The Avena Act: An Option To Induce State
Implementation of Consular Notification Rights
After Medellı́n
EDWARD W. DUFFY*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
796
I. MEDELLı́N AND THE FUTURE OF THE VIENNA CONVENTION ON
CONSULAR RELATIONS IN THE UNITED STATES . . . . . . . . . . . . . . . .
797
II. LIMITS ON FEDERAL POWER TO IMPLEMENT TREATIES . . . . . . . . . . .
801
A.
CONSTITUTIONAL LIMITS ON CONGRESS’S POWER TO IMPLEMENT
.......................................
801
.....
804
...........................
806
III. THE SPENDING POWER AS A CONSTITUTIONAL ALTERNATIVE . . . . . . .
808
TREATIES
B.
POLITICAL AND CONSTITUTIONAL POLICY CONSIDERATIONS
C.
THE CONSTITUTIONAL AND POLICY PROBLEMS OF VCCR
IMPLEMENTATION OPTIONS
A.
FUNDS MUST BE SPENT FOR THE GENERAL WELFARE
..........
B.
THE CONDITION CANNOT INDUCE STATE VIOLATION OF THE
811
...................................
812
............
813
..........
814
..........................
815
IV. THE POLICY RATIONALES FOR USING THE SPENDING POWER TO
INDUCE STATE IMPLEMENTATION OF THE VCCR . . . . . . . . . . . . . . .
817
CONSTITUTION
C.
GERMANENESS OF THE CONDITION TO THE GRANT
D.
ABSENCE OF COERCION IN THE CONDITIONAL GRANT
E.
CLARITY OF THE CONDITION
A.
SAFEGUARDING CONSTITUTIONAL POLICY AND FEDERALISM
VALUES
B.
........................................
817
........
818
SATISFACTION OF INTERNATIONAL LEGAL OBLIGATIONS
* Georgetown Law, J.D. expected 2010; Georgetown University, B.S.F.S. 2007. © 2010, Edward W.
Duffy. 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.
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1.
The General Efficacy of the Spending Power . . . . . . . . .
819
2.
States’ Voluntary Role in Treaty Implementation . . . . . .
819
3.
The Efficacy of the Spending Power Inducement in
Treaty Implementation . . . . . . . . . . . . . . . . . . . . . . . . .
823
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
825
INTRODUCTION
On August 5, 2008, the State of Texas executed José Ernesto Medellı́n 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.1 Medellı́n 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).2 In
the ensuing proceedings, the United States Supreme Court ruled that an International Court of Justice (ICJ) decision, which required domestic courts to give
Medellı́n a rehearing, was not legally enforceable.3 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.4 After Medellı́n, many issues
remain unanswered, including Congress’s options for giving domestic effect to
the ICJ ruling.5
This Note examines the options available to the federal government if it
sought to implement the ICJ’s decision and proposes the adoption of new
legislation, the “Avena Act,” that would induce states to implement the VCCR
through conditional grants. The Note first describes the procedural history of
Medellı́n’s case so that the reader can understand the context in which potential
legislation might emerge. It then goes on to discuss the constitutional and
political constraints on the federal government’s ability to implement treaties.
With these constraints in mind, the Note discusses 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. The Note then shows why conditional grants satisfy
federalism interests in a way that other forms of legislation do not and discusses
1. James C. McKinley, Jr., Texas Executes Mexican Despite Objections From Bush and International
Court, N.Y. TIMES, Aug. 6, 2008, at A19.
2. Medellı́n 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. All short-form citations in which the
case name is simply “Medellı́n” refer to this United States Supreme Court decision.
3. Medellı́n, 552 U.S. at 522–23.
4. Id. at 530–32.
5. See Ilya Shapiro, Medellı́n v. Texas and the Ultimate Law School Exam, 2008 CATO SUP. CT. REV.
63, 101–02 (discussing the implications of Medellı́n and some options the government could pursue to
implement the ICJ decision). Shapiro provides an excellent review of Medellı́n and its implications.
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the likely effectiveness of the Avena Act in inducing state compliance with the
VCCR.
I. MEDELLı́N AND THE FUTURE OF THE VIENNA CONVENTION ON CONSULAR
RELATIONS IN THE UNITED STATES
Fifteen years prior to his eventual execution, Medellı́n committed a crime
that would initiate a plethora of constitutional and international adjudication.6
Medellı́n, a Mexican citizen but longtime resident of the United States, was a
member of a Houston gang.7 Medellı́n and several other gang members assaulted two teenage girls, raping and then killing them.8 Medellı́n’s subsequent
boasting about the crime led to his arrest.9 While in state custody, Medellı́n was
not informed of his consular notification rights by police.10 Under the VCCR,
police officers must inform arrested foreign nationals of their right to contact
their embassy or consulate for legal assistance, and arrested foreigners can then
request that police contact their embassy or consulate.11 A Texas state trial court
found Medellı́n guilty and sentenced him to death, and the Texas Court of
Criminal Appeals affirmed the conviction and the sentence.12 Medellı́n failed to
mention before either the trial or appellate court that he had not been read his
VCCR rights.13
After the Texas Court of Criminal Appeals affirmed the conviction on direct
appeal, Medellı́n brought several state habeas petitions, arguing that Texas
officials did not notify him of his right to consular assistance, as required by the
VCCR.14 All courts considering these petitions held that Medellı́n had waived
any VCCR claim by not raising it on direct appeal, per state procedural default
rules.15 Both the Texas trial court and the federal district court on habeas also
held that, in any event, no prejudice resulted from the lack of consular notification.16 During these proceedings, the ICJ decided Case Concerning Avena and
Other Mexican Nationals, which specifically named fifty-one Mexicans on
death row in the United States, including Medellı́n, and purported to adjudicate
6. Medellı́n, 552 U.S. at 500–01.
7. Id.
8. Id.
9. Ex parte Medellı́n, 223 S.W.3d 315, 358 (Tex. Crim. App. 2006) (Harvey, J., concurring).
10. Medellı́n, 552 U.S. at 501.
11. Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.
261.
12. See Medellı́n, 552 U.S. at 501 (citing Appendix to Brief for Respondent at 2-31, Medellı́n v.
State, No. AP-71997 (Tex. Crim. App. May 16, 1997)).
13. See id.
14. See id. at 502 n.1.
15. See id. at 501–02.
16. See Brief in Opposition to Petition for Certiorari and Application For Stay of Execution to the
Court of Criminal Appeals of Texas, and On Motion to Recall and Stay the Court’s Mandate in
Medellı́n v. Texas at 12–16, Medellı́n v. Texas, 129 S. Ct. 360 (2008) (No. 08-5773, 08A98) (citing
orders from Texas state trial court and federal district court concluding on habeas review that Medellı́n
was not prejudiced).
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their specific claims of VCCR violations.17 The ICJ exercised jurisdiction over
the case pursuant to the Optional Protocol to the VCCR,18 to which Mexico and
United States were parties.19 According to the ICJ, the United States had
breached its duties under the VCCR20 and was obligated to provide defendants
whose rights were violated with review and reconsideration of their convictions.21
During these proceedings, President Bush wrote a memo to the United States
Attorney General that stated: “State courts [would] give effect to the [Avena]
decision in accordance with general principles of comity in cases filed by the 51
Mexican nationals addressed in that decision.”22 The Texas Court of Criminal
Appeals still held that neither the ICJ’s adjudication of Medellı́n’s claim nor the
presidential memorandum that sought to give it effect had any legal bearing on
Medellı́n’s case (nevertheless indicating that there had been no prejudice as a
result of the VCCR violation).23 The Supreme Court granted certiorari to
address whether the ICJ’s decision was immediately binding on state courts and,
if not, whether the President’s memorandum could give it such binding effect.24
Chief Justice Roberts delivered the Court’s opinion, which first determined
that the Avena decision itself did not bind United States courts.25 A provision of
the U.N. Charter, rather than the VCCR or the Optional Protocol to the VCCR,
was the relevant treaty provision because it identified the international legal
obligation of states to “undertake[] to comply with the decision of the [ICJ].”26
The Court held that Avena did not create a self-executing legal obligation
because neither the Optional Protocol nor the U.N. Charter requires domestic
17. (Mex. v. U.S.), 2004 I.C.J. 12, 53–55 (Mar. 31).
18. Id. at 24.
19. Id.
20. Id. at 50 (“[T]he Court concludes that the United States violated the obligation incumbent upon
it under Article 36 . . . .”).
21. Id. at 73 (“[S]hould Mexican nationals nonetheless be sentenced to severe penalties, without
their rights under Article 36, paragraph 1 (b), of the Convention having been respected, the United
States of America shall provide, by means of its own choosing, review and reconsideration of the
conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in
the Convention.”).
22. Memorandum from President George W. Bush to the Att’y Gen. of the U.S. (Feb. 28, 2005),
available at http://lawofnations.blogspot.com/2005/03/medellin-memorandum-from-president.html.
23. Ex parte Medellı́n, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006).
24. Medellı́n v. Texas, 550 U.S. 917, 917 (2007) (granting certiorari); Petition for Writ of Certiorari,
Medellı́n v. Texas, 552 U.S. 491 (2008) (No. 06–984), 2007 WL 119139, at *1 (framing questions
presented).
25. Medellı́n v. Texas, 552 U.S. 491, 522–23 (2008).
26. Id. at 509 n.5 (quoting U.N. Charter art. 94, para. 1); see generally Optional Protocol to the
Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes art. 1,
Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 (establishing requirement that states “undertake to
comply” with ICJ decisions). The United States withdrew from the Optional Protocol in 2005. See
Medellı́n, 552 U.S. at 500 (citing Letter from Condoleezza Rice, Sec’y of State, to Kofi A. Annan,
Sec’y-Gen. of the UN (Mar. 7, 2005)).
