Broadening Executive Power in the Wake ofAvena: An American Interpretation of PactaSunt Servanda

Table of ContentsI. Introduction 1220II. The Avena Decision and the Unilateral Executive Responses.... 1224A. Avena 1224B. The Presidential Memorandum 1229C. Withdrawal from the Optional Protocol 1230D. Medellin v. Dretke 1233III. Incongruent Foreign Policy 1234A. The Presidential Memorandum: Policy Considerations...... 12341. United States Citizens Abroad 12352. The Effective Conduct of Foreign Relations 12383. The Rule of Law in the International Community......... 1241B. Withdrawal from the Optional Protocol: Adopting Incongruence 12431. Harming United States Citizens Abroad 12462. The Ineffective Conduct of Foreign Relations 12473. Abandoning the Rule of Law in the International Community 1247IV. Political Factors: Contributing to the Incongruence 1248A. The Battle over Foreign Affairs: Broadening Executive Power 12481. The Presidential Memorandum's Potential Effect......... 12492. Withdrawal from the Optional Protocol: Further Practice and Precedent 1251B. The Lack of Congressional Response 1252C. Judicial Reluctance 12531. Avoidance of the Key Issues in Medellin v. Dretke...... 12542. The Unanswered Treaty Withdrawal Question 1256V. Perhaps Legal, but Ultimately Unconstitutional 1260A. Constitutionality and Legality 1260B. "Can Do" Lawyers Within the Executive Branch 1262C. Abandoning the Constitutional Scheme 1264VI. Conclusion 1268I. IntroductionNoting the sparse constitutional text articulating foreign affairs control,2 many scholars believe the Framers preferred a system in which the Legislative and Executive branches struggle for control of foreign relations.3 Nevertheless, Supreme Court rulings during the post-Vietnam era have increasingly accepted the broadening of presidential foreign policy-making power.4 Given this fact, it is not surprising that Presidents steadily attempt to amass foreign policy-making power through unilateral executive action.5 In the wake of the International Court of Justice's (ICJ) final judgment in case Concerning Avena and Other Mexican Nationals (Avena),6 President George W. Bush asserted unprecedented control over foreign affairs through dual unilateral executive actions.7In Avena, the ICJ held that the United States must afford fifty-one convicted Mexican nationals "review and reconsideration" because of Vienna Convention on Consular Relations (VCCR)8 violations.9 The Supreme Court intended to review the ICJ's finding in Medellin v. Drefke;10 however, before the Court could rule, President Bush took dual unilateral actions that caused a divided Court to dismiss the case.11 First, President Bush issued a Memorandum to Attorney General Alberto Gonzalez announcing that the states should comply with the ICJ's ruling in only those cases implicated in Avena.12 second, Bush directed secretary of State Condoleezza Rice to send a letter to the United Nations secretary-General Kofi Annan stating that the United States withdrew from the Optional Protocol to the VCCR.13 By taking these unilateral steps, the Executive Branch created a number of separation of powers conflicts. Specifically, the Memorandum violates principles of federalism and creates conflict between the Executive Branch and the states.14 The Memorandum also engenders conflict between the Executive and Judicial Branches because it purports to mandate judicial compliance with the A vena judgment. …