority includes the to determine meaning treaty of a as a “matter of The President’s memorandum cites his import law.”136 The clear of this is federal authority under the Constitution and laws mind, the President cannot dictate to the United States.132 With this judiciary apply we must law to or how to decide whether the President has what power by exceeded his directing give applicable us law. interpret the effect to the Avena decision under Medellin and the United States

principles comity. The President’s di- argue authority is at the President’s rective, which is dependent on his so, doing rely its maximum. In both affairs, act in foreign both and domestic foreign the President’s inherent affairs unprecedented. What Justice Jackson agreements into power to enter executive proclaimed Youngs- his concurrence in nations as to settle claims Company fifty-four town Sheet & Tube Supreme Court Unit recognized years ago judiciary “may be sur- —that Belmont,137 v. States v. prised poverty really at the useful and ed States Pink,138 Regan,139 Moore v. unambiguous authority to con- Dames & applicable precedential episodic, afford little value Id. 127. cases."). subsequent Id. 128. 134. Presidential Memorandum. Id. 129. Sanchez-Llamas, (quot- 126 S.Ct. at 2684 Madison, ing Marbury U.S. Id. 1 Cranch 137, 177, (1803)). L.Ed. 60 Id. at 72 S.Ct. 863. 132. Presidential Memorandum. 758, 81 L.Ed. 137. 301 U.S. 57 S.Ct. 863; Moore, Id. at 72 S.Ct. Dames & ("the deci- 453 U.S. 101 S.Ct. rare, 86 L.Ed. 796. the Court in area have been 138. sions of American Insurance Association Gara diplomatic establishment of relations be- tween the two.145 mendi.140 We therefore by begin review ing these cases. Supreme disagreed with the The Court holding giving lower court’s effect to Belmont, corporation, In a Russian Pe- re- the Soviet nationalization decree would Works, deposited funds trograd Metal sult in “an act of confiscation” and would banker, City York private with a New “contrary controlling public poli- to the Belmont.141 The Soviet Government cy The of the State of New York.” “dissolved, liquidated and terminated Assignment found that the Litvinov Court oth- [Petrograd along Metal Works compact was an international between the ap- corporations], er and nationalized governments States Soviet and assets propriated property all of its treaty’s supremacy that the rule of a over situated, in- every and wherever kind applies equally to an internation- state law cluding deposit account with Bel- compact.147 respect al our “[I]n mont.”142 The Soviet Government later generally, disappear. relations state lines it assigned all amounts owed to from purposes As to such the State of New United States nationals United York does not exist.”148 States.143 Pink, Supreme recognized In Assignment’s supremacy the Litvinov over [A]ssignment The was effect- [Litvinov] a New York court order.149 The state by exchange diplomatic ed corre- Pink, court had directed New York’s Su- spondence between Soviet Govern- Insurance, pay foreign perintendent of ment and the Branch of [Executive the] previously creditors’ claims with assets purpose The was to United States. by held the First Russian Insurance Com-

bring about a final settlement of the ruled that the United pany.150 The Court claims and counterclaims between the under was entitled to those assets States Soviet Government and the United the So- Assignment the Litvinov because States; agreed and it was that the Sovi- was the successor of the viet Government steps et Government would take no Company.151 First Russian Insurance against enforce claims American nation- observed that the United The Court als[.]144 the Russian Gov- against claims States’ assignment accompanied was long- nationals were ernment and its to the United recognition standing impediments of the Soviet Government Govern- recognition and the of the Soviet the President of the United States States’ 654, 2972, Belmont, 330, at 57 S.Ct. 758. U.S. 101 S.Ct. 69 L.Ed.2d 146. Id. at 57 S.Ct. 758. 140. 539 U.S. L.Ed.2d 376. 330-31, 147. Id. at 57 S.Ct. 758. 325-26, U.S. at 57 S.Ct. 758. 141. 301 148. Id. at 57 S.Ct. 758. Id. at 57 S.Ct. 758. at 62 S.Ct. 552. 149. 315 U.S.

143. Id. 62 S.Ct. 552. 150. Id. Id.; Pink, 222-23, 62 S.Ct. 315 U.S. at previous holding regarding (discussing its Belmont). S.Ct. 552. Assignment 151. Id. at the Litvinov Iran, its instru- Acknowledging ty ment.152 the Presi- of the Government in the field of mentalities and controlled entities and the implied powers dent has relations, Iran which are or become the Court stated: Central Bank of jurisdiction subject to the judgment political It was the of the de- under the International Emer- States’” partment recognition that full of the So- (IEEPA).157 gency Economic Powers Act required viet settlement Government all outstanding problems including it hostages Iran released the after en- Recognition claims of our nationals. agreement into an with the United tered and the Litvinov Assignment were inter- claims, States to settle their which includ- “ dependent. usurp We would the execu- litigation ed the termination of ‘all tive function if we held that that decision party between the of each Government was not final and in conclusive other, bring the nationals of the and to courts.153 about the settlement and termination of all through such claims binding arbitra- Belmont, Relying on the Court declared ”158 Additionally, tion.’ the United States Assignment the Litvinov has “simi- obligated was to transfer all Iranian assets lar dignity” treaty Suprem- to a under the in satisfy the United States to a bank to acy Clause154 and noted “state law any against award made the tribunal yield with, must when it is inconsistent or Iran.159 impairs policy provisions or of ... an compact

international agreement.”155 or also President issued several execu- The Court went on to conclude: tive orders “implementing terms of the agreement.”160

The action of New York in this case in rejection amounts substance to a of a These revoked all per- Orders licenses part policy of the underlying recognition mitting ‘any right, power, the exercise of by this nation of Soviet Russia. Such privilege’ regard to Iranian power is not accorded a in State our funds, securities, deposits; ‘nullified’ system. constitutional permit To it all non-Iranian interests such assets would be to sanction a dangerous inva- acquired subsequent blocking or- authority.156 sion of Federal ...; required der those banks hold- ing Iranian assets to transfer them ‘to Moore, In Dames & diplomatic when York, the Federal Reserve Bank of New hostage officials were held after the sei- to be held or transferred as directed Tehran, zure of the American Embassy Secretary Treasury.’161 Iran, the President issued an executive Later, order that “blocked the removal or trans- the President issued an executive “ fer ‘all property in proper- ‘suspending]’ interests order all which ‘claims (1980), (1976 following Id. at 62 S.Ct. 552. note 50 U.S.C. 1701 III)). Supp. ed. 153. Id. at 62 S.Ct. 552. 158. Id. at 101 S.Ct. 2972. 154. Id. 159. Id. 230-31, 155. Id. at 62 S.Ct. 160. Id. 156. Id. at 62 S.Ct. 552. 665-66, (quoting 161. Id. at 101 S.Ct. 2972 (quot- Fed.Reg.

157. 453 U.S. at 101 S.Ct. 2972 Exec. Order No. (1981)). ing Exec. Order No. 3 C.F.R. 457 third, As to the the Court determined pro- to the ... Tribunal’ and presented Act Hostage that the IEEPA and did legal that such claims ‘shall have no vided specifically authorize the President to sus- any pending effect in action now ”162 pend pending claims United States court of the United States.’ Court, however, found courts.168 The the against Dames & Moore filed suit highly “statutes relevant in the loos- those Secretary of the States and the indicating congressional accep- of er sense Treasury prevent “to enforcement action scope for executive tance of broad Treasury Depart- Executive Orders and presented as those in circumstances such 169 implementing Agree- the regulations ment reasoned that in this case.” The Court Iran,”163 that the arguing ment with gives IEEPA the President “broad the statutory and con- President exceeded his ... in of national authority to act times authority.164 stitutional property with of a emergency respect “in- Hostage Act foreign country,” and the implemented Jus- Supreme that willingness the congressional dicates powers frame- tice Jackson’s Presidential discretion when re- President have broad it whether work when considered acts of sov- sponding to the hostile (1) nullify at- President was authorized to 170 went on to state: ereigns.” The Court order, blocking made after the tachments ignore general tenor of cannot “[W]e (2) of all Iranian assets order the transfer trying in legislation in this area Congress’ (3) Bank, sus- to the Federal Reserve and act- the President is to determine whether pending court claims.165 As to pend acceptance at least with the ing alone or two, that the first the Court determined can- “Congress Congress.”171 of Because the Presi- specifically IEEPA authorized regard anticipate legislate not were, actions, so those actions dent’s every action the President possible “ therefore, by strongest ‘supported take,” specif- necessary to a lack of find it latitude of presumptions and the widest imply approval does congressional ic judicial interpretation....’”166 Because fact, Congress may In disapproval.172 “ ” mean that the contrary ruling would “[a] independent ‘invite’ the exercise as a whole lacked Federal Government authority there is no presidential where President,” by power exercised to limit it Congress sought indication did not history congressional that Dames & Moore ac- Court held and there is a history, Turning in the Presi- to that presumption quiescence.173 overcome the the United States Court observed favor.167 dent’s 675, 666, Id. at 101 S.Ct. (quoting Exec. 162. Id. at 101 S.Ct. 2972 12294, (1981)). Fed.Reg. 14111 Order No. Id. at 101 S.Ct. 2972. 666-67, S.Ct. 2972. 163. Id. at 170. Id. S.Ct. 2972. 164. Id. at

