Jordan J. Paust, (University of Houston Law Center) has posted a new article on SSRN entitled: “Medellin, Avena, the Supremacy of Treaties and Relevant Executive Authority” , Suffolk Transnational Law Review, Vol. 31, p. 301, 2008/ U of Houston Law Center No. 2009-A-25. Here is the abstract:
The article addresses treaty-based obligations of the United States under the United Nations Charter to enforce a binding judgment of the International Court of Justice in Case Concerning Avena (Mexico v. United States) and U.S. Executive execution of the judgment through an executive memorandum – all of which the majority of the Supreme Court disagreed with in Medellin v. Texas (2008). The article also addresses important U.S. Constitutional issues concerning the Article II mandate to the President to faithfully execute the laws, the supremacy of all treaties against the laws of states within the U.S., federal preemption, and state power to comply with decisions of the International Court of Justice. In particular, the article addresses several Supreme Court opinions that were not addressed by the majority in Medellin and which demonstrate that the President has the competence, and responsibility, faithfully to execute treaties despite a statement in the majority opinion to the contrary. The article also documents why the Tenth Amendment is no barrier with respect to the reach of treaty law and documents numerous federal and state court cases on point as well as the many subjects regulated by treaty law that have had primacy over state authority.