Medellin: The New, New Formalism?

Abstract

The Supreme Court's 2008 decision in Medellin v. Texas appears to represent a formalist turn in the Court's approach to foreign relations cases. The opinion emphasizes text as the key to treaty interpretation and it stresses the importance of the Constitution's specific law-making procedures. But the opinion does not deliver on its formalist promises. Emphasis on treaty text is undermined by the Court's insistence that the text reflects the intentions of the U.S. treaty makers, a questionable proposition with respect to the issue of domestic implementation raised by the case, and one that will raises serious interpretative difficulties down the road. Most significantly, however, the opinion is saddled with an unnecessary and unconvincing application of Justice Jackson's tripartite Youngstown framework. The Court concludes that President's effort to implement the treaty falls within the third category, but the indicia of Congressional intent that the Court relies on are weak, and the analysis works a substantial expansion of category III. Moreover, as the Court frames the issue - one of treaty interpretation - it is unclear why Youngstown should apply at all.