165. Id. at 101 S.Ct. 2972. at 101 S.Ct. 2972. 171. Id. (quoting 101 S.Ct. 2972 166. Id. at 172. Id. Co., U.S. at Youngstown & Tube Sheet J., (Jackson, concurring)). Youngstown & Tube (quoting Sheet 173. Id. Co., (citing Youngstown & Tube Sheet J., (Jackson, Co., 72 S.Ct. 863 J., (Jackson, 72 S.Ct. 863 343 U.S. at concurring)). concurring)). all ‘who suffered at the hands regularly against had settled claims for- those eign companies during nations on behalf of its nationals the National German ”181 agreement174 executive “Con- Because numerous era.’ Socialist gress implicitly approved prac- has [that] had filed class-action suits been Congress’s acceptance tice ....”175 of such “against companies doing United States executive action was also demonstrated Germany during the National business of, frequent the enactment amend- era[,]”182Germany’s participation Socialist of, ment the International Claims Settle- “was conditioned on agreement Furthermore, pointing ment Act.176 security from lawsuits expectation some IEEPA, legislative history of the It also courtsf.]”183 United States was that Congress “accepted Court found “agreed that the German Foundation authority of the Executive to enter into would work with the International Com- agreements.”177 settlement on Holocaust Era Insurance mission Pink, Finally, referring to the Court (ICHEIC)[,]”184 voluntary organ- Claims prior “recognized noted that its cases ization formed before the German Founda- of President does have some measure Agreement, “negotiat[ed] tion which agreements to enter into executive European provide insurers to information obtaining without the advice and consent unpaid policies about insurance issued to of the Senate.”178 The Court then held ... Holocaust victims and claims settle[d] that “the inferences to be from drawn brought under them.”185 character of the legislation Congress has Before the establishment of the German area, enacted in the such as the IEEPA Agreement, Foundation the California Act, Hostage history and from the had amend- acquiescence in Code Civil Procedure been executive claims settle- ment —we conclude that the President was ed to enable “state residents to sue suspend authorized pending state court on insurance claims based on claims....”179 The Court also noted that perpetrated in the acts Holocaust[.]”186 Congress had not taken action that statute, And a California the Holocaust would indicate it disapproved (HVTRA), Act Victim Insurance Relief agreement.180 compelled companies doing insurance busi- “to details of ness California disclose the Garamendi,

In the United States Presi- ‘life, health, annuities, liability, property, dent and German Chancellor entered into educational, dowry, casualty insurance the German Foundation Agreement, which policies’ persons Europe, established a issued ‘to foundation funded Germa- ny and companies compensate German “to which were in effect between 1920 and 679-80, 174. Id. at 101 S.Ct. 2972. 181. 539 U.S. at 123 S.Ct. 2374. 175. Id. at 101 S.Ct. 2972. 182. Id. 176. Id. at 101 S.Ct. 2972. 183. Id.

177. Id. at 101 S.Ct. 2972. at 123 S.Ct. 2374. Id. Id. at 101 S.Ct. 2972. Id. at 123 S.Ct. 2374. at 101 S.Ct. 2972. at at 123 S.Ct. 2374.

180.Id. 687-88. 186.Id. ”187 agree- to the use of those “subpoenas acquiesced has 1945.’ After California States several subsidiaries of ments to settle claims United against were issued companies participat- against foreign governments.193 nationals European insurance ICHEIC,” issue ing Deputy Secretary Although in the the insurance claims Garamendi, opposed the California to a against corporations, of State wrote were commissioner, and the Governor found that foreign government, insurance Court California, informing them that HVIRA not determinative be- the distinction was essentially threatened the establishment had acted alone cause the President Agreement.188 the German Foundation against pri- claims past to settle wartime vowed to “enforce HVI- When Garamendi parties.194 vate fullest,” European RA to its the Court con- Confronting preemption, the Amer- companies insurance States its decision in the issue under sidered injunc- sought ican Insurance Association v. Miller because the German Zschemig relief, was un- alleging tive HVIRA did not contain Agreement Foundation constitutional.190 Zschemig, In preemption clause.195 Court, the insur- Supreme Before the statute, Oregon escheat held that the American Insurance companies, ance which, inheritance applied, prevented Association, and the United States as ami- countries,196was nationals of Communist that the Foun- argued cus curiae German into field of “an ‘intrusion the State Agreement preempted HVIRA be- dation en- foreign affairs which Constitution foreign policy with cause it “interferes and the Con- trusts to the President ”197 the Executive Branch[.]”191 The Court noted gress.’ Garamendi in a Zschemig “relied on statements that that began by observing “[a]l- The Court open cases to the read- previous number of of the President’s though the source than inci- with more ing that state action enjoy any in affairs does not foreign to act preempt- foreign affairs dental effect detail, gloss on the textual the historical ed, any affirmative federal even absent in Article II of Power’ vested ‘executive law, subject in area of the state activity recognized has the Presi- the Constitution any showing of con- and hence without for the responsibility ‘vast share of dent’s 198 ”192 to Jus- The then referred flict.” Court The foreign of our relations.’ conduct in concurring opinion Zscher- tice Harlan’s President’s acknowledged then Court majority’s that the nig, in which he stated agree- authority to enter into executive preemption of the entire and, “implication of particular, Congress ments 415, 13804(a) 123 S.Ct. 2374. 193. Id. at (quoting Cal. Ins.Code Ann. (West Cum.Supp.2003)). 415-16, 123 S.Ct. 2374. 194. Id. at 411, 188. Id. at 123 S.Ct. 417, (discussing at 123 S.Ct. 2374 195. Id. 411-12, 19 Zschernig, 88 S.Ct. 123 S.Ct. 2374. 189. Id. 683). L.Ed.2d 190. Id. at 123 S.Ct. 430, 432, 436, 88 S.Ct. 664. U.S. at 196. 389 413, 123 S.Ct. 2374. 191. Id. at Garamendi, S.Ct. U.S. at 123 539 Zschernig, U.S. at 88 (quoting 389 (quoting S.Ct. 2374 192. Id. at 664). Co., U.S. at Youngstown & Tube Sheet J., (Frankfurter, concur- 72 S.Ct. 863 Id. at ring)). prompt’ field of affairs was at odds with interests in a ‘fair and vivors’ suggesting some other cases in the resolution of their but nonadversarial positive absence of federal action ‘the ‘bring as to some measure of claims so may legislate States in areas of their tradi- lifetimes’; justice ... in their and the competence though tional even their stat- securing ‘legal companies’ interest utes have an incidental effect on for- they settle claims in this peace’ when ”199 eign relations.’ fashion.203 Although questioned the Court whether interests, Looking then to California’s necessary it was to address field and con- the Court determined those interests were flict preemption, it decided that un- even “against weak when considered the back- view, der “Justice Harlan’s the likelihood subject drop legislative of traditional state legislation produce state will some- 204 Although California had an matter[.]” thing more than incidental effect in conflict protection, interest consumer the Court express foreign policy of the National by limiting noted that HVIRA certain require Government would preemption of policies, purpose it was that the “doubt[ful] Nevertheless, the state law.” because of the California law an evaluation of [was] Justice Harlan legisla- believed that state tion within competence may corporate reliability contemporary its traditional in- enable the state to prevail, the de- Court suring in the State.” also termined “it would be reasonable to con- considered interest in vindicat- California’s interest, sider strength of the state ing “the claims of Holocaust survivors” but judged by practice, standards of traditional objective “that very determined same deciding when how serious conflict must dignifies the interest of the National Gov- be shown before declaring the state law in devising ernment its chosen mechanism preempted.”201 settlements, voluntary being for there first,

