The Avena Act: An Option To Induce State Implementation of Consular Notification Rights After Medellín

Edward Duffy

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On August 5, 2008, the State of Texas executed José Ernesto Medellín for his participation in the brutal rape and murder of two teenage girls, ending a fifteen-year legal battle that implicated numerous questions of constitutional and international law.  Medellín alleged that he was prejudiced in his initial trial because Texas officials did not notify him of his right to seek consular assistance, a violation of the Vienna Convention on Consular Relations (VCCR).1  In the ensuing proceedings, the United States Supreme Court ruled that an International Court of Justice (ICJ) decision, which required domestic courts to give Medellín a rehearing, was not legally enforceable.  The Court also held that a memorandum from President Bush, which sought to give effect to the ICJ ruling, similarly did not bind domestic courts.  After Medellín, many questions remain unanswered, including Congress’s options for giving domestic effect to the ICJ ruling.

This posting, (and the Note from which it was derived) examines the options available to the federal government if it sought to implement the ICJ’s decision and advocates adoption of the “Avena Act”—proposed legislation that would induce states to implement the VCCR through conditional grants.  Given the legal and political constraints on implementation of the VCCR, I discuss the constitutionality and likely effectiveness of the Avena Act in inducing state implementation of the VCCR by utilizing conditional grants under the Spending Power.  This argument demonstrates that the Court should (and likely would) hold the Avena Act to be constitutional if challenged.  Furthermore, conditional grants satisfy federalism interests in a way that other forms of legislation do not.

Limitations on Federal Power to Implement Treaties

An attempt in the House of Representatives to create a federal right to review under the VCCR never made it out of committee, and questions remain as to whether Congress is constitutionally able to implement Avena and what tools of implementation are best suited for this effort.2  Despite the Supreme Court’s longstanding precedent of Missouri v. Holland3—which recognizes few restrictions on the federal power to enter into treaties—many commentators have called for more stringent constitutional limits on the Treaty Power.  Even though the Court may not heed these well-reasoned arguments, they are likely to persuade a number of policymakers.  Such policymakers are also likely to refrain from implementing a treaty that would infringe upon states’ rights for political and policy reasons, even if they felt constitutionally free to do so. 

The Treaty Power, granted by Article II, Section II of the Constitution, establishes that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .”4  Additionally, Congress uses its powers under the Necessary and Proper Clause5 to implement treaties that are non-self-executing—treaties that confer an international obligation on the United States but have no force domestically in the absence of implementing legislation.  In Missouri, Justice Holmes held that the federal government could implement non-self-executing treaties even if Congress could not enact comparable legislation in the absence of the treaty. 

Despite the current Court’s likely adherence to Missouri v. Holland, the scope of the Treaty Power is one of the most contested constitutional questions facing legal scholars.  Professor Nicholas Rosenkranz, for example, has persuasively argued that Justice Holmes’ opinion in Missouri is flawed and that the Treaty Power cannot expand Congress’s legislative powers, even though self-executing treaties can extend to subjects beyond the federal government’s other enumerated powers.6  Thus, where a treaty is non-self-executing, Congress cannot implement the treaty when it could not enact comparable legislation in the absence of the treaty. 

Although there is no indication that the Court will accept such an argument and overrule Missouri, many policymakers are likely to give this argument credence and oppose a treaty or treaty-implementing legislation that transcends these limits.  Judge Frank Easterbrook has noted that it is “non-controversial” that “[a]ny legislator may vote against a bill on constitutional grounds, including grounds that the Supreme Court has rejected.”7  There is also evidence, according to Professor Duncan Hollis, that executive branch officials may be reluctant to enter into a treaty regime when they have a narrow understanding of the Treaty Power.8

In addition to these possibly narrow constitutional interpretations of the Treaty Power, many legislators and executive officials are opposed to the use of sweeping treaties and treaty-implementing legislation as a matter of policy.  Allowing states to preserve autonomy within their traditional spheres of responsibility is valuable for many reasons, even if not constitutionally required in all instances.  For example, such state autonomy keeps decision-making power closer to the people, allows states to serve as “laboratories for experimentation,” preserves diversity across the states so that citizens can choose to live in states with policies that suit them, preserves accountability, and places limits on federal power.9  These concerns are especially pertinent when legislators are faced with treaty-implementing legislation that would otherwise be beyond the scope of the enumerated powers of the federal government.

