Despite all the wailing and gnashing of teeth over the Supreme Court's decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not, based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.
So the ball is squarely in Congress's court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice's decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further.
First, it should be limited to the 50 or so cases at issue in Avena and not yet otherwise resolved. For all others, the holding in the Bustillo portion of Sanchez-Llamas is and should remain the law.
Second, under the Avena decision, use at trial of a statement taken within a few days of arrest, before notification of the consulate became overdue, was not obtained in violation of the Vienna Convention and is not a ground for a claim.
Third, once any American court at any time has heard the claim of prejudice and rejected it on the merits, including as an alternative to a procedural default holding, our treaty obligations are satisfied and no further proceedings are required. We have no obligation to provide review of that holding on appeal or habeas.
Fourth, the reasoning underlying the Avena court's holding on procedural default only applies to defaults occurring before the consulate had actual notice of the case. Any claims not raised in the first proceeding after such notice can continue to be treated as defaulted.
Fifth, the required review should be conducted in the state courts, as the President tried to do in his memorandum. Many of these cases are in the notorious Ninth Circuit. Although that court is better than it used to be, it has not yet reached the point that we should trust it with these cases.
Finally, for the reasons expressed in footnote 1 of the Court's opinion, Congress should declare that Medellin himself has already received the process he is due, the United States is already in compliance with Avena in his case, and his case is specifically excluded from the reach of the statute.