Evaluating the President’s action 100,000 in country, about survivors the the Court concluded that the German only a fraction in small of them Califor- 206 Agreement Foundation was “within the nia.” subject traditional matter foreign policy of The held that the German Foun- national, state, in which not interests are 202 HVIRA, Agreement preempted dation rea- overriding....” The Court acknowl- soning, that: the HVIRA “undercuts Pres- edged diplomatic ident’s discretion and the choice approach [t]he taken serves to resolve 207 it”; exercising he has made “the Presi- the competing several matters of nation- authority settling to provide dent’s apparent al concern in the German winding up claims in international hostili- Agreement: Foundation in- the national requires flexibility wielding in ‘the co- ties maintaining terest amicable relation- allies; ships European power economy’ with current sur- ercive of the national as a (quoting Zschemig, 199. Id. 389 U.S. at 204. Id. at 123 S.Ct. 2374. J., (Harlan, concurring)). 88 S.Ct. 664 205. Id. at 123 S.Ct. 2374. 419-20, 200. Id. at 2374. S.Ct. 206. Id. Id. at 123 S.Ct. 2374. Id. at 123 S.Ct. 2374. 423-24, Id. at 123 S.Ct. 2374. Id. at 123 S.Ct. 2374. a diplomacy”; authority unilaterally

tool of and “HVIRA is dent’s settle with nation dispute another executive obstacle to the success of the National order, So, memorandum, or directive.212 force’ Government’s chosen ‘calibration of 28, 2005, February issuing when mem- dealing using a Europeans with the orandum, authority the President’s was voluntary approach.”209 its not at maximum because the President us, Turning the case we con- before to an “pursuant express did not act clude that the reliance on the President’s of implied Congress[.]”213 authorization power agreements enter into executive at power being With President’s nations, and disputes to settle with other here, ask its zenith we must whether corporations under limited cir- even has acted in the of President “absence cumstances described Garamendi congressional grant a or denial of either is mis- Medellin and the United States authority!.]”214 Implied congressional entered placed. The President has not settling ratification of President’s agreement into Mexico re- such with is foreign “practice claims with nations a lating to the Mexican nationals named goes years back over [that] the Avena been no decision. There has first Presidential administration....”215 Rather, presidential settlement. mem- Here, uni- unprecedented the President’s act in an orandum a unilateral executed issuing lateral action of this memorandum a Mexico. effort achieve settlement with category presiden- not fall does into independent foreign af- President’s twilight” in a “zone power employed tial fairs to enter into an executive inertia, indiffer- “congressional or where agreement dispute a with a for- to settle quiescence” ence or enabled or invited nation eign under Article II of the Consti- President.216 In this con- conduct ac- congressional text, tution210 “has received in- it is that the evident President’s .”211 quiescence throughout history... its dependent power dispute to settle nation, history congres- throughout But there recognized is no similar existence acquiescence history, depends sional to the Presi- nation’s relating J., (Jackson, (quoting Crosby Id. at con 123 S.Ct. 2374 363, Council, Moore, Foreign v. Nat’l Trade 530 U.S. curring); see & U.S. also Dames 453 377, 2288, (2000)). 120 147 686, ("Past S.Ct. L.Ed.2d 352 practice does at 101 S.Ct. 2972 not, itself, by power, ‘long-contin create but 425, (quoting Id. at Cros- 209. 2374 practice, acquiesced known to and ued 2288). by, 530 U.S. at 120 S.Ct. Congress, presumption that would raise pursuance had taken in of its action been II, 210. U.S. cl. 1. Const, art. ....’”) (quoting United v. Mid consent States Garamendi, U.S. 123 S.Ct. at Co., 459, 474, 35 S.Ct. west Oil 236 U.S. (1915)). L.Ed. 673 Co., 343 Youngstown Sheet Tube 212. See & Co., Youngstown at & Tube Sheet J., (Frankfurter, at 72 S.Ct. 863 U.S. J., (Jackson, concurring). 72 S.Ct. 863 (stating systematic, un- concurring) “a broken, practice, long pursued to executive Garamendi, U.S. at Congress never be- knowledge engaged questioned, Presidents fore uphold who have to the Constitu- also sworn tion, pow- making as it were such exercise of Co., Youngstown & Tube U.S. at Sheet part government, er of the structure our J., (Jackson, concurring). 72 S.Ct. 863 power’ may gloss on be as a 'executive treated II.”). by § Art. vested in the President 1 of agreement. of an executive ex- Given the the President failed to avail himself of President, traordinary conduct of the un- that mechanism to settle this nation’s dis- supported by history congressional it pute although with Mexico. And acquiescence, we find that the President’s time-consuming to obtain executive resolving country’s chosen method for agreement, the need for “swift action” dispute with “incompatible Mexico is with does not override what the Constitution implied the ... Congress!.]”217 will of requires compact international —an instance, Accordingly, in this we find that agreement. the exercise of foreign the President’s af- A necessary component executive fairs “is its lowest ebb[.]”218 agreement negotiation process is the Having contrary acted implied will it, precedes which ensures that each sover- Congress, we conclude that the Presi- eignty represented is and heard. What is dent has exceeded his inherent constitu- ultimately through achieved that process, foreign authority by tional affairs direct- ing invariably state which comply compromise, courts to with Avena. involves will meeting reflect a of the minds—a settle- The United States submits that requir- terms, conditions, ment embodies the (1) ing a formal agreement bilateral would “ rights, obligations agreed during ‘hamstring the President in- settling negotiation process. At odds with this ternational controversies’219 and weaken is the notion that a “foreign government fulfill ability this nation’s treaty its obli- may acquiesce in a resolution that it is (2) gations”; “fail to recognize prac- unwilling formally approve.” A Presi- tical reality that there are occasions when dential resolution that is based on an eval- a foreign government may acquiesce in a necessary uation of the means to resolve a resolution that it is unwilling formally (3) dispute approve”; implemented anticipa- and then “fail to recognize that ob- taining a tion agreement acquiescence by formal of future a foreign can be a time consuming process government that is ill-suited for oc- is not a settlement. The mere casions when swift required”; action is and possibility of later acquiescence by a for- (4) perverse “have the effect of assigning eign government speculation. Repre- foreign to a government veto power over sentatives of foreign governments change, the President’s authority exercise of his them, and with international relations are over foreign affairs.”220 subject to modification. itWhen comes to relations, history proven has that a

Contrary to the United States’ conten- an ally day, may nation deemed on one tions, requiring a formal agree- bilateral next, enemy. Finally, be declared an ment does not limit or constrain the agreement the view that an executive al- ability President’s to settle international lows “a foreign government power veto comply controversies or treaty with obli- over foreign the President’s exercise of his gations. ability The President’s nego- to powers” purpose affairs undermines the tiate and enter into an agree- executive ment dispute negotiation process accomplish- to settle a with a the foreign —the case, however, nation In remains. ment of an actual settlement. Curiae, Id. 219.Br. of United States as Amicus Garamendi, (quoting 30 539 U.S. at 2374).

220.Id. agreement Supreme The absence of executive The Court’s determina the States and is between United Mexico tion about effect of the domestic ICJ deci “ central to our determination that the Pres- only to they sions—that are entitled ‘re ” ident exceeded his has inherent spectful 224—based on its consideration’ power by ordering comply affairs us to interpretation of the Statute the ICJ clear, with Avena. must make We howev- and the Charter in United Nations Sanc er, that our decision is limited to the issue any argument hez-Llamas225 forecloses before us—the effect of President’s acting that the within President is his au 28, 2005, memorandum. February There- thority to faithfully execute the laws of the fore, express opinion we no whether about By directing state United States. courts agreement an executive between the Unit- Avena, give to effect to the President has ed and Mexico providing States for state But, acted as lawmaker. as Justice compliance with court Avena would explained Youngstown Black Sheet & preempt state law. Tube, the framework of our Constitu “[i]n tion, the see power Medellin also relies on the Presi President’s to that the duty faithfully dent’s to execute the laws are faithfully laws executed refutes the II, provided in Article Section 3 of the idea that he to be a lawmaker.” is Medellin, According Constitution.221 28, 2005, February President’s determina authority “has both the and President tion cannot under the power be sustained duty to enforce the United States’s Executive to ensure the laws treaty obligations legal within the domestic are faithfully executed. because, system” under the Supremacy Relying again pow- on the enumerated Clause, supreme.222 are treaties Related President, Medellin ers also con- argument

to this contention Medellin’s explicitly tends that “[t]he Constitution authority vests the President with over nothing has done more the President diplomatic relations.” He and consular than confirm that United States will clearly argues: “No is more Presi- do already promised what it has to do— authority protect dential than the U.S. in a abide the decision the ICJ citizens abroad.” He and their interests concerning interpretation dispute ability of the contends that United application of the Vienna Conven- citizens protect States its be com- was promise tion. That made [a] promised States if the United does constitutionally prescribed process when statutory comply Looking Avena. with President, advice and con- authority, maintains that by Medellin vir- Senate, entered into the Vi- sent of the Code, Convention, Protocol, tue of Title 22 States Sec- Optional enna 402(a)(1)(D), “Congress Charter, tions 1732 has the U.N. the ICJ Stat- duty specifically referenced President’s ute.223 Co., II, Youngstown Sheet & Tube U.S. at U.S. Const, art. 587, 72 S.Ct. 863. Applicant at 50. Br. of (citing U.S. Applicant 227. Br. at 48 of Const. Id. at 45. II, 2, 2, 3). §§ art. cl. Sanchez-Llamas, (quoting 126 S.Ct. at 2685 375, eard, 1352). U.S. at Br Id. Id. at 2684-85. (a) in the protecting Security context of U.S. citizens functions.

