The U.S. Supreme Court delivered a major opinion on Tuesday that limits the force of many U.S. treaties and rejects President Bush's assertion that he can unilaterally order state governments to comply with treaties.
As the U.S. Constitution reads, "All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby..." So when the Senate ratifies a treaty with a two-thirds vote, does that mean the treaty provisions are binding on the states?
The Supreme Court ruled that they are binding only if the treaty explicitly says so or if there is legislation to make that clear. For all of American history, many treaties have been deemed to be what is called "self-executing," meaning that their provisions are automatically binding. But not all treaties fall into this category. The Supreme Court's ruling set a bright line for which treaties are self-executing — namely, those that explicitly say so or have accompanying legislation that says so.
The court said the president, acting on his own, cannot make a treaty binding on the states.
The ruling came in a death penalty case involving a treaty enacted in 1969 that guaranteed foreign nationals access to diplomats from their home countries if they are accused of crimes. Although the provision was inserted at the insistence of the United States to protect its citizens abroad, state and local governments in the U.S. were slow to honor it. In 2004, the Mexican government went to the International Court of Justice on behalf of 51 of its citizens on death row in the United States who had not been told of their right to consular access, and thus, did not have the benefit of the Mexican government's help at the time of their trials.
The international court ruled that the United States had violated its treaty obligations and ordered the U.S. to in some form reconsider the death sentences. Bush then withdrew from the part of the treaty subjecting the United States to the international court's jurisdiction.
But for those 51 individuals, he ordered the state courts to comply. His home state of Texas refused, asserting that the president's unilateral assertion of power was unconstitutional. On Tuesday, the U.S. Supreme Court agreed by a 6-3 majority.
Writing for the court, Chief Justice John Roberts said that because the treaty did not explicitly say its provisions were binding, and because there was no legislation to make the treaty binding, the president could not on his own force the states to comply.
"There is no reason to believe that the president and the Senate signed up for such a result," he said.
The dissenting justices, Stephen Breyer, Ruth Bader Ginsburg and David Souter, said some 70 existing treaties are in jeopardy because of Tuesday's ruling.
Many U.S. diplomats were dismayed. Yale Law School Dean Harold Koh, who served as a State Department official in the Clinton administration, said the decision would create havoc in diplomatic circles for some time to come.
"If our international allies have no assurance that we're actually going to keep our word, then they have much less incentive to keep their word when they're being obliged to do something," he said.
But Charles Cooper, a former Reagan administration official, said Bush had gone too far.
"The notion that the president can himself unilaterally determine that it shall be a binding domestic law, even to the point of preempting state laws dealing with criminal procedure, is a breathtaking proposition, and that's what the court rejected," he said.
Temple law professor Duncan Hollis, an expert on international law, said that nonetheless, Tuesday's ruling will have practical consequences. Because enforcement of some existing treaties may now be in doubt, negotiations over future treaties could be more difficult, he said, with general assurances of enforcement failing to suffice.
Arguments Test Rights of Americans Held in Iraq
After the treaty decision was announced, the court heard arguments in the cases of two men, both American citizens, who are challenging their detention by U.S. forces in Iraq. The men traveled to Iraq after the war — one as a translator for journalists, the other allegedly seeking reconstruction work.
The United States claims they are terrorists and wants them turned over to the Iraqis for trial and potentially execution. The men say they are innocent and contend they are entitled to a hearing in the U.S. courts to test the basis for their detention before being turned over.
Deputy Solicitor General Greg Garre, representing the Bush administration, told the justices that when U.S. citizens go abroad, they cannot then come back to the U.S. courts to complain about their arrest and trial in other countries.
"Could they be released to a lynch mob?" Justice Anthony Kennedy asked.
Garre responded that the Iraqi courts are functioning under fundamental standards.
Lawyer Joseph Margulies, representing the two men being held in Iraq, faced even tougher questioning.
When Margulies fudged about whether U.S. citizenship is key to his case, Ginsburg asked if a U.S. citizen who is facing torture if released to a foreign government should be protected, while a non-citizen should be thrown to the "lion's den." When Margulies said no, Justice Antonin Scalia came back at him from the other direction: "To say that the whole world has the protections of the U.S. Constitution is extravagant!"