US v/ Arizona meet Medellin: Section 2(B) meet Consular Notification

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.” U.S. v. Arizona 567 U. S. ____ (2012)

“The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them.”  Medellin v. Texas 552 U.S. 491 (2008)

With today’s result in U.S. v. Arizona permitting Section 2(B) of S.B. 1070 to survive, Arizona state officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government.  Whether this provision will survive other ongoing challenges remains an open question.  In the meantime, it might be useful that those state officers making those checks might add something to that process.  When the state officer finds the individual is not an American citizen – whether a legal or illegal alien – in appropriate cirumstances the officer might be required to inform the alien of their right to  speak to the consul of their country pursuant to the Vienna Convention on Consular Relations.

After all, since the Medellin decision of four years ago and the execution of Mr. Medellin, Congress has taken no action to put in place implementing legislation of a kind that would assure the meaningful application of the Vienna Convention on Consular Relations in the states.  In the absence of Congressional legislation and given the Supreme Court striking down the Presidential efforts to implement the Avena decision of the International Court of Justice as improper interference with the state courts, U.S. v. Arizona may have an unintended consequence of suggesting an avenue to protect alien consular rights at the earliest point at which Arizona becomes aware of the nationality of a person that its officers have stopped, detained, or arrested.  If state officers are permitted to make the inquiry, it would seem that if that inquiry returns information that the person is  not a U.S. citizen, then as the process moves into the zone foreseen in Article 36(1)(b) of the Vienna Convention on Consular Relations (“a [non-U.S.] national…is arrested or committed to prison or to custody pending trial or is detained in any other manner”) the opportunity to inform that same alien of these rights would appear to be a modest additional incident of that power to inquire.

Beyond the kind of training or materials that is done by the State Department for local police forces, the hook of this inquiry power might be made to carry with it the responsibility to make the alien aware of rights that the United States has agreed said alien in fact has.  Moreover, this type of effort might help to reduce tension between the United States and other nations about the manner in which we implement these international obligations.  While not directly implementing for the 51 Mexican nationals concerned in the Avena decision, it might certainly reduce the likelihood of such a lack of notice of consular rights happening in the future.  This effort might help reassure foreign states concerned about the status, safety, and security  of their nationals, that these protections for aliens are being routinized in the American federalism.  This routinization would encourage reciprocity and the protection of Americans abroad unfortunately caught in similar circumstances by treaty partners.

And, if said Section 2(B) is considered unconstitutional in some subsequent challenges, the practice of informing persons can become a habit that reminds the local police and the state courts that the United States has accepted these international law obligations and international law forms part of our law.  Who knows, even if subsequently the right to inquire under Section 2(B) is struck down, maybe the practice at informing some alien suspects of the Consular Rights might become a modest addition to Miranda warnings for all suspects with no apparent cost to the United States citizens who would hear them but of importance to the foreigners who have been granted those protections.