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courts to give ICJ rulings effect.27 The Court first concluded that the Optional
Protocol merely confers jurisdiction on the ICJ and does not determine the
effect of a ruling once the ICJ exercises its jurisdiction.28 Instead, Article 94 of
the U.N. Charter explains the effect of such rulings. This Article states only that
each state must “undertake[] to comply with the decision of the International
Court of Justice,”29 thus indicating that the obligation was a non-self-executing
provision.30 Furthermore, the U.N. Charter provides an enforcement mechanism
for ICJ decisions through the Security Council, suggesting that enforcement by
a domestic court system was not contemplated.31 The ICJ Statute further
supported this position, stating that decisions of the ICJ were not binding on
individuals.32 Based on these factors, which evidenced the Senate’s intent to
ratify the pertinent treaties, the Court determined that the Avena judgment could
not independently have legal force in United States courts.33
The majority similarly concluded that the presidential memorandum could
not bind domestic courts.34 Chief Justice Roberts held that the President could
not “convert[] a non-self-executing treaty into a self-executing one,” despite the
other treaty-implementing means at his disposal.35 In ratifying the U.N. Charter
and Optional Protocol with the understanding that they were non-self-executing,
the Senate definitively withheld plenary power to implement that treaty through
unilateral action from the executive; such implementation would have to take
the form of usual legislation.36 Furthermore, the memorandum was not a
legitimate exercise of the President’s inherent foreign affairs power because it
was neither long recognized nor inherently incident to his powers as the chief
executive.37
Justice Stevens concurred in the judgment of the Court but stressed several
additional points. He first stated that the question of self-execution was closer
than the majority had indicated, particularly given the absence of an express
27. Id. at 519 (“We do not suggest that treaties can never afford binding domestic effect to
international tribunal judgments–only that the U.N. Charter, the Optional Protocol, and the ICJ Statute
do not do so.”).
28. Id. at 508.
29. See U.N. Charter art. 94, para. 1.
30. Medellı́n, 552 U.S. at 508–10.
31. Id. at 510–11; see generally U.N. Charter art. 94, para. 2 (“If any party to a case fails to perform
the obligations incumbent upon it under a judgment rendered by the Court, the other party may have
recourse to the Security Council, which may, if it deems necessary, make recommendations or decide
upon measures to be taken to give effect to the judgment.”).
32. Medellı́n, 552 U.S. at 511–12. See generally Statute of the International Court of Justice art. 59,
June 26, 1945, 59 Stat. 1055, 1062, 33 U.N.T.S. 993 (“The decision of the [ICJ] has no binding force
except between the parties and in respect of that particular case.”).
33. Medellı́n, 552 U.S. at 522–23. The Court did note, however, that underlying treaties could still
be self-executing, despite the non-self-executing status of an ICJ judgment. Id. at 520–21.
34. Id. at 529–32.
35. Id. at 525.
36. Id. at 526–28.
37. Id. at 530–32. Neither was it a valid exercise of the President’s power to “take Care that the
Laws be faithfully executed.” Id. at 532 (quoting U.S. CONST. art. II, § 3).
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declaration.38 Additionally, he reaffirmed that, irrespective of the non-selfexecuting nature of the Avena decision, the ICJ’s judgment still conferred an
international legal obligation on the United States.39 Justice Stevens further
stated that it was up to Texas to uphold this legal obligation and to protect the
nation’s reputation for keeping its international commitments.40
In his dissent, Justice Breyer focused on the first issue, arguing that the ICJ
judgment did have direct domestic effect that required Texas courts to grant a
rehearing to Medellı́n.41 Justice Breyer utilized a seven-factor test to determine
that the ICJ decision should be treated as binding.42 Because he found the treaty
to be self-executing, Justice Breyer would have remanded the case to the Texas
courts to determine if Medellı́n had been subject to prejudice.43
Groups continued their efforts to aid Medellı́n after this ruling. Several
congressmen introduced a bill, the Avena Case Implementation Act, which
would have created a federal cause of action for defendants whose VCCR rights
had been violated, thus preempting state procedural default rules.44 This bill,
however, never made it out of committee.45 Medellı́n’s attorneys also attempted
to persuade the Supreme Court to stay the execution in an eleventh-hour filing
of briefs.46 By a 5-4 majority, however, the Court refused to grant the stay.47 In
38. Id. at 533 (Stevens, J., concurring in the judgment).
39. Id. at 535–36.
40. Id. at 536–37.
41. Id. at 538–39 (Breyer, J., dissenting). Justice Breyer devoted only a page of his opinion to the
issue of the President’s ability to give the Avena judgment binding domestic effect, and he did not
indicate his position on the subject. Id. at 564–66; see also Shapiro, supra note 5, at 84–85 (stating that
Justice Breyer avoided taking a position on the issue).
42. Medellı́n, 552 U.S. at 551–62. For a concise description of Justice Breyer’s seven-part test, see
Shapiro, supra note 5, at 84–85.
43. Medellı́n, 552 U.S. at 551–62.
44. Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong. (2008), available at http://
www.govtrack.us/congress/billtext.xpd?bill⫽h110-6481. The Act sets forth:
(a) Civil Action- Any person whose rights are infringed by a violation by any non-foreign
governmental authority of article 36 of the Vienna Convention on Consular Relations may
in a civil action obtain appropriate relief.
(b) Nature of Relief- Appropriate relief for the purposes of this section means—
(1) any declaratory or equitable relief necessary to secure the rights; and
(2) in any case where the plaintiff is convicted of a criminal offense where the violation
occurs during and in relation to the investigation or prosecution of that offense, any
relief required to remedy the harm done by the violation, including the vitiation of the
conviction or sentence where appropriate.
(c) Application- This Act applies with respect to violations occurring before, on, or after the
date of the enactment of this Act.
Id.
45. See Mary D. Halerman, Medellı́n v. Texas: The Treaties That Bind, 43 U. RICH. L. REV. 797, 812
(2009) (“The federal legislation in question, the Avena Case Implementation Act of 2008, remains in
the House Judiciary Committee at the time of this article’s publication.” (citations omitted)).
46. Application for Stay of Execution Pending Disposition of Motion to Recall and Stay the
Mandate and Petition for Writ of Certiorari or Writ of Habeas Corpus, Medellı́n v. Texas, 552 U.S. 491
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the per curiam opinion, the Court stated that it could not stay the execution
because of a hypothetical possibility that Congress or the Texas legislature
would enact a law to implement Avena.48 The Court also discussed the merits of
Medellı́n’s claim, indicating that the potential for prejudice stemming from the
VCCR violation was dubious.49 Medellı́n was executed by lethal injection
following the Court’s refusal to grant the stay.50
II. LIMITS ON FEDERAL POWER TO IMPLEMENT TREATIES
In the wake of Medellı́n’s execution, questions remain as to whether Congress is constitutionally able to implement Avena and what tools of implementation are best suited for this effort.51 This Part first argues that there are
significant limits to Congress’s power to implement non-self-executing treaties
and that, while the courts have not recognized such limits, some policymakers
have likely exercised their independent interpretation of the Constitution and
refrained from treaty-making or implementation. In addition to these constitutional limitations, this Part addresses related policy considerations, including
preservation of state sovereignty and principles of federalism, which counsel
against directly preempting state law governing matters beyond the enumerated
powers of the federal government. Finally, this Part explains how these limitations together constrain Congress’s options for implementing the VCCR specifically.
A. CONSTITUTIONAL LIMITS ON CONGRESS’S POWER TO IMPLEMENT TREATIES
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 . . . .”52 Additionally, Congress uses its powers under the Necessary and Proper Clause53 to implement treaties that are non-self-executing—
treaties that confer an international obligation on the United States but have no
(2008) (No. 08-5573); Reply to Brief in Opposition to Petition for Certiorari and to Response to
Petition for Habeas Corpus, Motion to Recall and Stay Mandate, and Application for Stay of Execution,
Medellı́n, 129 S. Ct. 360 (Nos. 08-5573, 08-5574, 08A98, 08A99); see also Shapiro, supra note 5, at
92–93 (describing petitions filed).
47. Medellı́n v. Texas, 129 S. Ct. 360, 361–62 (2008) (per curiam).
48. Id. at 361. The four dissenting justices each issued their own opinions. Id. at 362 (Stevens, J.,
dissenting); id. at 362–63 (Souter, J., dissenting); id. at 363 (Ginsburg, J., dissenting); id. at 363–64
(Breyer, J., dissenting).
49. Id. at 361 (majority opinion).
50. See Shapiro, supra note 5, at 95.
51. Cf. id. at 100 (arguing that Congress should not be able to implement a treaty against the death
penalty by preempting state criminal law).
52. U.S. CONST. art. II, § 2, cl. 2.
53. U.S. CONST. art. I, § 8, cl. 18.
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force domestically in the absence of implementing legislation.54 The federal
judiciary has recognized few limits on the scope of the Treaty Power since
Missouri v. Holland,55 the canonical Supreme Court case on the issue.56 In
Holland, 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.57 The Supreme Court has recently reaffirmed
the rule of Holland.58
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.59 Two principal camps have emerged: the “federalists,” who are
generally critical of Holland and advocate a narrow conception of the Treaty
Power as a matter of constitutional law, and the “nationalists,” who support a
broad notion of the Treaty Power and defend Holland.60
While the federalists have articulated many arguments for narrowing the
scope of the Treaty Power,61 the most persuasive has been made by Professor
54. See, e.g., Missouri v. Holland, 252 U.S. 416, 432 (1920) (upholding use of Necessary and Proper
and Treaty Clause Powers to implement treaty through legislation that Congress could not have enacted
in the absence of the treaty).
55. 252 U.S. 416 (1920).
56. The Court pronounced the sole limitation to this doctrine in Reid v. Covert, 354 U.S. 1, 18
(1957) (holding that a treaty could not violate an express constitutional requirement, such as an
individual’s right to a jury trial in a capital case, but reaffirming Holland by noting that for treaties “the
people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier”).
57. Holland, 252 U.S. at 433–34.
58. United States v. Lara, 541 U.S. 193, 201 (2004) (“[A]s Justice Holmes pointed out, treaties made
pursuant to [the Treaty Power] can authorize Congress to deal with ‘matters’ with which otherwise
‘Congress could not deal.’” (citing Holland, 252 U.S. at 433)). Notably, however, the majority opinion
in Medellı́n did not cite to Holland, prompting some to assert that the current Court might overrule
Holland. See Nicholas Quinn Rosenkranz, The Federalist Society Online Debate Series—Medellin v.
Texas, Part II: Presidential & Congressional Power, Apr. 1, 2008, http://www.fed-soc.org/debates/dbtid.18/
default.asp (“In the Medellin opinion, the Court spent several pages discussing the power of Congress
to pass legislation implementing treaties—and Holmes’s 1920 opinion is, without question, the seminal
case on this issue. Yet, strikingly, not once in the entire opinion did the Court see fit to cite Missouri v.
Holland.” (emphasis omitted)).
59. An excellent introduction to the general parameters of the debate is provided by a series of law
review articles by Curtis Bradley and David Golove. See Curtis A. Bradley, The Treaty Power and
American Federalism, 97 MICH. L. REV. 390, 450–61 (1998) [hereinafter Bradley] (advocating a
structural limitation whereby the federal government could not enter into a treaty that governed matters
beyond the scope of the other enumerated powers); David M. Golove, Treaty-Making and the Nation:
The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075,
1102–49 (2000) (asserting that the Framers did intend for the Treaty Power to be broadly construed and
rejecting Bradley’s proposed limitation); see also Curtis A. Bradley, The Treaty Power and American
Federalism Part II, 99 MICH. L. REV. 98 (2000) (rebutting Golove’s arguments).
