13 Lewis & Clark L. Rev. [i] (2009)

handle is hein.journals/lewclr13 and id is 1 raw text is: Lewis & Clark
Law Review

VOLUME 13                      SPRNGc 2009                     Nu'mR 1
Medellin: The New, New Formalism?
Ingrid  W uerth  ..................................................
The Supreme Court's 2008 decision in Medellin v. Texas appears
to represent a formalist turn in the Court's approach to foreign rela-
tions cases. The opinion emphasizes text as the key to treaty interpre-
tation 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 insis-
tence that the text reflects the intentions of the U.S. treaty-makers, a
questionable proposition with respect to the issue of domestic imple-
mentation raised by the case, and one that will raise serious interpreta-
tive 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 con-
cludes that the 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 expan-
sion of this category. Moreover, as the Court frames the issue-one of
treaty interpretation-it is unclear why Youngstown should apply at all.
Open Doors
Paul B.  Stephan  ................................................   11
This Article focuses on two issues left open by Medellin v. Texas.
First, do the courts of the United States have an obligation to accord
comity to judgments of international tribunals such as the Interna-
tional Court of Justice? Second, is it possible to construe a treaty as
delegating lawmaking authority to the Executive Branch, and if so,
what are the criteria for determining that a delegation is intended?
The Article argues that the comity doctrine rests on principles of reci-
procity and discrimination, and that such principles generally are
inapplicable to a treaty-based international tribunal. The Article fur-
ther argues that the Medellin majority failed to address the delegation
issue, and that strong arguments exist for inferring delegations from
particular treaty provisions. In particular, it is plausible to infer, from a
treaty commitment to submit a matter to binding dispute settlement
by an international tribunal, a limited delegation to the Executive of
discretionary authority to take necessary steps to bring the United
States into compliance with the tribunal's judgment.

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