who have been detained or arrested (1) Secretary develop The of shall State lands, foreign ... in requiring and (in implement and consultation with the to protect foreign President nationals in agencies having heads of other Federal the United States[.]”229 personnel or ap- missions abroad where II, 2, propriate scope and within of

Under Article Section Clause of available) Constitution, resources made “by policies and President and Senate, programs, including funding with the Advice levels and and Consent of the standards, Ambassadors, provide security shall for the of appoint public other operations Ministers and United States Government Consuls....” And under II, diplomatic nature and foreign govern- Article Section the President “shall operations ment diplomatic receive Ambassadors of a nature public and other Ministers....”231 the United policies States. Such and programs shall include— Act, Hostage Title United States Code, Section states: it

Whenever is made known to the Presi- any dent citizen of (D) the United missions, protection foreign inter- States has been unjustly deprived of his national organizations, offi- liberty by or authority under the cials foreign persons and other in the foreign government, it duty shall be the States, United as authorized law.233 of the President forthwith to demand of We have no doubt that the President that government the reasons of such play other executive branch officials imprisonment; if appears it to be vital in protecting role the interests of wrongful and in rights violation of the necessary. American citizens abroad when American citizenship, the President shall However, do not we construe the constitu- forthwith demand the release of such provisions tional as expressly implicitly or citizen, and if the release so demanded is granting authority the President unreasonably delayed refused, compliance mandate state court with the means, President shall use such ICJ Avena decision, and Medellin cites no amounting to acts of war and not other- precedent that would lead us to conclude law, prohibited by wise as he think otherwise. necessary and proper to obtain or effec- release; tuate the and all the facts and can Nor the statutes be read to proceedings relative thereto shall as authorize the President’s independent ac soon as practicable be communicated First, tion in this case. there is no indica Congress.232 President to tion Hostage specifically Act Further, Code, Title grants States the President unlimited Section which “Responsi- defines the act objective when the President’s is to State,” bility Secretary provides protect the interests of American citizens part: relevant In Dames & traveling residing abroad. (2000). (citing §§ § at 49 22 U.S.C. 232. 22 U.S.C. 4802(a)(1)(D)). (2000). 4802(a)(1)(D) 233. 22 U.S.C. II, § Const, 230. U.S. art. cl. 2. II, § Const, 231. U.S. art.

346 power delegated that the Moore, logic to conclude reviewed the Supreme the Court Hostage Act President under the to the Act: history Hostage of the legislative any engage the President to permits concerned with Congress in 1868 was maintenance that will ensure the conduct refusing certain countries activity of Nevertheless, need not power. that we of citizenship of natural- recognize to power scope any implied of decide abroad, and re- traveling ized Americans under the Hos- conferred to the President against their such citizens patriating because, Act, already have con- as we tage not interest- will. These countries were case, history “there is [not] cluded exchange returning the citizens in ed in of acquiescence conduct congressional ransom. This also ex- sort of by the President.”237 engaged in the sort impris- in the Act to plains the reference the President had concluding that When rights ‘in onment violation court authority suspend pending to citizenship.’234 American Moore, the Court re- in Dames & claims pro- that the The further observed only power President’s lied on not ‘something “argued the Act that ponents of Act, on the Presi- Hostage under the but Executive’ and must be intrusted to the under the International power dent’s pow- to have the ought that ‘the President Act and the Economic Powers Emergency exigencies of the case er to do what for- settle claims with power President’s to imprison- a citizen from require to rescue agreement.238 eign by nations executive ” 235 determining whether ment.’ When so, specifically noted: doing In the Court authority suspend had the the President today is the con- to our decision “Crucial courts, found ap- in American the Court implicitly claims has Congress clusion congres- Act “indicates settlement Hostage practice that the of claim proved decline agreement.” President have We willingness that the executive sional authorizes Hostage that the Act find responding when broad discretion comply this Court to President to order sovereigns.” But foreign hostile acts of with Avena. authority vested congressional implied citi- States protect the President to United 4802(a)(1)(D), Although Section to the hostile acts of response zens in Code, provides States Title United circumstances nation where the another duty to has the Secretary of State President’s exigent shows that missions, are or international “foreign protect citizens States protect United and other officials ganizations, States,” cannot ac- unqualified. We abroad is not in the United foreign persons “ Hostage ‘authorized argument only things that the cept duty Medellin’s extends ”241 therefore, statute, can au- the President unfettered law.’ grants Act independent source regarded as an the interest of not be thority protect to act to memoran- authority for the President’s It abroad. strains States citizens (internal 101 S.Ct. 2972. 239. Id. at U.S. at 234. 453 omitted). citations ("There (2000) be § shall 240. 22 U.S.C. 2972. Id. at 101 S.Ct. 235. depart- government an executive at the seat of 'Department known as ment to be Id. at 101 S.Ct. State, State’, Secretary who shall thereof.”). the head 101 S.Ct. 4802(a)(1)(D). 677-82, 686, 241. 22 U.S.C. Id. at commission, ordering comply any organ, dum state courts to in United States Avena. body or other of the Nations United specialized agencies other than of the support In further position of its Nations, perform United and shall such authority the President has the other functions in connection with the direct give state courts to effect to the ICJ in participation of the United States decision, Avena the United States directs may, Nations as President United us to the United Nations Charter and the time, from time to direct. Participation United Nations Act. The (b) Appointment represen- United States maintains that the ratifica of additional tatives; rank, tenure; duties; tion of the “implicitly grants Charter status and President ‘the lead in determining role’ reappointment unnecessary. The Presi- respond how to to an dent, ICJ decision.”242 by and with the advice and consent And under the United Nations Partic Senate, appoint of the shall additional Act, ipation according to the United titles, rank, persons with appropriate States, President, through appointed represent and status the United officials, “represents the United in States in principal organs States of the Nations, including United before the organs, United Nations and in such com- in Security ICJ and Council.”243 missions, or may other bodies as Moreover, the argues United States created the United Nations with re- Congress “expressly anticipated that these spect to nuclear energy or disarmament officials ... perform would ‘other func (control armament). and limitation of tions in participation connection with the persons pleasure Such shall serve at the of the in United States the United Nations’ of the subject President and to the di- at the direction of the President or his Representative rection of the of the representative to the United Nations.”244 United States to the United Nations. shall, They Repre- at the direction of the “Representation

