Taming Madison's Monster: How to Fix Self- Execution Doctrine

INTRODUCTIONIn the Federalist Papers, James Madison invited readers to consider the hypothetical case of a federal constitution that provided for the supremacy of state law over federal law. In that case, he said,[T]he world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.1The modern doctrine of non-self-executing treaties (NSE doctrine) illustrates the problems posed by Madison's hypothetical monster.The Supreme Court's decision in Medettin v. Texas is an example.2 The United States has a treaty obligation under Article 94 of the UN Charter "to comply with the decision of the International Court of Justice [(ICJ)] in any case to which it is a party."3 When President Truman ratified the Charter in 1945, after the Senate voted 89-2 in favor of ratification, the United States made a binding commitment to comply with ICJ decisions.4 Since the Charter was ratified, neither Congress nor any President has repudiated that commitment. At issue in Medellin was the ICJ decision in the "Avena case," where the ICJ ordered the United States to provide judicial hearings for fifty-one Mexican nationals on death row in the United States.5 Medellin was one of the named Mexican nationals; he was on death row in Texas. President Bush directed State courts to "give effect to the [Avena] decision . . . in cases filed by the 51 Mexican nationals addressed in that decision."6 However, Texas defied the President's order and the U.S. Supreme Court allowed Texas to do so. The Court based its decision on the distinction between "self-executing" and "non-self-executing" treaties;7 it held that Article 94 of the UN Charter is not self-executing. As a result of Medellin, the United States stands in ongoing violation of a legally binding treaty commitment, but no national political authority ever decided to violate the treaty. Thanks to Medellin and to the transformation of NSE doctrine after World War II,8 Madison's monster has come to life. The head is under the direction of the members.On the other hand, perhaps the head retains control. Even after Medellin, Congress could enact legislation requiring Texas and other states to comply with the Avena decision or with iCJ decisions generally. Several bills to that effect have been proposed, but Congress has not enacted such legislation.9 The central problem is congressional inertia; recently, Congress has been so deeply divided that it is difficult to pass any new federal legislation.By holding that Article 94 is not self-executing, the Court effectively barred judicial enforcement of Article 94, absent congressional legislation. By barring judicial enforcement, the Court virtually guaranteed noncompliance: because the Avena judgment requires the United States to provide judicial hearings for the named Mexican nationals, Article 94 requires the United States to comply with Avena and congressional inertia makes it very difficult to pass the requisite legislation. Conversely, if the Court in Medellin had held that Article 94 is self-executing, Congress could have enacted legislation to bar judicial enforcement of Article 94, but it would have needed to overcome congressional inertia to do so. Absent legislation, state courts would have been required to apply the Avena decision, thereby promoting treaty compliance.10 Therefore, NSE doctrine is consistent with federal political control, at least in theory, because Congress could reverse the practical effect of a holding of self-execution, or a holding of non-self-execution, by enacting appropriate legislation.The key words in the previous sentence are the words "in theory." To confront Madison's monster, we must move from theory to practice. …