60. E.g., Duncan B. Hollis, Executive Federalism: Forging New Constraints on the Treaty Power, 79
S. CAL. L. REV. 1327, 1330–31 (2006) (using the label “new federalists” rather than “federalists”).
61. E.g., Bradley, supra note 59, at 451–61 (advocating a structural limitation whereby the federal
government could not enter into a treaty that governed matters beyond the scope of the other
enumerated powers); John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and
the Original Understanding, 99 COLUM. L. REV. 1955, 2092–94 (1999) (arguing in favor of presumption
against self-execution of treaties).
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Nicholas Rosenkranz, who focuses on the relationship between the Treaty
Power and the Necessary and Proper Clause.62 Rosenkranz correctly argues that
Justice Holmes’ opinion in Holland 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.63
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.64
Although there is no indication that the Court will accept such an argument
and overrule Holland, many policymakers are likely to give it credence and
oppose a treaty or treaty-implementing legislation that transcends these limits.
The Supreme Court has recognized that the political branches have an independent duty to obey the Constitution even if the courts have not considered the
issue.65 The belief that the political branches have an independent duty to
refrain from unconstitutional action—even if courts do not recognize that action
as unconstitutional—is known as departmentalism.66 Judge Frank Easterbrook
has elaborated on this point, stating 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.”67 Easterbrook further, and correctly,
argues that the President has a similar duty not to enforce any law he or she
interprets to be unconstitutional, even if the courts have not yet considered the
law’s constitutionality.68 There is rich literature on departmentalism’s proper
62. Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867, 1880–81
(2005) (“The answer [to whether a treaty can increase the legislative power of Congress] turns on the
relationship between two clauses of the Constitution: the Necessary and Proper Clause and the Treaty
Clause.”).
63. See id. at 1880–1918. “Treaties cannot confer new legislative powers on Congress.” Id. at 1927.
64. Rosenkranz bases his argument on the text and structure of the Constitution, see id. at 1905–12
(showing “paradoxes” that result from Holland, which “can be resolved only if Justice Holmes was
wrong . . . [and] legislative power cannot be expanded or contracted by treaty”), and the history of the
Founding, see id. at 1912–18.
65. See, e.g., Hein v. Freedom from Religion Found., 551 U.S. 587, 618 (2007) (Kennedy, J.,
concurring) (“Government officials must make a conscious decision to obey the Constitution whether
or not their acts can be challenged in a court of law and then must conform their actions to these
principled determinations.”); United States v. Nixon, 418 U.S. 683, 703 (1974) (“[E]ach branch of
government must initially interpret the Constitution . . . .”).
66. See Steven G. Calabresi, Thayer’s Clear Mistake, 88 NW. U. L. REV. 269, 275 n.32 (1993) (“The
term ‘departmentalism’ has gained common currency in conservative and libertarian legal circles where
it is used to describe enforcement of the Constitution by all three departments of the federal government, rather than exclusively by the Supreme Court . . . .”). Calabresi emphasizes that the departmentalist approach serves to protect individual rights. Id. at 275 (“[T]he American departmentalist system
guarantees that government will only be able to act to deprive someone of life, liberty or property when
all three branches concur that the contemplated action is constitutional.”). But he also discusses its
value for “limiting government power” and “foster[ing] a constant dialogue among the branches about
constitutional meaning.” Id.
67. Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 911 (1990).
68. This duty is derived from the “Take Care Clause.” Id. at 919. See generally U.S. CONST. art. II,
§ 3, cl. 3 (“[H]e shall take Care that the Laws be faithfully executed.”). Easterbrook notes that the
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role in our constitutional system,69 but here it is important to note only that
many legislators and executive branch officials may believe they have a duty to
exercise their independent judgment in interpreting the Constitution.
For Treaty Power federalists, a departmentalist approach would preclude
entering into or implementing a treaty that violated their understanding of the
Treaty Power’s constitutional limits.70 Professor Duncan Hollis has argued that
policymakers are sometimes reluctant to enter into treaty regimes because of
their independent constitutional interpretation of the Treaty Power.71 In the
1960s, Secretary of State John Foster Dulles expressly stated that treaties could
not intrude upon matters within the exclusive control of the states.72 The
support for the federalist position has likely impacted the United States’ refusal
to enter into a number of treaties centered on issues traditionally reserved to the
states.73 Such treaties include the Convention on the Rights of the Child74 and
the International Covenant on Economic, Social and Cultural Rights.75 Thus,
while the Court has not adopted Rosenkranz’s view, his argument will likely
inhibit congressmen and executive officials who find it persuasive.
B. POLITICAL AND CONSTITUTIONAL POLICY CONSIDERATIONS
In addition to possibly narrow constitutional interpretations of the Treaty
Power, many legislators and executive officials are opposed to the use of
Supreme Court has never directly ruled on this issue and acknowledges that circuit courts have ruled
that the President has no such authority and that the Court has in dicta suggested similar conclusions,
though such conclusions are erroneous. See Easterbrook, supra note 67, at 906; see also Weinberger v.
Salfi, 422 U.S. 749, 765 (1979) (stating in dicta that the Secretary of Health, Education and Welfare has
no authority to interpret the constitutionality of a statute); Lear Siegler, Inc. v. Lehman, 842 F.2d 1102,
1119–26 (9th Cir. 1988) (holding that the President could not refuse to enforce a statute on constitutional grounds).
69. E.g., Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What the
Law Is, 83 GEO. L.J. 217, 294–98 (1994) (arguing that Judge Easterbrook’s approach does not go far
enough and that the executive can disagree with the Court about constitutional rules, so long as it does
not disturb the Court’s judgment in a particular case).
70. See Hollis, supra note 60, at 1372–74, 1387–89 (arguing that willful self-restraint on the part of
the executive branch is the “primary way in which states’ rights garner protection in the treaty
context”).
71. See id. at 1369 (arguing that at least some refusals by the executive to enter into treaties prior to
Holland were based on constitutional interpretations of the scope of the Treaty Power); id. at 1370
(listing examples of executives’ refusal to enter into treaties, though noting that federalism may have
been safeguarded “only as a matter of policy”).
72. See id. at 1370 & n.256 (citing Treaties and Executive Agreements: Hearings Before a Subcommittee of the Committee on the Judiciary United States Senate, 83d Cong. 825 (1953), and Treaties and
Executive Agreements: Hearings on S.J.R.1 Before a Subcommittee of the Committee on the Judiciary
United States Senate, 84th Cong. 183 (1955)).
73. See id. at 1369–70.
74. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; see also Hollis, supra
note 60, at 1373 (“[T]he executive never joined the U.N. Convention on the Rights of the Child . . . .”).
75. International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966, S. Exec. Doc.
D, 95–2, 993 U.N.T.S. 3; see also Hollis, supra note 60, at 1372 (“[T]he executive has essentially
ceased seeking ratification of the International Covenant on Economic, Social, and Cultural Rights.”).
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sweeping treaties and treaty-implementing legislation as a matter of policy.76
The difference between constitutional and policy rationales is important, even
though the distinction is often difficult to identify, especially when assessing
policymakers’ motivations.77 Those who advocate limited use of the Treaty
Power as a matter of policy may nevertheless support the ratification and
implementation of a treaty that is particularly important. Such an option is not
sufficient for those adhering to the federalist version of the Treaty Power.
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.78 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.
Some combination of policymakers’ independent constitutional interpretations and their desire to preserve state autonomy independent of constitutional
limitations has greatly affected the ratification and implementation of certain
treaties, such as the International Covenant on Civil and Political Rights (ICCPR).79 The ICCPR is a broad human rights treaty that requires membernations to ensure a number of individual rights, ranging from nondiscrimination
to remedies for unreasonable seizures.80 Despite the independent value of the
ICCPR for American foreign policy, senators attached numerous reservations,
understandings, and declarations to the treaty’s ratification to preserve federalism interests that would have otherwise been threatened by it.81
76. Advisory Comm. on Int’l Law, U.S. Dep’t of State, Memorandum Summarizing U.S. Views and
Practice in Addressing Federalism Issues in Treaties (Nov. 8, 2002), available at http://www.state.gov/s/
l/38637.htm; see also Hollis, supra note 60, at 1370 (“[J]ust as often, [the executive] has invoked
federalism as a continuing brake on its exercise of that power, even if only as a matter of policy.”).
Hollis was himself a State Department legal advisor who worked on the memorandum declaring this
policy. Hollis, supra note 60, at 1370 n.255.
77. See James Bradley Thayer, Our New Possessions, 12 HARV. L. REV. 464, 468 (1899) (“We must
disentangle views of political theory, political morals, constitutional policy, and doctrines as to that
convenient refuge for loose thinking which is vaguely called the ‘spirit’ of the Constitution, from
doctrines of constitutional law.”).
78. See Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 386–405 (1997).
79. See Senate Committee on Foreign Relations Report on the International Covenant on Civil and
Political Rights, 31 I.L.M. 645, 652 (1992) [hereinafter Senate Committee Report]. See generally
International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 6 I.L.M. 368,
999 U.N.T.S. 171 [hereinafter ICCPR].
80. ICCPR, supra note 79, art. 20 (“Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”); id. at art. 9
(“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.”).
81. See Senate Committee Report, supra note 79; Louis Henkin, U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Bricker, 89 AM. J. INT’L L. 341, 348–49 (1995) (lamenting the
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In practice, opposition to the broad use of the Treaty Power on policy
grounds appears to be a more significant constraint than policymakers’ constitutional interpretations of the Treaty Power.82 Much of the Bush Administration’s
opposition to certain treaties on federalism grounds probably rested on policy,
rather than independent constitutional interpretation.83 Political pressure and the
desire to make sound policy decisions may dissuade even ardent Treaty Power
nationalists from implementing treaties that infringe upon state sovereignty.84
The existence of such “political safeguards” is even used by Treaty Power
nationalists in their arguments for minimal constitutional limitations on the
Treaty Power.85
C. THE CONSTITUTIONAL AND POLICY PROBLEMS OF VCCR IMPLEMENTATION OPTIONS
The general constitutional and policy constraints upon the Treaty Power
preclude the federal government from exercising certain modes of treaty implementation 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.86 Of these, the first two are
limited American participation in the ICCPR because of the numerous reservations and non-selfexecuting declaration attached to ratification).
82. See Hollis, supra note 60, at 1371 (noting that “the executive has opted to join treaties without
any federalism accommodation, notwithstanding earlier suggestions that the treaty’s subject matter lay
beyond the treaty power”).