Titled in Organization,” Code, Title sentative of the United States to the United States Section 287 Nations, provides part: in represent the United commission, any organ, States or oth- (a) Appointment representative; Nations, body including er of the United rank, tenure; status and duties. The Council, Security the Economic and President, by and with the advice and Council, Trusteeship Social and the Senate, consent of the appoint shall Council, perform such other func- representative of the United States to Representative tions as the of the Unit- the United Nations who shall have the perform ed States is authorized to rank and status of Ambassador Extraor- participation connection with the of the dinary and Plenipotentiary and shall pleasure hold office at the United States the United Nations. of the Presi- Any representative Deputy Representative dent. Such oth- repre- shall Security holding sent the United er officer office at the time the States Act, amended, provisions Council of the United Nations and be- representative serve ex officio as required come effective shall not be Curiae, 287(a), (b) (quoting 242. Br. of United States as Amicus at 22 U.S.C. Id. Garamendi, (quoting (2000)). 20-21 at 2374). 5(a)(1), reappointed by reason the enact- C. Section Article 11.071 of the Act, ment of this as amended.245 Texas Code Criminal Procedure We consider now whether Medellin has Starting with the United Nations Char- requirements satisfied the of Article ter, it we hold not authorize type does the 5(a)(1) 11.071,Section of the Texas Code of of action that President the has taken Criminal Procedure so permit as to by here. The is still bound the President and his to review reconsider Vienna deciding when how Constitution the Unit- 5(a)(1) pro- claim. Convention Section will to an respond ed States ICJ deci- vides: and, sion,246 above, as stated the President If subsequent application a a for writ of implied foreign exceeded his affairs corpus filing habeas is filed after an by directing give state courts effect to a application, initial court not con- Avena. sider the merits of or relief grant based subsequent the unless application the Additionally, the subsections of application contains specific sufficient Participation the Act United Nations set establishing facts that: forth above do the support not President’s the current claims and issues have not participation determination. the Because present- been and could not have been in proceedings United States before previously timely appli- ed in a initial does courts the ICJ not bind the of this previously cation or considered country comply with a decision of the application filed this article ... under ICJ,247 necessarily par it follows that the legal the factual basis because ticipation of the United States the Unit the claim was on the date unavailable ed Nations does not authorize the Presi appli- filed applicant previous give to order courts to dent state effect to cation!.] by decision the ICJ. rendered Medellin contends that the Avena deci- the foregoing, Based on we hold that the sion and the Presidential memorandum ordering President’s memorandum us to serve factual previously unavailable and effect to the Avena decision can- give ICJ legal because after bases both issued his express not be sustained under first was application denied. State powers of implied constitutional the Presi- legal maintains that the basis for Medel- by dent relied on Medellin and the United Convention, claim, lin’s the Vienna was granted or under any power States to the his he available before trial and when filed Congress by President an act of cited claims, his application. first Medellin how- Medellin the United States.248 As ever, reasserting that he is not same such, sepa- violated the President has application; claim on his presented first he powers by intruding ration of doctrine into that the contends Avena decision therefore, judiciary, the domain of the him with provide President’s memorandum cannot that the prospective Medellin show President’s review and recon- right 5. will whether preempts memorandum Section sideration. We address Co., 287(a), (b). Youngstown Sheet & Tube § 22 U.S.C. 248. 343 U.S. at 585, 72 Curtiss-Wright Corp., Export U.S. S.Ct. 216. Proc, 5(a)(1). 11.071 art. Crim. TexCode Sanchez-Llamas, S.Ct. at plain meaning.” give or the We will not effect Avena decision Presidential memo- if, qualify legal plain meaning randum as a new factual or of a statute’s text 5(a)(1) separately. basis under Section when it leads to an absurd applied, result been could have intended 1. Factual Basis Legislature.256 application When 5(e) of Article 11.071 Section states: literal leads statute’s text absurd (a)(1), of a purposes For Subsection fac- result, ambiguous, the text we consult or tual basis of a claim on or is unavailable to a extratextual sources determine stat- a before date Subsection described meaning.257 ute’s (a)(1) if the factual basis was not ascer- In of determining plain meaning through tainable the exercise reason- of 5(a)(1), guided “factual” are in Section we diligence on or able before that date.250 construction, applicable canons of What a constitutes “factual basis” Article 3.01 of the of Code Criminal Proce- 5(a)(1) under Section is not defined. dure, governs how in which words Therefore, to determine whether Avena or understood,258 to Code are be and Section qualify the President’s memorandum as a 311.011 of the Texas Government Code previously unavailable factual basis under (the Act), pro- Code Construction which 5(a)(1), we perform Section must a statuto vides the common and of technical use ry-construction analysis to determine the words in Code.259Article 3.01 of the meaning of “factual.” Code of Criminal states that Procedure words, phrases and in “[a]ll terms used statute, When interpreting this Code are to taken be and understood “we seek to effectuate the ‘collective’ in acceptation their usual in common lan- tent of purpose legislators or who en except guage, specially where defined.”260 so, acted the legislation.”251 In doing we 252 The provides: Code Construction Act statute, examine the “literal text” of a phrases shall read in “Words con- which all phrases,253 includes words and text according and construed the rales fair, “to discern the objective meaning of grammar and common usage.”261 that text at the time of its enactment.”254 “if text, And the meaning statutory acceptation To what the discern usual using when read the established in common language canons of the word “factual” is text, construction relating to such or according should how it is construed have been plain the legislators usage, who vot rules of common we look dictio- it, “factual,” ed on ordinarily give we nary effect definitions.262 The word 250. 5(e). 257. Id. at 785-86. § TexCode Crim. Proc. art. 11.071 State, Boykin (Vernon v. 818 S.W.2d 785 258. TexCode Crim. Proc. art. 3.01 2004). (Tex.Crim.App.1991). 311.002, (Ver- §§ Id. 259. Tex. Gov’t Code 311.011 2003). non State, (Tex. Nguyen v. 1 S.W.3d 696 Crim.App.1999). 260. TexCode Crim. Proc. art. 3.01. 311.011(a). Boykin, S.W.2d at 785. 261. Tex. Gov’t Code Rieck, (Tex. Id. parte 262. Ex 144 S.W.3d State, Crim.App.2004); Lane S.W.2d (citing (Tex.Crim.App.1996) n. 12 Dictionary New New International

according to Webster’s Third Interna- ster’s Third “of, to, relating Although six Dictionary, means alone contains definitions.267 tional to, variety with facts” and “restricted there of definitions for the concerned are “fact,” on fact....” it involving, based must be considered in word Usage Dictionary appears.268 Modem American it We find it context in which in- two additional definitions—“of or Legislature expressly offers that the instructive 264 Illustrating (fact) facts” volving and “true.” from distinguished legal factual basis definitions, (law) 5(a)(1). the difference the two between This distinc- basis Section Dictionary Modem American Us- necessary, for the two but tion accounts meaning age “appears states that the first separate, parts any subsequent claim: phrases finding such as the legal the factual basis and basis. With factual question,” while the second mean- mind, following we find that factual ing “appears phrases in such as of “fact” from Dic- definition Black’s Law factual 265 The account and narrative.” tionary Legisla- the accurately reflects factual 5(a)(1) in falls meaning of “factual” Section alleged ture’s intent: actual or event “[a]n category phrases the of de- within first circumstance, its distinguished or from Dictionary Modem scribed the effect, legal consequence, interpreta- or of 269 “factual” is Usage American because Giving plain mean- tion.” effect turn paired with word the “basis.” We to an ing of “fact” does not lead absurd meaning our the of the word attention to have Legislature that the could not result acceptation “fact” its according to usual of application It is the the law intended. of and the rules common language common yields legal of to a fact or set facts that the usage. effect, consequence, interpretation. or effect, cases, legal And in the conse- some multiple re-

Our review of dictionaries creates a new quence, interpretation veals that there are numerous definitions 266 instance, rule of for word “fact.” For Web- law.270 (2d ed.1977); State, 208, English Bingham v. 209-10 Law 764 913 S.W.2d nary Ballen- of (3d ed.1969). (Tex.Crim.App.1995)) (reaffirming 449 “that use Dictionary tine’s Law dictionary of definitions of words contained 'plain statutory language part of is 267. Webster’s Dictio- Third New International meaning' analysis appellate ini that an court nary tially Boykin to ] conducts determine [under question am or not the statute in is whether Lane, 311.011; 933 268. Tex. Gov’t Code biguous.”). at 515 n. S.W.2d New International Dictio- Webster’s Third 269. Black’s Law Dictionary (2002). 813 nary 551, Simmons, See, e.g., Roper v. Usage 264. A Dictionary of Modern American 568, 1183, (2005) (“A 1 161 L.Ed.2d 125 (1998). 284 rejected imposi- majority have of States juvenile penalty death offenders tion of the (original emphasis). at 284-85 required by and we now hold this is under Amendment.”); Wash- Eighth v. 266. See Webster’s Crawford Third New International 158 ington, U.S. 124 S.Ct. (2002); 541 Heri- The American 813 Dictionary (“the (2004) (3d ed.2000); Amendment L.Ed.2d 177 Sixth Dictionary tage College 489 required: ed.1999); law (7th demands what the common A 610 Dictionary Law Black’s (2d prior opportunity unavailability a Legal Usage 346 Dictionary of Modern cross-examination.”); Virginia, 1995); Atkins ed. Dictionary Random House 1987); (2d 153 L.Ed.2d U.S. English Language ed. A Concise (2002) (1983); ("Construing applying of Law Dictionary Dictio- Jowitt’s 5(a).” Thus, The actual event or in- urges, circumstance der he Section volved Medellin’s case that law en- a President’s memorandum is new “factual forcement authorities did not inform Me- him to entitling basis” review. We also right dellin his contact Mexican disagree argument. with this after his required consulate arrest as broadly claims that “whether Medellin 36(l)(b). provided Article This fact legal factual ... considered as a basis factual challenge basis for Medellin’s his the President’s Determination was [not] conviction and sentence under the Vienna at the time of initial applica- available his Convention on his first application for 5(a)” purposes tion for Section without corpus. writ disposed of habeas We explanation further as to how the memo- claim on independent state randum constitutes a “factual” basis.275 ground.271 court, Agreeing with the trial however, arguments, Medellin’s address we legal found effect or conse- exclusively the memorandum as a legal, quence of Medellin’s Vienna Convention factual, basis; argues he that the Pres- claim application resulted in the of our ident’s memorandum “constitutes bind- procedural state default due to rule Medel- ing federal if rule decision.” But even lin’s failure to object trial.272 Medellin had devised a complete argument Medellin now argues that Avena that the President’s memorandum consti- a previously is unavailable factual for basis basis,” tutes a “factual we still would reach 5(a)(1). of purposes Section disagree. We the same conclusion. The President’s 5(a)(1), For purposes of Section the Avena memorandum directs the state courts to properly law, decision is categorized as give decision, effect to ICJ the Avena and though even it is not on us.273 binding doing, specifically so the President re- and, ICJ’s decision in Avena is not a fact authority lies on his “the under Constitu- therefore, does qualify previously not aas tion and the of laws United States unavailable factual basis under Section America....” This indicates that 5(a)(1). President his intended memorandum As to the According President’s have the effect of law. memoran to our dum, “factual,” Medellin analysis asserts that earlier judgment “[a] of we determined giving rise to new claims issued after an that the word means “of involving”277 or applicant’s application habeas alleged renders the actual or “[a]n event circum- factual basis of the claim stance, ‘unavailable’ un- distinguished legal as its ef- from Eighth Medellín, WR-50,191-01 light parte Amendment of our 'evolv- 271. Ex No. (not 2001) ing decency,’ (Tex.Crim.App. designated standards of we therefore Oct. con- punishment publication). clude that for such is excessive and 'places that the Constitution a substantive re- Id. striction on the State's to take the life’ offender.”); mentally Apprendi of a retarded Sanchez-Llamas, 126 S.Ct. 466, 490, Jersey, v. New (2000) Applicant 274. Br. of at 54. (holding L.Ed.2d 435 that Fifth, under the and Sixth Fourteenth Amend- ments, prior "[o]ther than the fact a con-