The general constitutional and policy constraints upon the Treaty Power preclude the federal government from exercising certain methods to implement the Avena judgment.  There are three types of options at the federal government’s disposal that could confer a domestically enforceable substantive right upon aliens who are not read their VCCR rights: enacting federal legislation that would create a remedy, pursuing a constitutional amendment, or inducing states to provide a remedy.  The first option is problematic for the aforementioned constitutional and political reasons and the second is impractical.  This leaves the third option—inducing the states to provide a remedy—as the best course of action.

Inducing State Implementation of the Vienna Convention on Consular Relations

A conditional grant to the states can ensure that states implement the VCCR and prevent a breach of America’s international legal obligations.  Voluntary state implementation of treaty obligations has a generally favorable record in the United States and near-perfect compliance can be achieved by utilizing the Spending Power to induce state implementation of non-self-executing treaties.  This method also has the benefit of better preserving state autonomy.  Professor Rosenkranz has briefly discussed this method, but it has not yet been assessed in detail.10  Congress could enact the following “Avena Act” as a means to implement the VCCR: 

(a) No state or locality therein shall receive Justice Assistance Grant funding, unless that state satisfies the conditions set forth in parts (b) and (c) of this section.  This section does not bind a state that refuses receipt of funds.

(b) The state shall direct its agents to read the consular notification rights set forth in the Vienna Convention on Consular Notification, upon the arrest of an alien or realization that a person in state custody is an alien; the state shall then notify the nearest consulate of the alien’s home country and allow a representative of that consulate to consult with the alien upon request.

(c) In the event that an alien is detained for forty-eight hours or more before receiving the notification required by part (b) of this section, or if credible evidence is presented that state officials knew of the alien’s status and deliberately delayed in informing him or her of his or her rights under the Vienna Convention, then the state must provide for a hearing to determine if prejudice occurred regardless of when the alien raises this claim and irrespective of state procedural default rules.

(d) The Anti-Terrorism and Effective Death Penalty Act shall not be construed as precluding the hearing required by part (c) of this section.

(e) This section shall not be construed as preventing states or localities from providing additional remedies than those provided in this section.

Receipt of federal funds is often conditioned on states’ willingness to participate in a federal program, waive sovereign immunity over a particular subject, or fulfill some other obligation. Such conditions are often enacted after the state or locality begins receiving the funds to which the conditions are attached.  While many grants could constitutionally include such a condition, the Justice Assistance Grant (JAG) would be an attractive possibility.  In 2008, the Justice Department provided $165 million in assistance to local and state law enforcement agencies through this program.  Some conditions have already been imposed on the receipt of these funds.  By enacting the Avena Act, described above, Congress can further condition the receipt of JAGs upon states’ compliance with the Act, thus ensuring the United States’ compliance with the VCCR.

A.      Constitutionality of Avena-Implementing Conditions

Unlike other forms of legislation, conditional grants enable the federal government to implement treaties extending to matters beyond Congress’s other enumerated powers without violating the Constitution or disrupting the federal structure of government.  Thus, regardless of the constraints on the Treaty Power recognized by the Court, the Spending Power provides an independent grant of authority that is not limited by the other enumerated powers.  In South Dakota v. Dole, the Court established a five-part test to determine the constitutionality of a grant to the states: the spending program must be for the general welfare; the condition must not induce the states to do something that violates an express constitutional prohibition; the condition must be related to the spending program; the conditional grant cannot rise to the level of coercion; and the condition must be clearly stated.11   The Avena Act satisfies all five of these criteria.

Dole’s “general welfare” prong does not raise any difficulty for the Avena Act; both the JAGs and the VCCR-implementing conditions help Congress provide for the general welfare.  Similarly, the Avena Act does not raise problems under the second prong because there is no constitutional bar to state officials reading VCCR rights to arrested aliens.  The Avena Act would also pass the germaneness prong because there is a sufficient nexus between providing funding for police forces and ensuring that those police forces will not violate international legal obligations that the federal government has taken on.  The Court has upheld more tenuous relationships between conditions and grants in the past, and the federal government has an interest in seeing that its funds are not being used in a way that is contrary to a federal objective.  The Avena Act does not run afoul of the coercion prong; the JAGs involve a significant sum of money, but a state could raise taxes to make up for the difference if it so desires.  Finally, the VCCR-implementing conditional grant would satisfy Dole’s clarity requirement because the provision unambiguously identifies the general terms that the state must comply with to receive specified funds.