83. This emphasis on policy is most evident in the Bush State Department’s memorandum on the
issue:
As a matter of law, the Supreme Court has refused to interpret the 10th Amendment as a
limitation on the exercise of the Treaty Power. In practice, therefore, the United States has not
traditionally taken advantage of so-called “federalism clauses” that allow federal states to
modify their obligations under a treaty because of the legal division of competencies between
a federal government and its constituent units.
As a matter of policy, however, the United States has, on occasion, sought to tailor certain
international obligations to maintain the existing balance of federal-state relations with respect
to the treaty’s subject matter. These federalism concerns have emerged with increased
frequency in recent years as the subject-matter of treaties has broadened beyond transnational
issues to areas traditionally regulated by U.S. states.
Advisory Comm. on Int’l Law, supra note 76.
84. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 167–68 (2d ed. 1996) (delineating sources
and weight of state influence in foreign affairs); see also Hollis, supra note 60, at 1339–40 (describing
political process as a way to ensure federalism concerns are safeguarded).
85. See Hollis, supra note 60, at 1339–40 (emphasis added) (stating that Treaty Power nationalists
believe that such political pressures are a sufficient safeguard of state sovereignty, thus diminishing the
need for constitutional limits).
86. One author has recently advocated a somewhat similar proposal: relying on the states to
implement the VCCR through general encouragement, communication, training, materials, and reimbursement for costs associated with notification. Victoria M. Lee, Note, Giving State and Local Law
Enforcement the Benefit of the Doubt: How To Ensure VCCR Compliance Without Judicial Remedies,
17 J.L. & POL’Y 609, 645–46 (2009). However, Lee’s proposals would not encourage the creation of a
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problematic, while the third has great potential to succeed.
First, Congress could enact a statute requiring the state governments to
provide such notification by relying on a potential exception from the anticommandeering doctrine (which prohibits the federal government from requiring the states to implement a federal regulatory program),87 threatening to
preempt state law if states did not provide notification, or creating some federal
cause of action.
One commentator has advocated judicial recognition of an exception to the
anti-commandeering doctrine to implement Avena or any other treaty.88 Such an
approach is impermissible under New York v. United States and United States v.
Printz, which explicitly prohibit the federal government from “compel[ling] the
States to enact or administer a federal regulatory program.”89
Legislation proceeding by conditional preemption would have a greater
chance of surviving judicial review but would still raise legal and especially
political problems. “Conditional preemption” refers to a law or regulation that
threatens to preempt state law in favor of federal law if states do not enact laws
that meet certain parameters.90 Unlike commandeering, conditional preemption
is permissible as long as Congress has the power to directly preempt state law
and enact legislation of its own.91 Professor Carlos Vázquez has argued that
conditional preemption provides a sufficient tool to ensure implementation of
the VCCR.92 However, as discussed immediately below, Congress lacks the
power to enact such legislation,93 rendering conditional preemption unlikely.
Even if the Court rejects such an argument, the political and policy constraints
that have historically prevented implementation of many treaties will make
right that could be enforced in domestic courts. See id. at 651 (“[N]o domestic judicial remedies are
well-suited to address the consular notification provision.”).
87. E.g., Printz v. United States, 521 U.S. 898, 935 (1997) (stating that “[t]he Federal Government
may neither issue directives requiring the States to address particular problems, nor command the
States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory
program” in declaring unconstitutional the conscription of states to implement federal handgun
registration program).
88. See generally Janet R. Carter, Note, Commandeering Under the Treaty Power, 76 N.Y.U. L. REV.
598 (2001) (arguing that the availability of conditional preemption is insufficient to guarantee the
federal government’s ability to implement treaties and that an exception from the anti-commandeering
doctrine for treaties and treaty-implementing legislation is necessary to ensure compliance with
international legal obligations).
89. Printz, 521 U.S. at 933 (quoting New York v. United States, 505 U.S. 144, 188 (1992)).
90. See New York, 505 U.S. at 167–69 (distinguishing permissible conditional preemption from
unconstitutional commandeering and explaining conditional preemption generally).
91. See FERC v. Mississippi, 456 U.S. 742, 764–66 (1982) (holding conditional preemption
constitutional where the Commerce Clause already “permits Congress to pre-empt the states entirely in
the regulation of private utilities”).
92. Carlos Manuel Vázquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1319,
1324–26 (1999) (describing potential conditional preemption laws to implement the VCCR that would
arguably survive the ban on commandeering).
93. See infra notes 95–99 and accompanying text; see also supra notes 62–64 and accompanying
text (advocating constraints on Congress’s power to implement non-self-executing treaties, as argued
by Professor Rosenkranz).
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conditional preemption an unattractive option.94
Finally, Congress can attempt to create a cognizable private right for aliens
whose VCCR rights have been violated through habeas,95 civil action for
deprivation of rights,96 or some other cause of action. A few congressmen
attempted to create a federal cause of action by proposing the Avena Implementation Act, which established a civil cause of action that could require the
reversal of an alien’s conviction or vacatur of his or her sentence.97 In addition
to the severe political problems poised by such legislation,98 however, it may
also be unconstitutional. Although the current Court would likely rely on
Missouri v. Holland in upholding the creation of such a cause of action, many
policymakers exercising their independent constitutional interpretation would
refuse to do the same.99
Second, the federal government could seek a constitutional amendment under
the Amendment procedures set forth in Article V to give it the power to
implement the treaty.100 The political and practical difficulties associated with
this option, however, make it exceedingly unlikely to be used to implement the
VCCR.101
Finally, the federal government could use the Spending Power to fashion
conditional grants to the states, contingent on their satisfaction of VCCR
obligations. Because the Spending Power is an independent constitutional source
of federal power, it does not raise the constitutional problems that the first two
options present. The constitutionality of this option is defended in Part III and
its prudence is defended in Part IV.
III. THE SPENDING POWER AS A CONSTITUTIONAL ALTERNATIVE
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
94. See supra notes 76–85 and accompanying text.
95. See generally 28 U.S.C. § 2254 (2006).
96. 42 U.S.C. § 1983 (2006).
97. Avena Case Implementation Act of 2008, H.R. 6481, 110th Cong. (2008), available at http://
www.govtrack.us/congress/billtext.xpd?bill⫽h110-6481.
98. See supra notes 76–85 and accompanying text.
99. See supra notes 65–75 and accompanying text.
100. See U.S. CONST. art. V (“The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or on the Application of the Legislatures of
two thirds of the several States, shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the
Legislatures of three fourths of the several States . . . .”).
101. See id.; cf. Rosenkranz, supra note 62, at 1920–24 (describing a drastic war-ending treaty as the
type of international legal obligation that might prompt a constitutional amendment).
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Rosenkranz and several other scholars have discussed this method, but it has not
yet been assessed in detail.102 The remainder of this Note proposes and then
describes the following VCCR-implementing conditional grant, the “Avena
Act,”103 which Congress should enact:
(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
102. See Rosenkranz, supra note 62, at 1919 n.238; see also MICHAEL JOHN GARCIA, CRS REPORT FOR
CONGRESS, VIENNA CONVENTION ON CONSULAR RELATIONS: OVERVIEW OF U.S. IMPLEMENTATION AND INTERNATIONAL COURT OF JUSTICE (ICJ) INTERPRETATION OF CONSULAR NOTIFICATION REQUIREMENTS 21 (2004);
Julian G. Ku, Gubernatorial Foreign Policy, 115 YALE L.J. 2380, 2405 (2006) (stating that the federal
government “could even pass legislation imposing conditions on federal spending that would require
state and local officials to comply with treaty obligations.”); Joshua A. Brook, Note, Federalism and
Foreign Affairs: How to Remedy Violations of the Vienna Convention and Obey the Constitution, Too,
37 U. MICH. J.L. REFORM 573, 595 (2004); Jason Costa, Comment, Alone in the World: The United
States’ Failure to Observe the International Human Right to Compensation for Wrongful Conviction, 19
EMORY INT’L L. REV. 1615, 1647–48 (2005) (suggesting that the Spending Power could be used to
implement a right to compensation for wrongful convictions, as possibly required by the ICCPR treaty
regime).
Other commentators reject this option as insufficiently reliable. See Carter, supra note 88, at 611–14;
see also Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 COLUM. L. REV. 403,
487 & n.321 (2003) (stating that the Spending Power is an expensive method of treaty-implementation
and that the “uncertainty as to whether states will accept conditioned moneys and the associated
obligations, or agree to preemption, may impair U.S. bargaining with other countries.”).
Another commentator has advocated a similar option for implementing the VCCR, in which the
federal government would reimburse states for costs of complying with the VCCR, in addition to
providing guidance, training, educational materials, and encouragement to comply. See Lee, supra note
86, at 645, 649. Lee’s strategy differs from the Avena Act, in that she does not support the states’
creation of a right enforceable in domestic courts, see id. at 651, or the conditioning of larger spending
programs on compliance with the VCCR, see id. at 649 (“If Congress enacted a funding statute, the
federal government—not individual states—would bear the cost of enforcing the provision, which
should alleviate concerns that states will not comply because of the financial burden of enforcement.”).
103. This name is derived from the Avena Case Implementation Act of 2008. The “Avena Act,” as
proposed in this Note, differs from the “Avena Case Implementation Act” unsuccessfully pursued by
Congress in 2008 because the Avena Act induces the states, whereas the Avena Case Implementation
Act would have required state compliance.
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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,104 waive sovereign immunity over a particular
subject,105 or fulfill some other obligation.106 Such conditions are often enacted
after the state or locality begins receiving the funds to which the conditions are
attached.107 While many grants could constitutionally include such a condition,
the Justice Assistance Grant (JAG) would be an attractive possibility.108 In
2008, the Justice Department provided $165 million in assistance to local and
state law enforcement agencies through this program.109 Some conditions have
already been imposed on the receipt of these funds.110 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.
Unlike other forms of legislation, conditional grants enable the federal govern-
104. See, e.g., United States v. Am. Library Ass’n, 539 U.S. 194, 198–201, 214 (2003) (upholding
legislation that induced state- and locality-run libraries to install internet filters).
105. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 638–41, 653–54 (1999)
(upholding conditional grant that required state to waive sovereign immunity over certain claims).
106. See, e.g., New York v. United States, 505 U.S. 104, 173 (1992) (upholding use of Spending
Power to induce states to set series of milestones for nuclear waste management).
107. E.g., Children’s Internet Protection Act, Pub. L. No. 106-554, § 1721(b), 114 Stat. 2763,
2763A-346–2763A-349 (2000) (codified at 47 U.S.C. § 254(h)(6) (2006)); see also Anuj C. Desai,
Filters and Federalism: Public Library Internet Access, Local Control, and the Federal Spending
Power, 7 U. PA. J. CONST. L. 1, 26 (2004) (stating that “the whole point of the law was to add a
condition to money that localities had already been receiving without that condition”).