viction, any penalty fact that increases Presidential Memorandum. beyond prescribed statutory a crime maxi- Usage jury, proved mum must be submitted to a Dictionary 277. A American Modern doubt.”). beyond (1998). a reasonable

feet, interpretation.”278 holding procedural its Breará —that de- consequence, Here, that though we have concluded even fault rules bar Vienna Convention is bind- Sanchez-Llamas, President’s memorandum not claims.282 In Su- argued by ing federal law as Medellin that is concluded Avena enti- preme Court “ States, say we that the cannot only ‘respectful consider- tled ” 283 that falls into definition. memorandum ation,’ such, as not decision is 5(a)(1), Section like purposes For Likewise, binding us. we have on because decision, the President’s memoran- Avena President has exceeded concluded a properly “legal dum classified as ba- is by ordering authority his state courts sis,” anot factual one. Avena, the give effect to President’s deter- binding federal law. Be- mination is Legal Basis and the President’s memo- cause Avena the Avena deci Because neither law, binding neither of randum are not con sion nor President’s memorandum unavailable previously them can serve as a basis,” consider stitute a “factual we now 5(a)(1). legal purposes basis for Section as a qualifies previously whether either “legal under Section unavailable basis” 5(d)

5(a)(1). 11.071 Section of Article IV. CONCLUSION states: that the Avena deci- Having found ICJ a legal basis of claim unavailable memorandum do sion and the Presidential or before a date described Subsection law binding federal not constitute (a)(1) recog- legal if basis was not Supremacy under the preempt Section 5 have been reason- nized or could not of the United States Constitution Clause from a final ably formulated decision previously qualify and that neither Court, a Supreme the United States legal factual or basis under unavailable States, of appeals court of the United 5(a)(1), sub- we dismiss Medellin’s Section this appellate jurisdiction a court a of habeas sequent application for writ on or before that date.279 state 11.071, corpus Article Section under Although the Avena decision and not avail- Presidential memorandum were WOMACK, J., in the result. concurs applica- his first able when Medellin filed tion, new basis legal neither constitutes a KELLER, P.J., concurring filed a 5(d).280 plain of Section language under opinion. First, recognized pro- been neither has right and reconsidera- viding a to review PRICE, J., concurring opinion. filed a “a of the United final decision tion Court, appeals court Supreme States a J., opinion. HERVEY, concurring filed a States, appel- a court of of the United J., COCHRAN, concurring filed a In- jurisdiction of this state-”281

late JOHNSON, and earlier, opinion in which deed, as noted the United we JJ„ HOLCOMB, joined. recently Supreme Court reaffirmed States Dictionary Sanchez-Llamas, 126 S.Ct. at 2687. 278. Black's Law 5(d). § Crim. Proc. art. 11.071 279. Tex.Code Breard, at (quoting Id. at 1352). Boykin, S.W.2d at 785. 5(d). Crim. art. 11.071 281. Tex.Code Proc. P.J.,

KELLER, concurring. eignty govern- of the and federal state in the ments —embodied structure On behalf of the United States as amicus Constitution,3 as well as in the Tenth curiae, Attorney the U.S. General’s office Although Amendment.4 federalism was position taken the has that President “the contribution of the unique Framers Bush’s memorandum constitutes order political [of Constitution] the U.S. to sci- requiring ignore Court this rules of procedural (including govern- political theory,” default ence and there remains rules objections ing contemporaneous trial “much uncertainty respecting the exis- governing subsequent and statutes tence, content, habeas and the of standards that corpus applications) and evaluate anew Judiciary allow to play significant a applicant whether a prejudiced was fail- role in maintaining design contemplat- to comply ure with the Vienna Convention Nevertheless, ed I Framers.”5 on Consular Relations. I conclude that agree Kennedy with Justice that “the fed- the President of the United States does eral part balance is too essential a of our have power not a order state court constitutional structure and too plays vital to conduct such review. judicia- role in securing freedom for [the “Although the source of the President’s ry] inability to admit to intervene when to act foreign affairs does not one or other level Government have detail, enjoy any textual the historical tipped scales far.”6 too gloss on the ‘executive Power’ vested in In Kennedy’s line with pro- Justice Article II of the recog- Constitution has nouncement, the Supreme United States nized the respon- President’s ‘vast share of increasingly stepped has forward sibility for the conduct of our rela- ”1 prevent government the national from in- Nevertheless, tions.’ the executive’s truding sphere power. into the of state power in regard limits, is without adopted policy Court has a general as it must still be “exercised in subordina- against injunctive federal interference with applicable tion provisions of the pending of a Constitution.”2 course state criminal Among principles en- shrined in prosecution.7 the United States Constitution The Court has struck down separate Congressional federalism —the sover- relating enactments to crim- Garamendi, union), (duties 1. American Ins. Assn. § v. 539 U.S. new states into the 4 of U.S. 396, 414, 2374, states), (state 123 S.Ct. 156 L.Ed.2d 376 to its V ratification of amend- (2003)(quoting part Youngstown in proposed by Congress). Sheet & ments 610-611, 579, Sawyer, Co. Tube v. 343 U.S. 72 863, (1952)(Frankfurter, S.Ct. 96 L.Ed. 1153 Const., powers 4. U.S. Amend X: "The not J., concurring)). delegated to the the United States Consti- tution, States, prohibited by it the nor to are 9, 2. 416 n. 123 2374. S.Ct. respectively, to reserved the States or the to people.” Const., I, (members § 3. See U.S. 2 Arts. Representatives of by people House elected 549, 575, Lopez, 5. United States v. 514 U.S. States”), (Senate § the "of several 3 com- 1624, (1995)(Ken- 115 S.Ct. 131 L.Ed.2d 626 state), posed § of two senators from each 4 J., nedy, concurring). (time, place rep- and manner of for elections prescribed by resentatives and senators each 578, 6. state), id. at 115 S.Ct. § (specific prohibitions against 10 the states), II, (states appoint § 1 presidential electors), IV, (full 37, Harris, § 1 Younger faith and credit be- v. 401 U.S. 91 states), 746, (1971)(abstention § (privileges 2 tween and immunities S.Ct. 27 L.Ed.2d 669 (admission states), doctrine). the of citizens of 3 of (ICJ) jurisdiction ar- tional of Justice of justice that concerned traditional inal interpretation out the authority8 imposed disputes “arising of eas of state respect application of the Convention” but did obligations on state officials with regard- Although purport jurisdiction not to confer regulatory scheme.9 to a federal treaty ing remedy apply a to the event the not down the the Court has struck that a violation of the agreement impermissibly for ICJ determined an executive treaty it Even if the authority, has had occurred.12 ICJ intruding upon state remedy, had authorized to craft a construed such docu- been several instances however, surely law that authorization could preemption to avoid of state ments deciding organ a not which level or question the involved include where state law government implement would such competence area of state traditional internal remedy; the latter would an applied equally to citizens non-citi- the to party-nation matter for itself deter- zens.10 mine. regards of those instances the Vien- One itself; must de- Supreme Consequently, President treaty