B.     Policy Advantages of the Avena Act

In addition to easily passing constitutional muster, the Avena Act both sufficiently safeguards federalism interests and ensures that the U.S. will meet its obligations under the VCCR. 

1.   Federalism

First, the Avena Act meaningfully protects federalism.  Some Treaty Power federalists argue that the Court’s current conception of the Spending Power is so broad that it is no different than preemption or commandeering, at least as a matter of policy if not constitutional law.  However, there are two key benefits of grants that induce state compliance over regulations that compel or coerce compliance.  First, states retain the option to not participate in the federal program.  If Congress sought to induce states to adopt a more extreme remedy for VCCR violations (such as foreclosing capital punishment or requiring dismissal of charges), many states would likely refuse the funds.  Second, the federal government must pay for state participation, requiring policymakers to decide the relative importance of state compliance.  The synergy between these two effects provides meaningful constraints on the federal government’s ability to utilize the Spending Power.  While preserving important tools for the federal government to promote important policy goals, the Court’s Spending Power jurisprudence also ensures that the states will continue to have an important role in the constitutional system.  The Avena Act provides a strong example of this balance.  It provides states with the incentive necessary to ensure America’s adherence to its VCCR obligations.  At the same time, the Act respects the federal system of government by leaving implementation of the Act within the states’ discretion and does not impose an onerous burden on the states.

2.   Satisfaction of International Legal Obligations

Second, the Avena Act provides a sufficiently strong inducement to reasonably ensure that states will implement the VCCR.  Critics have already dismissed the Spending Power as an insufficiently reliable method to implement international legal obligations.  However, these arguments do not appreciate the historical effectiveness of the Spending Power in inducing state participation in federal regulatory programs and states’ general willingness to voluntarily comply with international legal obligations.  In fact, many states have already taken significant steps toward implementing the VCCR.  Other nations with federal systems of government have also had success in implementing treaties at the state level, including Canada and Australia.  Furthermore, policymakers are more likely to approve the use of the Spending Power than they are to enact a law that commandeers the states to implement a treaty that goes beyond the scope of the enumerated powers.


The Spending Power thus provides a constitutional and reliable option for the implementation of certain non-self-executing treaties.  It is particularly effective to ensure state adherence to treaty obligations that require an affirmative role from state officials.  The role of police officers in reading aliens their VCCR rights is the quintessential example of such an obligation. Although it is not a panacea that can ensure the implementation of any conceivable non-self-executing treaty, the Spending Power is well-suited to ensure compliance with the VCCR and the ICJ decision in Avena.  Unlike other oft-discussed implementation methods of the VCCR, the Spending Power is both constitutional and protects state sovereignty.  It provides the federal government with a tool that can induce state compliance with sufficient reliability, while simultaneously preserving the states’ autonomy.  The Avena Act should satisfy both nationalists, who desire the tools to ensure American compliance with international obligations and full participation in international legal regimes, and federalists, who seek the preservation of a federal system of government.

Acknowledgments: I would like to thank Professor Nicholas Rosenkranz for his assistance in developing this Note. I would also like to thank the editors and staff of The Georgetown Law Journal, especially Shirin Hakimzadeh and Megan Woodhouse, for their editorial assistance. Finally, I would like to thank my family, particularly my fiancé, Crystal, for their constant support.

Copyright © 2010 Georgetown Law Journal.

Edward W. Duffy is a J.D. candidate at Georgetown University Law Center.

  1. Medellín v. Texas, 552 U.S. 491, 501–02 (2008); see also Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
  2. Cf. Ilya Shapiro, Medellín v. Texas and the Ultimate Law School Exam, 2008 Cato Sup. Ct. Rev. 63, 100 (arguing that Congress should not be able to implement a treaty against the death penalty by preempting state criminal law).
  3. 252 U.S. 416 (1920).
  4. U.S. Const. art. II, § 2, cl. 2.
  5. U.S. Const. art. I, § 8, cl. 18.
  6. Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1880–1918 (2005). “Treaties cannot confer new legislative powers on Congress.” Id. at 1927.
  7. Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 911 (1990).
  8. Duncan B. Hollis, Executive Federalism: Forging New Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327, 1330–31 (2006).
  9. See Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 386–405 (1997).
  10. See Rosenkranz, supra note 6, at 1919 n.238.
  11. South Dakota v. Dole, 483 U.S. 203, 207 (1987).

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