Three Narratives of Medellin V. Texas

I. INTRODUCTION Every once in a while, a Supreme Court case comes along that holds a mirror up to the changing face of the American polity. Medellin v. Texas (1) (Medellin II) is such a case, reflecting divisive national debates over immigration, the death penalty, victims' rights, the scope of executive power, U.S. adherence to international human rights standards, the salience of international law to national security, and the appropriate role of judicial review of political decisions. Which of those issues stands out among the reflected images depends on who is peering into the mirror. For international law scholars, the significance of Medellin II lies in its reflection of America's relationship with the world, and in particular America's current ambivalence toward international law and the international regulation of human rights. (2) Medellin II is one in the line of criminal cases in which foreign nationals challenged the failure of law enforcement officials to meet the consular notification requirements of the Vienna Convention on Consular Relations (VCCR), (3) cases that arose because the United States retains the death penalty in the face of international legal abolition. (4) Thus, United States participation in the VCCR-a multinational treaty that codified traditional sovereign prerogatives to protect and provide services to nationals living in foreign states--provided an unexpected portal into the United States courts. This VCCR "norm portal" afforded transnational advocacy networks an opportunity to successfully challenge death penalty practices in the United States The facts of the case are well-known: (5) a Mexican national, Jose Medellin, was convicted in Texas state court of rape and murder and sentenced to death. Late in Medellin's appeals process, his lawyers learned that he had not been informed of his right to notify the Mexican consulate of his arrest, as required under Article 36 of the VCCR. His lawyers and the Mexican government pursued several avenues to seeking to set aside or have reconsidered his conviction and/or death sentence. Those disparate efforts took the form of a federal habeas corpus challenge, (6) diplomatic and political efforts, (7) requests for an advisory opinion of the Inter-American Court of Human Rights (IACtHR), (8) successful litigation brought by Mexico against the United States at the International Court of Justice (ICJ), (9) and, finally, a suit by the death row inmate against the State of Texas that twice reached the U.S. Supreme Court. (10) Along the way, the case evolved from a simple criminal appeal of a conviction and sentence handed down in a state viewed as the bulwark of capital punishment in the United States, (11) to a symbol of American exceptionalism to international regulation of the death penalty and resistance to international adjudication. (12) It also became a (presumably welcome) opportunity for the administration of George W. Bush to reassert a robust view of executive power-this time over the states and the courts. Medellin illustrates Alexis de Tocqueville's maxim that all the central political debates in the United States sooner or later resolve themselves as judicial questions. (13) The ICJ ruled against the United States in Avena, and held that Medellin, along with fifty other Mexican nationals on death row in the United States, was entitled to "review and reconsideration" of his conviction, notwithstanding domestic procedural rules to the contrary. The Supreme Court granted certiorari in Medellin I following the Avena decision. Following President Bush's subsequent determination that the United States would comply with the Avena decision, (14) Medellin I was dismissed on the grounds that certiorari has been improvidently granted. (15) After the Texas Court of Criminal Appeals rejected, on separation of powers and federalism grounds, the President's authority to order a Texas state court to comply with Avena and dismissed Medellin's petition for state habeas relief, the Supreme Court again granted certiorari. …