na Convention foreign solely upon his inherent rela- explicitly pend recognized Court has he justify the action has treaty power not rules tions to preempt does state taken, result, action and as a his should be procedural To the extent default.11 It true that subject greater scrutiny. trump such state to purports the President then, can memorandum, relations he does President’s rules of state law preemption pursuant treaty’s accomplish act to the authoriza- example, agree- for executive according through, Nor does he act tion. Protocol, process, But with the gave treaty the Interna- ment.13 which Optional Sanchez-Llamas, supra. Lopez, U.S. 115 S.Ct. criminalizing (striking down L.Ed.2d 626 law statute, topics 12. Under the ICJ four different gun-free school possession of a firearm a subject Morrison, can be made international zone); U.S. United States compulsory jurisdiction: court’s 146 L.Ed.2d (2000)(invalidating statutorily-created civil interpretation treaty; a. gender-motivat- law; cause of action for victims of any question b. of international violence). which, ed if estab- c. the existence of fact an a breach of in- lished would constitute States, 898, v. United Printz obligation, ternational (1997)(striking 138 L.Ed.2d 914 reparation d. and extent the nature en- provision requiring local law state and be made the breach international background officials to conduct forcement obligation. handgun purchasers). prospective checks Justice, of the Court of International Statute added). Optional (emphasis § 2 Art. Bank, 281 Todok v. Union State U.S. subjects compulsory ju- ICJ’s Protocol 363, 74 L.Ed. 956 50 S.Ct. only "[djisputes arising out of the risdiction (1930)(treaty amity and did not commerce application of the Conven- interpretation or law); Guaranty preempt homestead Nebraska tion.” Optional to Vienna Convention Protocol States, 126, 142- U.S. Trust Co. v. United 304 Concerning Compul- the on Consular Relations 785, (1938)(exec- 143, L.Ed. 58 82 1224 S.Ct. (emphasis Disputes, Art. I sory Settlement agreement with the Soviet Government utive added). preempt assigning claims did not economic Garamendi, limitations); 123 S.Ct. U.S. at 539 New York statute Sanchez- agree- -,-, ("Generally, then valid executive 2374 Oregon, -U.S. Llamas v. law, just 2669, 2682-2688, preempt as fit state 557 ments are to 165 L.Ed.2d S.Ct. 126 are,” caveat referenced earlier (2006)(Vienna treaty treaties but see does not Convention 2). default). opinion in procedural in and cited footnote preempt rules of state presidential action, that a requirement supermajority by specific of the ner the and concur, Senate is in the States upon the too state interest intruded is reason;14 a Constitution for Alexander fundamental, permit president’s to a inter- Hamilton in suggested the Federalist Pa- vention. that pers provision operates as an Such a case is us. now before Criminal important pow- on cheek the President’s justice an primarily area of state con- is I significant er.15 find it that this check is Supreme repeatedly cern. The Court has Senate, exercised organ of the recognized possess pri- the “States government closely aligned national most mary authority defining enforcing for

with the states. have, the criminal law.”17 And states to Supreme The Court suggested has least, say overwhelming interest the proper analysis for wheth- determining the procedures followed in their own president’s er a foreign exercise his Supreme Younger, courts. In power relations preempts state law is to “a proper found that respect state determine first whether the state has act- injunctive in- against functions” counseled ed within an area of “traditional state re- terference the federal courts with has, sponsibility,” if it to assess the progress prosecution.18 of a state But the degree of conflict with policy federal presidential attempts memorandum to do strength of the state in- interest just something it attempts intrusive: to volved.16 Unlike other preemption federal proceedings the states to conduct force a cases which prevailed, state has we they would not otherwise conduct and express, here an address stark conflict be- do so in a manner inconsistent with their tween the President’s assertion of procedures. own Supreme Court has (at least under the Justice Department’s engaging itself refrained from in this kind interpretation) and the state law at issue. Moreover, of “lawmaking.”19 the memo- Nevertheless, given the that a principle ignores randum importance “the weighty state interest lessens likeli- procedural adversary default rules in an hood of federal preemption, it follows that system.”20 rules, These neu- a which are president cannot use his affairs authority everyone, just not applying to intrude for- into the state arena tral — impunity: eign some point, designed the national nationals —“are to encour- interest served too a age parties attenuated man- their promptly raise claims Const., II, (“He Sanchez-Llamas, 14. See U.S. Art. shall at 2680 Power, by ("where have and with the Advice and Con- treaty provide particular does not Senate, Treaties, sent of the provided to make remedy, expressly implicitly, either it is present that two thirds Senators con- impose for the federal one courts cur”). own”), through lawmaking States of their (The petitioner require "asks us to Hamilton, 15. Alexander Papers, Federalist No. hear States to Vienna Convention claims postconviction raised for the first time in state Garamendi, proceedings. 539 U.S. at 420 n. Given the convention itself requirement, S.Ct. 2374. imposes per- no such we do not grounds proce- ceive for us to revise state Lopez, atU.S. 561 n. 115 S.Ct. 1624 fashion.”)(emphasis orig- dural rules in this Abrahamson, (quoting Brecht inal). 123 L.Ed.2d 353 Isaac, (1993)(quoting Engle v. 20. Id. at 2685. (1982))). 71 L.Ed.2d U.S. at 18.401 S.Ct. 746. unprecedented, unnec- important ligations. to the inter- But

and vindicate law’s essary, a exercise of finality judgments.”21 of When intrusive est system cannot the over the Texas court petitioner habeas asked United States authority supported foreign policy the Supreme in Sanchez-Llamas to ex- Court the conferred on him the United States empt Vienna claims from Convention default, consequence, a presi- of the Court re- Constitution. As the procedural rules requested “by was dential memorandum does not constitute a that the relief sponded measure, The new or factual for relief under extraordinary.”22 legal basis 11.071, 5, § Art. nor does it override 5’s exception pro- observed that the to requirements. requested cedural default rules (as one) to case in this “is accorded almost comments, I concur in With these the most right, including many no other of our of judgment regard analysis the protections.”23 constitutional fundamental other- president’s the memorandum and unprece- is The President’s action here join opinion. wise the Court’s dented. PRICE, J., concurring. extraordinary And action is such adversary necessary. system majority’s The offers analysis I with the agree rationale, and, therefore, join majority. foreign opportunity the national the the or Nevertheless, separately raise a claim before I to advise Vienna Convention write so, trial court of the during trial. If he does law enforcement this State honor of of Con- appropriate provisions in a to afford an Article 36 the Vienna position is remedy apprise foreign a vention and nationals judicial remedy appropri- is —if foreign treaty. national is their under rights at all.24 If the ate counsel, and counsel fails represented by however, issue, question is the keyA a issue in to raise the Vienna Convention whether Article 36 of the Vienna Conven- fashion, “safety timely valve” exists then rights upon tion individual even confers of an ineffective assistance form I it foreign detained nationals. believe claim that can be raised on counsel treaty language does. Pertinent cor- application initial writ habeas foreign “if so [the national] states detained are If all other avenues the state pus. requests, competent authorities exhausted, national can still foreign shall, delay, in- receiving State without of Pardons and Parole apply to Board ....”1 Since a post form the consular clemency. for executive and the Governor request that con- foreign national option national has the foreign And the notified, quite logical it sular official be is petition in the federal litigate a habeas it national’s to conclude that system. make whether personal decision to notified. This deci- consulate is or is not has made an admirable President public diplomatic in- not left to complicated sion is attempt to issue resolve rather, officials; is to decide. the detainee international ob- volving the United States’ Relations 1. Vienna on Consular Convention Id. ("Vienna Disputes Optional Protocol on Id. at 2687. 36(l)(b), Convention") April art. done U.N.T.S. 261. 21 U.S.T. at 2688. (expressing doubt about 24. See Id. remedy). judicial appropriateness aof

Furthermore, treaty its explicitly required the directs that fall within boundaries are to aiding consular officer desist in a de- faithfully comply with the Convention’s tained national if that the is national’s that agreed-upon provisions.6 fact language provides desire.2 This additional foreign only this State borders a nation support position for the that Article the need for authorities to be amplifies rights signatory- creates individual the for well-versed in the of Article 36. language It citizenry. apparent nation’s is the I believe this does not create an undue choice is left the na- foreign enforcement, brings burden on law but Though tional. the United States Su- light an obligation that must be fulfilled preme Court not directly has ruled on this hope reciprocat- the same manner we all is issue, strong on voice that Court favors by ed other nations whose detained nation- the position rights individual are con- might als be States citizens. With ferred the Vienna Convention.3 comments, I respectfully these additional join Article 36 of Vienna pro- majority. the Convention the vides nationals the option to invoke right

their of access and communication HERVEY, J., concurring. with the being consular officer.4 Without This international cause célebre centers option, aware of this majority vast applicant around this who makes no claim will certainly nationals arrested fail almost rape that he did brutally and murder right invoke this and succumb to our 16) teenage girls (ages two 14 and procedural default rules. I agree Since gang years ago fellow members over with the majority’s application proce- the summer of 1993. from The evidence dural default to Article I find it all the trial applicant’s 1994 that he shows boast- imperative more a foreign for national in participation ed about his active in these custody of law enforcement in this bragged crimes. He how about he sexual- treaty State to be informed of rights. his ly assaulted two victims. He related he Unless is informed of rights what his put that he foot on throat his of one of Convention, are under Vienna those difficulty he girls having because was rights will be of use no to him. One must strangling her with a she shoelace and be aware of rights these before one can girls unrecogniz- would not die. The were properly exercise them. it only Not able their when bodies were found. matter, imperative practical as a Article compels it.5 dragged This case has on an amount long equal entirety

