Mark Warren [legal researcher, Human Rights Research]: "Along with charting the boundaries of the President's foreign relations powers, the Medellin decision confirms the steady drift of the Roberts Court towards a major revision of the canons of treaty construction. The Court now claims that its many prior decisions upholding individual treaty rights stand for no more than the "unremarkable proposition that some international agreements are self-executing and others are not." Perhaps so, but the novel reasoning that a treaty must be non-self-executing whenever its compulsory enforcement can be vetoed by the United States at the UN Security Council leaves a disturbing whiff of 'might makes right' that the Court's conciliatory references to "international obligations" fail to conceal.

Particularly revealing is the majority's accusation that the President's memorandum (and by extension, the ICJ decision itself) is anathema because it "reaches deep into the heart of the State's police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws." Yet, at least as far back as Chief Justice Marshall's 1832 decision in Worcester v. Georgia it was recognized that a treaty does indeed trump a state criminal law or conviction, just as Ware v. Hylton confirmed in 1796 that state statutes of limitation must yield before a conflicting treaty obligation. The majority also suggests that it would be "extraordinary" for the ICJ's Avena decision to be binding domestically because even "basic rights guaranteed by our own Constitution do not have the effect of displacing state procedural rules." This unbounded deference to state criminal rules obscures the fact that procedural default is already subject to judge-made exceptions and can be waived for compelling reasons. As Justice Stevens noted in concurrence, the "entire Court and the President agree" that failing to implement the Avena Judgment will jeopardize the United States' "plainly compelling" interests. It is hard to imagine that the legal skies would fall by carving out another limited exception to procedural default, particularly one so clearly serving the national purpose.

Significantly, all of the Justices agreed on one central point: Congress has the clear authority to implement Avena, if it so wishes. According to the majority, the President has "an array of political and diplomatic means available to enforce international obligations," but the "responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress." It remains to be seen if this Administration is prepared to ask Congress to exercise that responsibility by implementing the United States' indisputably binding obligations under the Avena Judgment."