108. See 42 U.S.C. § 37511 (2006) (authorizing grants).
109. Press Release, Dep’t of Justice Office of Justice Programs, Department of Justice Announces
Nearly $240 Million in Grants to Enhance Crime Prevention Efforts Across the Country (Sep. 30,
2008), available at http://www.ojp.usdoj.gov/newsroom/pressreleases/2008/bjaccdo08114.htm. Texas,
for example, received nearly $11 million. OFFICE OF JUSTICE PROGRAMS, U.S. DEP’T OF JUSTICE, JUSTICE
ASSISTANCE GRANT (JAG) PROGRAM: FY 2008 ALLOCATIONS AND DISPARATE INFORMATION, TEXAS (2008),
http://ojp.usdoj.gov/BJA/grant/08jagallocations.html.
110. See Brittany Enniss, Note, Quickly Assuaging Public Fear: How the Well-Intended Adam Walsh
Act Led to Unintended Consequences, 2008 UTAH L. REV. 697, 705–06 (describing act that requires
states to create sex offender registries or else receive a 10% reduction in JAG assistance). See generally
42 U.S.C. §§ 16911–12, 16925 (2006) (defining registry requirements and conditioning JAG funding on
compliance). This program, however, has not yet induced compliance from many states for several
reasons, including states’ opposition to parts of the statute that require long-term registration for
juvenile sex offenders, the high cost necessary to comply with the condition (which potentially exceeds
the value of the withheld funds), and that conditions have just recently taken full effect. Enniss, supra,
at 705–06, 714. Every state, however, accepted grants with conditions that implemented a similar act.
See infra note 166 and accompanying text.
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ment 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.111 In South Dakota
v. Dole, the Court established a five-part test to determine the constitutionality
of a grant to the states to build interstate highways conditioned on states
prohibiting sale of alcohol to persons under twenty-one.112 First, the spending
program must be for the “general welfare.”113 Second, the condition must not
induce the states to do something that violates an express constitutional prohibition.114 Third, the condition must be related to the spending program.115 Fourth,
the conditional grant cannot rise to the level of coercion.116 Finally, the condition must be clearly stated.117 The Avena Act satisfies all five of these criteria.
A. FUNDS MUST BE SPENT FOR THE GENERAL WELFARE
The requirement that funds be spent “for the general welfare” has not limited
the scope of the Spending Power,118 and the Court cannot meaningfully modify
this requirement without unconstitutionally constraining the federal government. In Dole itself, the Court indicated that it would largely defer to Congress’s judgment in determining whether a particular grant was spent for the
general welfare.119 Some commentators have advocated more robust enforcement of this prong,120 but courts have not indicated any willingness to lessen
111. South Dakota v. Dole, 483 U.S. 203, 207 (1987).
112. Id. at 207–11.
113. Id. at 207.
114. Id. at 208.
115. Id. at 207.
116. See id. at 211 (“Our decisions have recognized that in some circumstances the financial
inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into
compulsion.’” (citing Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937))).
117. Id. at 207.
118. See, e.g., Cutter v. Wilkinson, 423 F.3d 579, 585 (6th Cir. 2005) (“In Dole, the Supreme Court
instructed the lower courts to ‘defer substantially to the judgment of Congress’ in deciding what
constitutes ‘the general welfare,’ going so far as to suggest that the ‘general welfare’ restriction might
not be ‘judicially enforceable . . . at all.’” (citations omitted)); see also Lynn A. Baker & Mitchell N.
Berman, Getting Off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a
Too-Clever Congress Could Provoke It to Do So, 78 IND. L.J. 459, 524 (2003) (“Under current doctrine,
the requirement that federal funds be spent only for the general welfare is essentially empty.”); Ernest
A. Young, The Rehnquist Court’s Two Federalisms, 83 TEX. L. REV. 1, 143 (2004) (“The Court has
frankly acknowledged that ‘general welfare’ cannot be defined without reference to political and moral
values that belong in the legislature’s province, and so it defers almost completely to Congress on that
point.”).
119. Dole, 483 U.S. at 207. The Court went so far as to say that such a requirement might not be
judicially enforceable at all. Id. at 207 n.2.
120. For example, Professor Laurence Claus has argued that the federal government cannot discriminate against states that refuse to accept conditions attached to federal funding, relying on an analogy
between the Taxing Power’s uniformity requirement and the Spending Clause. See Laurence Claus,
“Uniform Throughout the United States”: Limits on Taxing as Limits on Spending, 18 CONST.
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the deference that they give to the political branches on this issue.121
Dole’s first prong does not raise any difficulty for the Avena Act. Both the
JAGs and the VCCR-implementing conditions help Congress to provide for the
general welfare. The Court must defer to Congress’s weighing of the potential
burdens imposed on citizens in both states that accepted and refused the grant
against the potential benefit they receive from both the funding itself and the
states’ uniform satisfaction of the condition.122 Benefits of states’ acceptance of
the condition include satisfaction of international obligations, which may result
in concrete benefits for individual citizens.123 Because of the easy recognition of
such benefits, the courts would almost certainly defer to Congress’s judgment.
B. THE CONDITION CANNOT INDUCE STATE VIOLATION OF THE CONSTITUTION
A conditional grant cannot induce states to act in a manner that violates the
Constitution. While this is a seemingly straightforward requirement, conditional
grants have occasionally resulted in challenges based on this prong. For example, in United States v. American Library Association, the Court considered a
challenge to a federal program that encouraged states to use filters on computers
in public libraries to screen out content that would be harmful to children.124
The Court narrowly upheld the conditional grant, holding that the federal government
had a compelling state interest in protecting children from indecent material.125
The Avena Act does not raise problems under this prong because there is no
constitutional bar to state officials reading VCCR rights to arrested aliens. Some
treaties, however, do include terms that potentially violate express constitutional
prohibitions, such as portions of the ICCPR that infringe upon free speech.126
The federal government would not have the power to implement some of the
ICCPR’s terms through the Spending Power, for example, if the ICCPR’s terms
were broadly construed to ban certain types of speech that are constitutionally
protected. Congressmen recognized such problems during the ICCPR’s ratification and attached reservations, understandings, and declarations in ratifying
it.127 No comparable difficulties exist for the VCCR.
COMMENT. 517, 545 (2001) (“What destroys constitutional uniformity and generality is conditioning of
taxing or spending upon particular state government behavior, whether past, present, or future.”).
121. See, e.g., Cutter, 423 F.3d at 585 (“Heeding the Supreme Court’s instruction to ‘defer
substantially’ to Congress’s legislative judgment, we agree with our sister circuits that RLUIPA furthers
the general welfare.”); Mayweathers v. Newland, 314 F.3d 1062, 1066 (9th Cir. 2002) (“[T]he Court
seems doubtful that failure to advance the general welfare could ever provide adequate grounds for
invalidating a federal statute.”).
122. In this instance, there would be no tax increase at the federal level because the grants already exist.
123. This could include greater safety when traveling abroad and commercial opportunities with
foreign companies who may currently be wary of the American record in protecting aliens.
124. 539 U.S. 194, 198–201 (2003) (plurality opinion).
125. Id. at 214.
126. See ICCPR, supra note 79, art. 20 (prohibiting war propaganda and advocacy of hatred).
127. Senate Committee Report, supra note 79, at 651 (“[T]he prohibitions of Article 20 [which
forbids speech that promotes discrimination, violence, or hatred] would contravene the First Amendment to the Constitution . . . .”).
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C. GERMANENESS OF THE CONDITION TO THE GRANT
Under the Court’s jurisprudence, a condition must be sufficiently related to
the grant to which it is attached. Chief Justice Rehnquist’s opinion in Dole did
not explicitly indicate whether there actually was a nexus requirement,128 but
the lower courts have generally addressed germaneness like the other four
prongs.129 However, the germaneness requirement does not greatly constrain the
federal government because it has numerous grants at its disposal to which it
can attach conditions.130 The requirement is still important, however, because it
limits the financial consequences of a state’s refusal to accept a particular
conditional grant.131
The Avena Act would pass the germaneness test 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. Education funds conditioned on
waiver of sovereign immunity from discrimination lawsuits132 and library funds
conditioned on installation of internet filters133 are two such examples. In both
instances, 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.
128. The Chief Justice stated: “[O]ur cases have suggested (without significant elaboration) that
conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in
particular national projects or programs.’” South Dakota v. Dole, 483 U.S. 203, 207 (1987) (citing
Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). Textually, this sentence
may seem somewhat ambiguous as to whether the condition must be related to that specific grant (as
opposed to some other particular federal interest). But, the Court’s application of this requirement does
indicate that the nexus must be between the particular condition and the grant to which it is attached.
See id. at 209.
129. See, e.g., Cutter v. Wilkinson, 423 F.3d 579, 586–87 (6th Cir. 2005); see also Fischer v. United
States, 529 U.S. 667, 689 n.3 (2000) (“We have held that the Spending Power requires, at least, that the
exercise of federal power be related ‘to the federal interest in particular national projects or programs.’”
(citing Dole, 483 U.S. at 207)).
130. Cf. Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911,
1918 n.24 (1995) (noting that federal grants to state and local governments totaled nearly $200 billion
in 1993) (citations omitted).
131. See New York v. United States, 505 U.S. 144, 167 (1992) (“[C]onditions must (among other
requirements) bear some relationship to the purpose of the federal spending . . . otherwise, of course,
the spending power could render academic the Constitution’s other grants and limits of federal
authority.” (citations omitted)). While consequences of not adhering to conditions are sometimes quite
severe, the germaneness prong coupled with Dole’s other requirements ensure a condition’s effects are
constrained. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 304 (2006) (striking
down conditional grant because of lack of clarity and noting that condition threatened to deprive states
of all federal education funding).
132. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 639, 653–54 (1999) (describing
federal education funds conditioned on prohibition of discrimination and upholding such condition as
applying to school’s failure to intervene against third-party conduct).
133. See United States v. Am. Library Ass’n, 539 U.S. 194, 198–201, 214 (2003) (describing and
upholding federal library grant conditioned on libraries’ installation of internet filtering device to
protect children from pornography).
