Faculty Scholarship Digest

May 2009

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Article

John B. Quigley

John Quigley, President Bush’s Directive on Foreigners under Arrest: A Critique of Medellin v. Texas, 22 EMORY INT’L L. REV. 423 (2008).

This article considers a Supreme Court decision from last term in which, for the third time in three years, the Court denied relief to a death row inmate whose claim centered on the failure of state authorities to advise the foreign-national/arrestee of his right of consular access. Quigley, the leading authority on consular law, was counsel to an amicus curiae brief in this case. Medellin was a special case because, following an International Court of Justice (“ICJ”) decision finding against the United States, President George W. Bush determined that the United States would comply with the ICJ’s order “by having State courts give effect to the decision [for] . . . the 51 Mexican nationals [including Medellin] addressed in that decision.” The Texas state courts subsequently concluded that the law did not require them to follow the President’s determination and denied further substantive review to Medellin. So, even though the United States had taken the position that consular access was not an individual right, here the executive was on the side of the foreign national, arguing the President’s power to implement the ICJ decision.

As Quigley describes, the added weight of support of the United States as amicus curiae was not enough to produce a victory for the foreign national. The Court found that the case turned on whether the treaty was “self-executing” and concluded that it was not. The article contends that “self-execution” issues only arise when a private party is seeking to enforce a treaty and that the issue here, in contrast, was the President’s authority to enforce the treaty which, the article argues, was ample. Moreover, the article contends, the treaty properly construed under existing precedent would be self-executing, if that mattered. Quigley provides detailed arguments in support of both of these propositions. In a final section, the article suggests that the outcome “may be hazardous for the United States since consular law is affected by the degree of states’ mutuality in observing a given set of norms.” The article contends that, by overlooking a 2006 decision in Germany that incorporated the same ICJ decision into domestic law, the Supreme Court erroneously “seems to believe that it is acting consistently with other countries.”