After the terrorist attacks against the United States on September 11, 2001, the balance of power between the executive and legislative branches of government in this country shifted. President Bush expanded the executive’s unilateral authority in international affairs and war powers. Both President Bush and President Obama have extended executive power, and then staunchly protected their expansion of authority from limitation by the legislative and judicial branches. Further, Bush’s use of presidential signing statements to undermine legislative intent suggests that the executive’s power to avoid legislative input may be virtually limitless.
The Supreme Court’s 2008 Medellín v. Texas decision appeared to be an example of the judiciary reversing that trend by countering an additional assertion of executive power. In Medellín, the Court rejected the President’s efforts to force Texas to comply with an International Court of Justice (ICJ) decision ordering reconsideration of Jose Medellín’s original conviction. However, while the Court facially limited the executive’s power in that instance, it also opened a new avenue for the President to exercise his authority with regard to treaty interpretation.
Since its earliest days, the Court has recognized a distinction between treaty terms that are automatically binding (“self-executing”) and those that require additional legislative attention (“non-selfexecuting”). However, early rulings were inconsistent and created confusion in applying this distinction. In Medellín, the Court attempted to clarify this area of the law by endorsing a strict text-based approach to treaty interpretation. Relying on that approach, the majority asserted the novel concept that a treaty term is not domestically enforceable without further action unless the language in the treaty clearly indicates that the parties intended the term to be self-executing.
This Comment argues that this approach to treaty interpretation creates a presumption of non-self-execution and effectively grants the executive the final say in deciding whether to enforce treaty obligations within the United States, thereby increasing executive power. This Comment further argues that this increase in executive power could undermine the constitutional role of legislators in the treaty-making process. Additionally, this Comment uses a hypothetical scenario to explore how the imbalance of power created by Medellín may lead to a situation where senators have standing to sue in their institutional capacity.
This is more challenging than it initially appears because legislators have more hurdles to overcome than private parties. However, if senators can show that the executive’s interpretation of a treaty is inconsistent with their intent, they could claim that their votes to ratify the treaty were rendered completely ineffective, thus establishing a claim of vote nullification. Vote nullification, an issue not often addressed by the Supreme Court, is the only injury that the Court has recognized as sufficient to create legislative standing. Further, the senators must show that the issue is a legal one instead of a matter that is better suited for the political branches of the government.
Thus, this Comment discusses the implications of Medellín on treaty interpretation, separation of powers, and legislative standing. Part I of this Comment discusses the development of the distinction between self-executing and non-self-executing treaties and the evolution of legislative standing. Part II presents a scenario raised by the Medellín holding where the executive could refuse to enforce a treaty obligation based on his unilateral interpretation that the relevant treaty terms were non-self-executing. Part III argues that the Court created a presumption of non-self-execution in the Medellín decision and explains how that presumption creates new executive powers. Part IV argues that if a president’s interpretation is inconsistent with Congress’s action on the treaty, members of Congress would have standing to sue in their institutional capacity. Additionally, this Part provides alternate recommendations to prevent the President from asserting unchecked power in treaty interpretation.
Turner, James A. “The Post-Medellin Case for Legislative Standing.” Comment. American University Law Review 59, no. 3 (February 2010): 732-779.