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D. ABSENCE OF COERCION IN THE CONDITIONAL GRANT
Although Dole established the absence of coercion as one of the five requirements that conditional spending must meet, most courts have been reluctant to
give any meaningful effect to this prong of the test.134 Indeed, the Supreme
Court has not always treated it as a separate requirement.135 Instead, courts
usually apply Dole’s other prongs more robustly when a conditional grant
arguably skirts toward coercion. The dissent in Davis v. Monroe County, for
example, considered the magnitude of a condition attached to a major federal
education grant in determining whether Congress spoke with sufficient clarity
regarding the parameters of the condition.136 More explicitly, Judge Luttig
suggested that a condition that threatened to deprive a state of all federal
education funds might be coercive because of the grant’s large size.137
In the vast majority of cases, a federal grant to the states cannot have a
coercive effect. So long as the state government can make up the difference by
raising additional revenue, states retain the option of refusing the grant.138 Some
scholars have raised concerns about the potentially great influence of certain
conditional grants,139 but such concerns fail to recognize the distinction be-
134. West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 290 (4th Cir. 2002) (“[M]ost
courts faced with the question have effectively abandoned any real effort to apply the coercion theory.”).
135. See, e.g., New York, 505 U.S. at 171–72 (upholding conditional grant because it met the other
four criteria of Dole without addressing the coercion prong).
136. 526 U.S. 629, 656–57 (1999) (Kennedy, J., dissenting) (“Without doubt, the scope of potential
damages liability is one of the most significant factors a school would consider in deciding whether to
receive federal funds. Accordingly, the Court must not imply a private cause of action for damages
unless it can demonstrate that the congressional purpose to create the implied cause of action is so
manifest that the State, when accepting federal funds, had clear notice of the terms and conditions of its
monetary liability.”).
137. Va. Dep’t of Educ. v. Riley, 106 F.3d 559, 569–72 (4th Cir. 1997) (en banc) (Judge Luttig’s
dissenting opinion from court’s initial consideration, which was subsequently adopted by the Fourth
Circuit here sitting en banc). The condition was ultimately struck down on ambiguity grounds. Id. at
572 (“In my view, certainly the first [clear statement requirement], and perhaps the second [prohibition
on coercion], of these essential limitations on Federal power has been exceeded in the IDEA provision . . . .”). Note that in Riley, only six of the twelve judges of the en banc panel signed onto this
opinion. Id. at 560–61. The Fourth Circuit again indicated its willingness to enforce the coercion prong
in West Virginia v. U.S. Department of Health and Human Services. 289 F.3d at 291 (“Nonetheless, we
believe that Riley strongly indicates that the coercion theory remains viable in this circuit, and that
federal statutes that threaten the loss of an entire block of federal funds upon a relatively minor failing
by a state are constitutionally suspect.”).
138. See Brian Galle, Federal Grants, State Decisions, 88 B.U. L. REV. 875, 881 (2008) (“[C]ritics
of unconstrained conditional spending seem to greatly underestimate the capacity of state and local
governments to raise their own revenues.”). States also retain the option of letting certain services go
unprovided, if they are not sufficiently important to their citizens. Id. at 920–21.
139. Professors Baker and Berman, for example, have criticized the limited notion of “coercion” that
the courts have adopted, and instead, advocate disallowing any conditional grant that would not allow
states to make a “rational choice” as to whether or not to accept the condition. Baker & Berman, supra
note 118, at 520–21; see also West Virginia, 289 F.3d at 291 (“[F]ederal statutes that threaten the loss of
an entire block of federal funds upon a relatively minor failing by a state are constitutionally suspect.”).
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tween coercion and inducement.140 Such concerns are generally better raised
through a stringent reading of the clarity prong, which ensures that states are
able to make a fully informed decision as to whether to accept federal funds,141
and the continued use of the germaneness prong, which limits the effects of not
satisfying a condition to deprivation of a limited category of federal funds.142
Recent opinions indicate that most courts are likely to continue treating the
absence of the coercion prong as an independent factor of the Dole test but
probably will invoke it only in extreme circumstances.143
The Avena Act does not run afoul of the coercion prong as the Court has (and
should continue) to interpret it. The Justice Assistance Grants involve a large
sum of money, but a state could raise taxes to make up for the difference if it so
desires. Additionally, the Avena Act’s attachment to a previously existing grant
does not create any further requirements.144
E. CLARITY OF THE CONDITION
The clarity prong of Dole has been the most rigidly enforced, and it has been
used as a key mechanism to safeguard states’ autonomy. Several years prior to
Dole, the Court struck down a conditional grant because it did not clearly state
the parameters of the condition.145 In a number of more recent cases, the
Supreme Court and the courts of appeals have struck down conditional grants
for violating the clarity prong of Dole. In Arlington Central School District
Board of Education v. Murphy, for example, the Court struck down a conditional grant because it did not clearly indicate that states were obligated to
waive sovereign immunity over a certain class of claims in exchange for the
grant.146 And in Virginia Department of Education v. Riley, the Fourth Circuit
struck down a conditional grant because its condition was unclear,147 while
140. See Celestine Richards McConville, Federal Funding Conditions: Bursting Through the Dole
Loopholes, 4 CHAP. L. REV. 163, 177–83 (2001) (describing how no amount of money can transform
inducement into coercion because the state still retains the option to make decisions on behalf of its
people). Alternatively, there may be no difference whatsoever between coercion and inducement, which
similarly makes the coercion prong meaningless. See Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism’s Trojan Horse, 1988 SUP. CT. REV. 85, 118–20.
141. See infra notes 145–53 and accompanying text; see generally Arlington Cent. Sch. Dist. Bd. of Educ.
v. Murphy, 548 U.S. 291, 304 (2006) (striking down potentially coercive grant as insufficiently clear).
142. See supra notes 128–33 and accompanying text.
143. See West Virginia, 289 F.3d at 290–91 (describing courts’ recent treatment of the absence of
coercion prong and failure to ever find coercion, while indicating that the Fourth Circuit would
continue to enforce the absence of coercion requirement). The Avena Act would nevertheless likely pass
muster under the Fourth Circuit’s more rigid test because of the limited size of the grant and the clear
relationship between the grant and the condition.
144. See Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State
Autonomy Makes Sense and “Dual Sovereignty” Doesn’t, 96 MICH. L. REV. 813, 865 n.184 (1998)
(describing the increased prevalence of new “cross-cutting” conditions on “old grant money”).
145. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 24–25 (1981).
146. 548 U.S. 291, 304 (2006).
147. 106 F.3d 559, 570 (4th Cir. 1997) (en banc) (majority’s per curiam opinion embraces Judge
Luttig’s initial dissenting opinion).
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discussing the possibility that the conditional grant was also coercive.148 Thus,
the clarity prong has been used to inject some of the concerns regarding
coercion into the Dole test.149
As with the other prongs, 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.
However, it is easy to conceive of a conditional grant that would run afoul of
this requirement. For example, suppose that the Avena Act proposal also
contained a condition that required state compliance with any ICJ interpretation
of the VCCR. Such a condition would almost certainly violate the clarity prong
because a state would not know in advance how an ICJ ruling could affect its
obligations.150 Because a number of treaty regimes require compliance with ICJ
rulings, the federal government may need to anticipate future decisions to avoid
a breach of its international legal obligations.151 The federal government could
satisfy both the Dole clarity requirement and international law by anticipating
the ICJ’s future rulings on the subject matter and ensuring that conditions would
preemptively comply with such rulings.152 The proposed Avena Act does include some provisions, notably the mandatory rehearing for an alien held for
forty-eight hours prior to receiving notification of VCCR rights, which were not
required by Avena but could emerge from a future ICJ decision.153
148. Id. at 561.
149. It is also possible to think of the absence of coercion and clarity prongs as working together.
See Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 279 (5th Cir. 2005) (“When the condition requires a
state to waive its Eleventh Amendment immunity, Dole’s requirement of an unambiguous statement of
the condition and its proscription on coercive inducements serve a dual role because they ensure
compliance with [the] requirement that waiver of Eleventh Amendment immunity must be (a) knowing
and (b) voluntary.”).
150. The ICJ could hypothetically require transferring an alien who was not read his VCCR rights to
his home country, an onerous requirement. Shapiro considers the constitutionality of a law that would
make all ICJ judgments binding, noting that such a law would likely be impermissible because of the
infringement on the role of the federal judiciary, among other problems. See Shapiro, supra note 5, at
97–98. Thus, according to Shapiro’s reasoning, this hypothetical condition might also violate Dole’s
requirement that a condition not induce a state to violate the Constitution.
151. See Medellı́n v. Texas, 552 U.S. 491, 552–53 (2008) (Breyer, J., dissenting) (describing some
of the “70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the
Optional Protocol”); see also infra notes 185–92 and accompanying text (describing Canadian practice,
which includes predicting future decisions of international tribunals and ensuring that implementing
legislation would be in accordance with such decisions).
152. Of course, there are some obligations that the federal government would not be willing to
implement through inducement or, if it were constitutionally permissible, direct legislation. However,
anticipation of future ICJ rulings would generally be efficacious. Such action would be somewhat
similar to the Canadian system, in which a federal committee works with the provinces to make vague
treaty obligations more concrete before such obligations are interpreted by international bodies. See
infra notes 185–92 and accompanying text.
153. In Avena, the ICJ considered establishing a bright-line rule that would require a rehearing if an
alien was not notified of his or her VCCR rights within a certain time period, but did not do so. See
Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 49–50 (Mar. 31)
(indicating that the treaty itself has no precise time requirement and that forty-eight hours was the
shortest time period considered for such a requirement).
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IV. THE POLICY RATIONALES FOR USING THE SPENDING POWER TO INDUCE STATE
IMPLEMENTATION OF THE VCCR
The clear constitutionality of the Avena Act makes it more attractive to Treaty
Power federalists than the proposed Avena Implementation Act. However,
Treaty Power nationalists and federalists alike should recognize the Avena Act’s
superior ability to safeguard federalism as a matter of policy and its likely
effectiveness in ensuring the United States’ compliance with the VCCR.
A. SAFEGUARDING CONSTITUTIONAL POLICY AND FEDERALISM VALUES
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.154
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.155 Second, the federal government must
pay for state participation, requiring policymakers to decide the relative importance of state compliance. To appreciate these distinctions, it is important to
focus on the real-world consequences of refusal to comply with legislation that
commandeers or conditionally preempts, rather than the Avena Act’s conditioning of federal funding.
First, states always have the capability to raise taxes to make up for the
shortfalls in federal funding resulting from nonparticipation.156 This option may
put states in a difficult position, but it does not foreclose the option of additional
taxation.157 Even in cases where the budgetary shortfall from refusing a grant
and the resulting tax increase would be substantial, it is categorically different
than the burdens imposed by commandeering and conditional preemption.158
Consider the possibility of a federal program that sought to implement the
VCCR by foreclosing the possibility of the death penalty or requiring dismissal
of charges for aliens who were not initially read their consular notification
rights. If the federal government used conditional grants as a way to implement
154. See Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND.
L. REV. 1629, 1656–57 (2006) (arguing that the Court has imperiled federalism by paying too little
attention to conditional spending, while focusing only on commandeering).