So as the of time recognizes United States to almost the girls. Vienna Convention on many years, Consular Rela- lives these two For tions, courts, this State all applicant law enforcement both state and federal 36(l)(c). Id. treaty rights. Id. at art. grants that the individual - Oregon, 3. See U.S. Sanchez-Llamas -,-, 165 L.Ed.2d 36(1), supra Vienna Convention art. fn. (2006) J., (Ginsberg, concurring) (agree- ing Breyer, with the of Justice dissent Justice 36(l)(b), supra 5. See Vienna Convention art. Stevens Justice Souter that the Vienna ("The shall fn. 1 said authorities inform "grants rights Convention in- rights person delay concerned without of his judicial proceed- voked an individual in a sub-paragraph[.]”). under this ing”). Since the Court decided case procedural grounds, majority in default assumed, VI, deciding, without U.S. art. cl. 2. Const, Sanchez-Llamas Nevertheless, applicant that unparalleled received the almost due maintains has intentional, reckless, coun- process protections negli- afforded our lack of Now, half-way (other from around try’s than, laws. gent wrongdoing by the State world, the International Court of Jus- clairvoyance), perhaps, of and de- the lack in our tice its Avena decision has ordered privilege or spite any his non-assertion of applicant’s courts to review Article 36 state immunity to immunity, he is entitled applicant claim Vienna Convention which to heretofore not afforded citizen even raise until his state did not first Texas or Federal law— nonresident under The of the application. habeas President He ar- immunity procedural from default. request. a has made similar United States immunity gues simply that he has this But, really all of this is much ado about to be happened because he born and, nothing applicant because received essen- for approximately years ago soil tially by the Avena the review mandated reason, apply whatever has elected not to his initial state habeas cor- during decision citizenship. for United States proceeding.1 plus page Court’s 60 pus comments, join I With these Court’s applicant’s opinion disposing of current opinion. corpus application pro- successive habeas with much more than he applicant vides COCHRAN, J.,concurring, in which and is consistent with the deserves also JJ., JOHNSON, HOLCOMB, joined. unprecedented President’s memorandum join opinion except I all the Court’s States’ intent expressing the United dealing Section IIIB with the Presiden- for obligations discharge its international un- con- tial Memorandum. I am unable to “by having give State courts der Avena a the Presi- clude that memorandum from in to the decision accor- [Avena] effect Attorney to his constitutes dent General general principles comity.” dance with bind- the enactment of federal law is af- opinion proceeding The Court’s all on all state courts. This memoran- “respectful ing fords the Avena decision dum, compliance “in the deci- discussing consideration” it deserves accor- comity.” general principles dance with of Justice sion the International Court Avena, much a memo looks more like is no means a Finally, applicant General, in a his than law. The Solicitor stranger in He has lived strange land. brief, copy amicus has attached a of the country enjoyed its benefits in this memo, entitled “Memorandum President’s three-years he was old. From the since General[,]” as as well Attorney record, it that he is fluent En- appears by Attorney written Gen- copy of a letter surname, than his there is glish. Other to The Honorable eral R. Alberto Gonzales anything suggest that he is nothing Abbott, Attorney of the Greg General Indeed, he did not other than native-born. Texas, discussing that memo. We State police of his non-citizen- telling bother do not consider documents normally rights avail- ship. And the constitutional truth for the are attached to briefs all American persons able to accused But of contained within them.1 his, matters According courts are well. always judicial take record, this Court they scrupulously protected. course were See, adjudication already e.g., cant has received Brief of the Criminal Jus- Amicus entitled). says he which Avena is Legal (question tice at 5 of wheth- Foundation required comply are er the Texas courts Simpson, parte 136 S.W.3d See Ex appli- with Avena decision is moot because ("There provision (Tex.Crim.App.2004) no of printed general notice laws because are effect or are applicability legal laws and in promulgated government and official only against agencies, effective federal are readily any volumes and are to available drafted, reviewed, and a promulgated of interested member the public.2 and specific manner then in the published Register.3 Federal This is not writ- memo proclamations Presidential and Execu- orders, tive except prescribed those which do not have ten in the for manner Presiden- ...”). permits in article 11.071 that organizations either the State named or individuals applicant original or the habeas to Septem- submit Executive of Presidential Order 9, 1987, directly Evidentiary evidence to this Court. stipulates ber the manner in which affidavits, letters, transcripts, or other docu proposed proclamations Executive orders and relating a ments to habeas claim should not prepared, printed, published: are to be and briefs, they be attached to motions or and requirements include: these not, not, by and shall will be considered this by (g) the Proclamations issued President Court.”) State, Surety Ins. Co. Cal. v. of following shall conclude with the described (ex S.W.2d 331 (Tex.Crim.App.1977) hibi recitation— ts attached to a brief be cannot considered WHEREOF, I "IN WITNESS have hereun- papers part "as these are not of the official _ my day to set hand this of record”); Schoen, parte Ex 460 S.W.2d _, lord, year the the of our and of (Tex.Crim.App.1970) (supporting papers Independence of the United States of Amer- cause, pertaining to an extradition to attached the_ ica, record, appellate a document in the are not properly before they the court because were Routing approval Sec. 2. and of drafts. during proceed not introduced the habeas (a) A proposed procla- Executive order or ing). submitted, mation shall first be with seven thereof, copies to the Director of the Office State, 2. See Plaster v. 567 S.W.2d Management Budget, together of and awith (Tex.Crim.App.1978); Mosqueda Albright letter, signed by the properly head or other Co., Storage & 320 S.W.2d Transfer originating authorized of the officer Federal (Tex.Civ.App.-Fort Worth writ ref'd nature, agency, explaining purpose, n.r.e.) (op. reh’g). Mosqueda, In the court background, proposed and effect Ex- of the appeals suggested of civil that Texas courts proclamation ecutive order or and its rela- n must take judicial notice of laws tionship, any, pertinent to if laws and other States, the United including public all the proclamations. Executive orders or and Congress proc- acts resolutions of and (b) Manage- If the Director of the Office president lamations of the thereunder. Budget approves proposed ment and boards, adopted by Administrative rules proclamation, Executive order or he shall departments, pursuant and commissions Attorney transmit it General for his judicial federal statutes are also matters of legality. consideration as both form and knowledge. regulations When such are published Register in the Federal a federal Routing origi- Sec. 3. and certification of provides statute their contents shall (a) copies, procla- nals If the order or judicially be noticed. President, signed by mation is (quoting R. F. Young, Roy Ray Jr., & William original copies and two thereof shall be § Texas Law of Evidence Civil and Criminal forwarded to the Director Office (2d ed.1956)). Register publication the Federal in the Register. 1505(a)(1) ("Docu- Federal generally 3. See 44 U.S.C. (b) Register The Office of the having general applicability Federal shall legal ments placed upon copies cause to be of all effect means document issued under proper proclamations orders and for- authority prescribing penalty a or Executive conduct, (a) right, provided warded as this conferring privi- course of subsection notation, following lege, authority, immunity, signed imposing or section or by person obligation, applicable relevant or Director some author- class, general public, sign per- members of a ized him to such notation: “Certi- distinguished locality, original.” sons in a copy from fied to be a true or Executive Orders. tial Proclamations I style. memo private

It is written memo copy

am unable to find a of this Register. In in the Federal

published

fact, public only publication of I find on the

memo that can White I website.4

House Press Release Internet binding accept that proposition

cannot law, Congressional through

federal either Order, ac- can be

enactment Executive

complished press a Presidential through private a memorandum directed

release of Thus, Attorney I cannot

to the General. premise that the President’s

accept the federal Attorney

memo to his General is a supercede

law that could and obviate Thus, I explicit Texas

clear and statute.5 separa- it unnecessary find to undertake a Dekoatz, Paso, Appel- El for Matthew powers analysis majori- tion of does the lant. ty- Atty., Paso, El Esparza, Jaime District Austin, Paul, Atty., for

Matthew State’s State.

ORDER PER CURIAM. provisions of Article

Pursuant 11.07 the Texas Code of Criminal Proce- of EX PARTE Bruce Hamilton dure, clerk the trial court transmit-

LEE, Applicant. for writ application ted to this Court WR-28,164-02. No. Young, parte corpus. Ex habeas (Tex.Crim.App.1967). Ap- S.W.2d Appeals Criminal Texas. Court of delivery cocaine plicant was convicted of Nov. (18) im- eighteen years’ and sentenced

prisonment. eligible that he is

Applicant contends improperly but has been street time credit for time credit his sentence against denied The trial supervised release. served finding an order court has entered President, while http://www.whitehouse.g lative enactment ov/news/releas- Texas, signed into 18.html. of the State of Governor es/2005/02/20050228- "The Habeas Cor- law on June 1995. See Ironically, very law the President’s R.S., ch.319, Act,” Leg., pus 74th Reform supercede, memo article 11.071 would Tex. Gen. Laws 2764. Procedure, Iegis- of Criminal Texas Code

Case Details

Case Name: Ex Parte Medellin

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 15, 2006

Citation: 223 S.W.3d 315

Docket Number: AP-75207

Court Abbreviation: Tex. Crim. App.