How Bush's Treaty Power Grab Failed

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Roger L. Wollenberg / Pool / Getty

Vice President Dick Cheney listens as President George W. Bush speaks to the media after meeting with the Bicameral Republican Leadership in the Oval Office of the White House February 15, 2008.

When it comes to power, the Bush Administration has always firmly believed two things: first, the President should have more of it; and second, international institutions like the U.N. should have less of it. In that respect, the landmark ruling on U.S. treaty commitments handed down by the Supreme Court Tuesday seems to be both good news and bad news for Bush and his hard-line colleagues in the office of the Vice President. The court slammed the door on a provocative power grab by the White House, but it also potentially undercut a whole category of treaties, in the process exposing America's weak system for complying with international law.

From the start, the case turned conventional wisdom on its head. The Administration had argued that Jose Medellin, a Mexican national convicted of rape and murder in Texas but denied access to Mexican consular officials after his arrest, should get a retrial as ordered by the International Court of Justice in the Hague. The idea of Bush and Cheney arguing to take a foreigner off death row because the U.N. court ordered it had baffled right-wingers and internationalists alike. John Bolton, Bush's former U.N. ambassador, called the Administration's position "ridiculous," "crazy," and a "cave-in" to the State Department. But the big brains at the White House were working with an ingenious plan, or so they thought.

Back in 1969, the U.S. had joined the Vienna Convention on Consular Relations, part of which requires countries to give arrested foreigners access to consular officials, as in the movies when a pin-striped diplomat soothes a worried American in some Third World dungeon. The Administration renounced that part of the treaty after the ICJ ruled Medellin should get a retrial. (The U.S. still abides by the parts of the Treaty governing immunity for embassy officials and sovereignty of embassy buildings.) Yet Bush told Texas to retry Medellin anyway — since the ICJ ruling came before the U.S. backed away from the treaty. In essence it was a double power grab: Bush wanted the right to unilaterally leave a treaty — and still order state courts to comply with obligations while the treaty was in effect. The move was supported by, among others, David Addington, Dick Cheney's chief of staff, a proponent of expanded presidential powers.

The Supreme Court had different ideas. In Tuesday's 6-3 decision, the justices rejected outright Bush's assertion that he could tell state courts what to do. But instead of issuing the final word themselves on whether Texas should retry Medellin, the justices said that was Congress's job. Most treaties, the Court ruled, don't automatically apply domestically unless the full Congress passes a separate law specifying how and when the treaty should be implemented.

Some liberals saw this double-tracking of treaty approval as an erosion of America's respect for international law. Law professor Marty Lederman of Georgetown University, writing on the widely read Scotusblog after the decision was handed down, called the majority opinion by Chief Justice John Roberts "an implausible interpretation" that was "potentially very troubling for construction of treaty obligations going forward." He worried that by letting states ignore treaties unless Congress ordered them to abide by them, the Supreme Court had opened the door for chaos in compliance with all international law.

Others worry about America's standing abroad. Though the U.S. abides by most treaty obligations, its reputation has been seriously damaged after eight years of high profile snubs by the Bush Administration — starting with the abrogation of the Anti-Ballistic Missile treaty, and peaking with Bush's war on terror end-runs around the Geneva Conventions and the Convention Against Torture. In fact, Bush's attempts to expand presidential power, and now the Medellin ruling, have exposed to Americans and foreigners alike the real problem: the weakness of the U.S. system for complying with international law.

America approves formal international treaties differently from almost all other countries, requiring the President and two-thirds of the Senate, but not the House, to sign off on them. Oona Hathaway, a professor at Yale Law School, surveyed countries around the world and found that only the U.S. and Tajikistan allow just one part of their legislature to approve a treaty and make it the law of the land. "Most countries make international law the same way they make domestic law," Hathaway says. The discrepancy has led American conservatives to argue that international law is anti-democratic and an abdication of sovereignty — and raises questions about when and whether Congress really intends Americans to comply with treaties.

Partly for that reason, most of America's international agreements no longer go through the cumbersome constitutional process anyway, Hathaway found. Between 5 and 20 formal treaties a year have been enacted by the Senate and the President for the last century. More often, international agreements are passed by votes in both chambers of Congress and signed by the President — like a regular law. Treaties approved that way have multiplied from 11 in 1930 to over 300 in 2006. The most famous example is NAFTA, which was passed by both chambers — including the Senate with less than two-thirds supporting it — and was signed by the President.

With the Medellin case, the Supreme Court may have accelerated that trend. By ruling that most traditional treaties only become the law of the land if the full Congress "implements" them, the justices made it more likely that political leaders will opt to pass them as if they were a domestic law. (The Court has previously upheld the full enforceability of treaties passed in that manner.)

That may produce concern abroad in the short term, as foreigners worry any U.S. state can now ignore existing traditional treaties that haven't been "implemented" by Congress. But by regularizing American treaty approval in the future, the Court may clarify and even strengthen the force of international law at home. In that sense, the Bush Administration may have lost twice in the Medellin case ruling.