155. See, e.g., McConville, supra note 140, at 177–78.
156. See Nevada v. Skinner, 884 F.2d 445, 448 n.5 (9th Cir. 1989); McConville, supra note 140, at 177–83.
157. Hills points to interesting evidence that suggests that taxpayers view state taxes more favorably
than federal taxes. Hills, supra note 144, at 864–65 (citing ADVISORY COMMISSION ON INTERGOVERNMENTAL RELATIONS, SURVEY NO. S-15, CHANGING PUBLIC ATTITUDES ON GOVERNMENTS AND TAXES (1986)).
158. Commandeering is clearly and critically distinct from conditional grants and conditional
preemption. See New York v. United States, 505 U.S. 144, 167–69 (1992) (explaining that the Spending
Power and conditional preemption are different in kind than commandeering). The magnitude of the
difference between conditional preemption and commandeering is less clear, but at the very least they
present Congress with very different constraints. See Hills, supra note 144, at 868 (“With conditional
grants, Congress is constrained by its limited fiscal capacity. With conditional preemption, Congress is
constrained by its limited regulatory capacity.”).
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such a measure, state taxpayers might be willing to forego the funding to
prevent such interference with their criminal justice system. States would not
have this option under conditional preemption or commandeering legislation.
Second, the federal government is more constrained when it seeks to induce
state compliance with funds than it is with direct legislation against the states.
With the Spending Power, Congress must determine both that the condition is
worthwhile and that the grant is a sound use of federal funding.159 When
supporting legislation that commandeers or preempts, a bill’s sponsors merely
need to convince a majority of legislators that the law has a net positive effect.
For a conditional grant, however, a majority of legislators must agree both that
the condition is desirable and that satisfaction of the conditions (plus the direct
benefit offered by the funds) is worth the amount of the grant. Congress must
also consider the possibility that a state will be opposed to the condition,
thereby requiring Congress to appropriate a sufficient amount of money to
induce compliance.160 In many instances, the federal government will need to
bargain with the states to ensure that they will accept the conditional grant.161
The government also relies upon outside advice from groups representing state
and local governments to ensure that funds will be accepted.162
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.
B. SATISFACTION OF INTERNATIONAL LEGAL OBLIGATIONS
Critics have already dismissed the Spending Power as an insufficiently
reliable method to implement international legal obligations.163 However, these
arguments do not appreciate the historical effectiveness of the Spending Power
in inducing state participation in federal regulatory programs, states’ general
willingness to voluntarily comply with international legal obligations, and the
federal government’s occasional withdrawal from treaty regimes. Furthermore,
159. Robert A. Rotunda, The New States’ Rights, the New Federalism, the New Commerce Clause,
and the Proposed New Abdication, 25 OKLA. CITY U. L. REV. 869, 879 (2000) (“One drawback with the
use of the Spending Power—for those who seek more federal control—is that Congress must spend
sufficient money to make the temptation of federal funds worthwhile.”).
160. See Hills, supra note 144, at 860–61 (describing the bargaining process between the states and
federal government).
161. Id.
162. Id. at 862.
163. See Carter, supra note 88, at 611–14.
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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.164
1. The General Efficacy of the Spending Power
The Spending Power has had a strong record in inducing state compliance
with federal regulatory regimes. For example, states have not resisted the
federal government’s significant incursions into education policy via conditional
grants.165 Additionally, in the law enforcement context, the federal government
has used the Spending Power to induce states to enact laws requiring registration of sex offenders.166 There is little reason to think that this track record
would somehow differ when the conditions correlate with obligations established by treaty. Some commentators have argued that the federal government
will be unable to effectively bargain with the states because the international
obligation already exists, allowing the state to pressure the federal government
into unreasonably raising the amount of the grant.167 However, states frequently
confront other important federal objectives. At most, an international obligation
would modestly increase the minimum inducement that states will accept in
exchange for fulfilling the condition. Indeed, the availability of such bargaining
between the federal government and the states is a strong indicator that the
Spending Power will sufficiently serve federalism interests.
2. States’ Voluntary Role in Treaty Implementation
The Spending Power serves to bolster the helpful role that states have
historically played in treaty implementation. Although commentators have focused on states’ refusal to give effect to certain international legal obligations,
these incidents have been the exception rather than the rule of states’ relationships with treaties. Both with respect to the VCCR and other international legal
obligations, states have often been more assertive than the federal government
in ensuring that the United States does not breach its treaty or customary
164. See supra notes 65–85 and accompanying text.
165. See Derek C. Araujo, A Queer Alliance: Gay Marriage and the New Federalism, 4 RUTGERS
J. L. & PUB. POL’Y 200, nn.115–18 and accompanying text (2006) (stating that every state except
California accepted federal funds conditioned on abstinence-only sex education that also stressed that
sex is not acceptable until heterosexual marriage); Note, No Child Left Behind and the Political
Safeguards of Federalism, 119 HARV. L. REV. 885, 886 (2006) (stating that “not one state had made
good on its threat” to refuse No Child Left Behind Act funds).
166. 42 U.S.C. § 14071(g)(2)(A)–(B) (2006) (stating that ten percent of JAG grants would be
withheld from states that did not comply with the condition); see also Wayne A. Logan, Horizontal
Federalism in an Age of Criminal Justice Interconnectedness, 154 U. PA. L. REV. 257, 279–81 (2005)
(describing federal government’s successful use of the Spending Power to induce all states to implement programs that require registration of all sex offenders).
167. See Swaine, supra note 102, at 484 (“Conditional preemption and conditional spending lose
their allure if the regulatory baseline has been unalterably set by treaty.”).
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international legal obligations.168
In regard to the VCCR, a number of states, including some former VCCR
offenders, have taken broad steps to satisfy their obligations. These include
actions by the legislative, executive, and judicial branches of state government.
States have also varied in the remedy that they have provided to the alien.
The most famous case of state implementation of VCCR obligations occurred
in Oklahoma, where the state’s executive and judicial branches both worked to
comply with the Avena judgment. Torres, the defendant in the case, did not raise
his VCCR claim until collateral review, like Medellı́n.169 The Court of Criminal
Appeals of Oklahoma required that Torres receive an additional hearing to
determine if he had been prejudiced, even though such a hearing was not
required because of state procedural default rules.170 Additionally, Oklahoma’s
governor intervened in the matter, commuting Torres’s death sentence to life
imprisonment without the possibility of parole.171
California, meanwhile, has implemented the VCCR through legislation.172
The statute restates the VCCR obligation of the state to notify arrested aliens of
their right to notify their consulate.173 In California, the state recognized that,
whether or not the VCCR itself was self-executing, it might not create an
individual cause of action, potentially even if Congress attempted to give it such
an effect.174 The California law also directs that police training manuals should
reference police officers’ obligation to read aliens these rights.175
Even Texas, likely perceived as the chief international law violator from
Medellı́n, has taken steps to ensure that aliens are notified of their VCCR rights
168. See Julian G. Ku, The State of New York Does Exist: How the States Control Compliance with
International Law, 82 N.C. L. REV. 457, 498 (2003). Ku states:
Not only have state courts developed and applied principles of customary international law
largely free of federal court supervision, but state executives have independently determined
the scope of their duties under customary international law. State legislatures have acted to
implement treaty obligations by adopting legislation such as guaranteeing notice in probate
proceedings or exempting foreign state property from certain local taxes. In many of these
areas of law, the federal government has played a largely passive role by requesting, rather
than commanding, state compliance with international obligations.
Id.
169. Torres v. State, 120 P.3d 1184, 1191 (Okla. Crim. App. 2005) (Lumpkin, V.P.J., concurring in
part and dissenting in part).
170. Id. at 1185–86 (majority opinion) (describing remand to determine if prejudice resulted at guilt
or sentencing phase of trial). The Court of Criminal Appeals of Oklahoma affirmed the trial court’s
finding that prejudice occurred during the sentencing phase but denied relief on the ground that the
issue had been rendered moot by the governor’s grant of clemency. Id. at 1189–90.
171. Press Release, Office of Governor Brad Henry, Governor Henry Grants Clemency to Death
Row Inmate Torres (May 13, 2004), available at http://www.governor.state.ok.us/display_article.
php?article_id⫽301&article_type⫽1 (granting clemency and commuting execution to life imprisonment).
172. For a further discussion of this statute and an effort by Florida to implement the VCCR on
narrow terms, see Ku, supra note 168, at 508–10.
173. CAL. PENAL CODE § 834c(a)(1) (West 2008).
174. See Ku, supra note 168, at 508–09.
175. § 834c(a)(1).
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as early as possible.176 Texas has declared that it will join the defendant in
seeking collateral review to determine whether any prejudice occurred from
failure to provide prompt notification.177 Bearing in mind that courts had
determined the merits of Medellı́n’s habeas petitions at several points,178 it
seems that Texas will likely make good on this promised procedure. These
voluntary steps indicate that states would be ready and willing to assist in
implementing the VCCR through acceptance of the Avena Act’s conditional
grants.
In addition to the VCCR, states have been instrumental in ensuring American
compliance with a number of other international legal obligations. States have
implemented international legal norms through the voluntary adoption of objects and purposes espoused in both treaties and customary international law.179
For example, states voluntarily adopted customary international law principles
regarding consular powers in estate proceedings following a foreign national’s
death in order to ensure proper distribution of property.180 Likewise, state
governments voluntarily protected foreign nations’ sovereign immunity in state
court proceedings.181 States have also implemented non-self-executing treaties
that Congress has ratified but not implemented. Historically, state legislatures
took it upon themselves to give effect to non-self-executing bilateral treaties
regarding consular notification of probate proceedings involving the estates of
nationals of that country.182 Consuls claimed this right of notification both as a
matter of customary international law and by referencing bilateral treaties that
the U.S. had ratified but taken no steps to implement.183 In response to lobbying
by foreign officials, the states took it upon themselves to fulfill these treaty
obligations, “in sharp contrast to the federal government’s passivity.”184
176. See Brief in Opposition, supra note 16, at 17–18.
177. See id. (stating that for future defendants who have not received review on the merits of their
claims of prejudice arising from VCCR violations, “the State of Texas will not only refrain from
objecting, but will join the defense in asking the reviewing [federal habeas] court to address the claim
of prejudice on the merits, as the courts have done for Medellı̀n [sic]”).
178. “Medellı́n received such review and reconsideration on multiple occasions.” Id. at 13–16
(citing several unpublished orders from the state habeas court, the Court of Criminal Appeals, and
federal district court, in which the courts uniformly concluded that Medellı́n was not prejudiced by any
violation of the VCCR).
179. See Ku, supra note 168, at 476–77; see also Julian G. Ku, Customary International Law in
State Courts, 42 VA. J. INT’L L. 265, 335–37 (2001) (explaining that there is no practical need to
interfere with state interpretations of customary international law); Catharine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U.
PA. L. REV. 245, 280–83 (2001) (discussing efforts by states and localities to advocate implementation
of the Second Protocol to the ICCPR, which is aimed at the elimination of capital punishment).
180. Ku, supra note 168, at 478–85.
181. Id. at 485–91.
182. See id. at 481–85.
183. Id.
184. Id. at 484. Localities have also taken it upon themselves to implement international obligations
that the United States has not ratified, further indicating the competence of state and local governments
to meaningfully implement international obligations. See, e.g., Powell, supra note 179, at 276–80; see
also S.F. CEDAW ORDINANCE, LOCAL IMPLEMENTATION OF THE UNITED NATIONS CONVENTION ON THE
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Other nations with federal systems of government have also had success in
implementing treaties at the state level, including Canada and Australia. In
Canada, the national government cannot implement any treaty that addresses
issues beyond the scope of the national government’s enumerated powers.185
Areas of exclusive provincial authority are extensive, including “property and
civil rights.”186 Furthermore, all Canadian treaties are non-self-executing and
require implementing legislation to have legal effect.187 Nevertheless, Canada
has been able to enter into and implement “all of the principal United Nations
human rights conventions and covenants.”188 Canada utilizes an extensive
consultation process in which a “Continuing Committee” serves as a forum for
the national and provincial governments to coordinate their efforts to ensure
effective implementation of human rights treaties.189 These proceedings have
also benefited the international treaty regime by providing complete reports of
treaty-implementation efforts, which can serve as a model for other states.190
There are few incidents where Canada has been unable to satisfy its international legal obligations using this system.191 Furthermore, Canada lacks a robust
Spending Power.192 The availability of conditional grants indicates that the
United States is even better positioned than Canada to rely primarily on the
ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, ADMIN. CODE, ch. 12K (2001), available
at http://www.sfgov.org/site/cosw_page.asp?id⫽10849.
185. Attorney-General (Canada) v. Attorney-General (Ontario) [1937] A.C. 326, para. 20 (P.C.
(appeal taken from Can.)) (Lord Atkin, for the Court)). The Canadian Supreme Court has since
criticized this decision (known as Labour Conventions), but commentators agree that the Court will
probably not overrule it in the near future. See, e.g., JOHN TRONE, FEDERAL CONSTITUTIONS AND
INTERNATIONAL RELATIONS 82 (2004) (“Despite the Supreme Court’s many criticisms of the Labour
Conventions decision, given the turbulence of Canadian federalism the decision is most unlikely to be
overruled.”).
186. See Constitution Act, 1982, pt. VI (Distribution of Legislative Powers), s. 92(13) (International
Labor Organization treaty addressed subjects of property and civil rights, which are within the
exclusive responsibilities of the provinces); Jeffrey L. Friesen, The Distribution of Treaty-Implementing
Powers in Constitutional Federations: Thoughts on the American and Canadian Models, 94 COLUM. L.
REV. 1415, 1430–31 (1994).
187. See, e.g., Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, para.
69 (Can.) (“[The Convention on the Rights of the Child] has not been implemented by Parliament. Its
provisions therefore have no direct application within Canadian law.”).
188. Koren L. Bell, Note, From Laggard to Leader: Canadian Lessons on a Role for U.S. States in
Making and Implementing Human Rights Treaties, 5 YALE HUM. RTS. & DEV. L.J. 255, 268 (2002).
189. Id. at 268–70.
190. See id. at 268.
191. The primary incident occurred when Alberta expressed great reservations with the Convention
on the Rights of the Child, resulting in failure to implement the treaty at either the federal or provincial
level, despite its ratification. See id. at 270.
192. The Spending Power cannot be used to condition funding on state participation in programs or
regulatory regimes that are beyond the scope of the national government’s other powers. See Canada
(Attorney General) v. Ontario (Attorney General), (Canada)) [1937] A.C. 355, para. 6 (P.C. (appeal
taken from Can.)). However, recent cases in intermediate appellate courts may demonstrate “unspoken
judicial consensus” that the federal government can both fund projects dealing with subjects it could
not regulate and attach conditions to receipt of those funds. See David W.S. Yudin, The Federal
Spending Power in Canada, Australia, and the United States, 13 NAT’L J. CONST. L. 437, 460–62
(2002).
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states to implement certain treaties within the states’ traditional spheres of
responsibility.
Unlike Canada, Australia’s national government has the power to implement
treaties beyond the scope of its other enumerated powers.193 The Australian
High Court recognized this power fairly recently, and Australia has taken steps
to ensure that the state and territorial governments retain a key role in treaty
implementation. Like Canada, Australia maintains an extensive consultation
process with the states during both treaty-making and treaty-implementation.194
Additionally, Australia relies upon the states and territories to implement a
number of treaties within their traditional spheres of authority. Though generally successful,195 this approach has resulted in some practical difficulties,196
and there were incidents in which a single state did not implement an international obligation.197 Australia’s Northern Territory, for example, did not initially
participate in an international prisoner exchange treaty regime.198 However, the
territorial government implemented its obligations when other nations threatened to consider the whole of Australia in breach and not extend treaty rights to
any Australian citizens if the Northern Territory did not comply with the treaty
regime.199 This incident demonstrates the efficacy of state implementation of
treaty obligations when the international obligation is coupled with a practical
incentive to implement it.200
These international examples and the American states’ voluntary compliance
with international legal obligations, both in implementing the VCCR and other
historical obligations, demonstrate that the states are prepared to help the
federal government uphold international legal obligations in the future.
3. The Efficacy of the Spending Power Inducement in Treaty Implementation
The utility of the Spending Power and states’ general willingness to implement international obligations demonstrate the likely efficacy of the Avena Act.
193. See TRONE, supra note 185, at 87–88 (citing Commonwealth v. Tasmania, (1983) 158 C.L.R. 1,
124–25 (Mason J), 170–71 (Murphy J), 218–19 (Brennan J), 253–58 (Deane J)).
194. See Cyril Robert Emery, Treaty Solutions from the Land Down Under: Reconciling American
Federalism and International Law, 24 PENN ST. INT’L L. REV. 115, 141–46 (2005).
195. See Brian R. Opeskin & Donald R. Rothwell, The Impact of Treaties on Australian Federalism,
27 CASE W. RES. J. INT’L L. 1, 57 (1995) (“This approach has generally been a successful one provided
there has been a clear division of responsibility between Commonwealth and states over the relevant
subject matter and the Commonwealth has been able to gain the cooperation of the states in creating a
cooperative legislative scheme.”).
196. Id. at 57–58 (describing practical problems stemming from cooperative federalism approach,
such as delays and lack of uniformity).
197. See TRONE, supra note 185, at 38 & n.221.
198. See id. at 38 n.221.
199. Id.
200. Australia, however, has elected to rely primarily on consultation with state and territorial
governments at the early stages of treaty making as the primary means of safeguarding federalism
interests. See TRONE, supra note 185, at 33–37 (describing the various consultation mechanisms used in
Australia and deeming the “Joint Standing Committee on Treaties,” made up of representatives of the
federal and state governments as “a conspicuous success”).
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The Avena Act is a calibrated option to induce states to implement an ICJ
ruling that has a minimal probability of affecting an individual’s case.201 The
Justice Assistance Grants are thus a sufficient incentive to ensure compliance.
Once a potentially abstract international legal obligation is joined to a potential deprivation of material support, states are likely to implement the obligation, even if the state does not enthusiastically support the policy behind the
obligation.202
Furthermore, the federal government has a far from perfect track record in
consistently adhering to its treaty obligations. Shortly before Medellı́n, for
example, the United States withdrew from the Optional Protocol of the VCCR.203
Thus, there is a clear record of federal backsliding on treaty obligations. The
states would not be immune from similar problems, and the federal government
would have to act carefully in ensuring that the states continued to receive
incentives to implement international legal obligations. If funds for a particular
grant to which a treaty-implementing condition was attached were no longer
available, the federal government would need to re-attach that condition to a
different grant. Given the range of federal grants to the states that are available,
this is unlikely to present a substantial problem.204
Additionally, the Spending Power can help the federal government implement treaties that are signed but not ratified, such as the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW).205 Like
the Canadian government, which seeks implementation of certain treaties at the
provincial level prior to ratifying them, the U.S. federal government could
ratify treaties after states had accepted the conditional grants that induced
implementation. With the implementation already in place, the Senate might be
more willing to ratify a treaty, possibly with understandings that indicated that
the conditional grants sufficed as implementing measures. In some circumstances, the Spending Power may be the only option available to provide for
informal participation in a treaty regime, even under the nationalist conception
of the Treaty Power, due to political constraints.206
Finally, the Spending Power enables state governments to go beyond a
minimum requirement that the federal government might impose through other
201. See Medellı́n v. Texas, 552 U.S. 491, 536–37 (2008) (Stevens, J., concurring in the judgment)
(“The cost to Texas of complying with Avena would be minimal, particularly given the remote
likelihood that the violation of the Vienna Convention actually prejudiced Jose Ernesto Medellı́n.”).
202. See supra notes 198–99 and accompanying text.
203. See Medellı́n, 552 U.S. at 500 (majority opinion) (citing Letter from Condoleezza Rice, Sec’y
of State of the United States, to Kofi A. Annan, Sec’y-Gen. of the UN, Mar. 7, 2005).
204. Despite budget constraints, the Justice Department gave over $1.6 billion in assistance to state
and local police departments for FY 2008. Press Release, supra note 109.
205. Dec. 18, 1979, 1249 U.N.T.S. 13.
206. The two-thirds majority threshold in the Senate for treaty ratification often limits formal
participation in treaty regimes, but simple majorities in both houses (plus presidential signature) can
implement regular legislation.
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types of legislation.207 The proposed Avena Act, for example, allows states to
fashion remedies in addition to a rehearing to determine if prejudice occurred.
Thus, states could, for example, exclude any testimony made before a defendant
was read consular rights or preclude imposition of certain penalties if they so
choose.
CONCLUSION
The Spending Power provides a constitutional and reliable option for the
implementation of 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 VCCR rights is the
quintessential example of such an obligation. While 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.
207. Cf. Lee, supra note 86, at 650 (“[A]llowing states to spearhead implementation [of the VCCR
by ensuring their own arresting officers provide notification] can lead to greater, more effective
execution of such rights by permitting experimentation with different procedures and approaches.”).