What is the Supremacy Clause - Attorney Carlos GaminoBy Carlos Gamino

Here’s a simple question: are treaties held between the U.S. and another nation considered law within our borders?

As it happens, there is almost a simple answer to this question in Article IV of the U.S. Constitution, in what is known as the “Supremacy Clause.”

This clause (Article IV, Clause 2) establishes that the Constitution is the supreme law of the land and that state courts are bound by the supreme law.

It reads, “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or the laws of any state to the contrary notwithstanding.”

Here’s the translation: Once ratified, all international treaties are protected as law by the Constitution. Anything described in the Constitution as law supersedes any individual state law, or contrary decisions by state judges.

The 10th Amendment gives states the right to draft laws as they see fit outside of those described in the Constitution. But if it’s written on that sheet of parchment, it’s hands off.

However, the Supreme Court has interpreted the supremacy clause in ways that contradict its text and original purpose. In fact, in 2008 the court suggested that the clause doesn’t mean what it says as far as treaties are concerned.

This somewhat surprising decision occurred in a case involving Texas’s failure to notify Mexican citizens facing the death penalty that they were entitled by a treaty to speak to their consulate.

In that case, Medellin v. Texas, the court held that the treaty (and a decision of the International Court of Justice interpreting it) weren’t actually enforceable against Texas. The ruling further determined that while a treaty is an international commitment or obligation on the part of the United States, it is not automatically a binding domestic law, which according to the decision would require direct and specific legislation by Congress.

So why is this important?

As the U.S. opens its doors to Syrian refugees, the Supremacy Clause is once again up for reinterpretation in states that are less than enthusiastic about the President’s show of goodwill.

That is precisely what happened earlier this year in—once again—Texas, when a federal judge ruled, contrary to the Supreme Court ruling of 2008, that state efforts to halt the resettlement of Syrian refugees accepted under international obligation by the U.S. are without legal merit.

Guess which Constitutional mechanism this particular judge based his ruling on.

Evoking the Supremacy Clause, Judge David Godsby explained, “There is nothing in the law that gives the state veto power over any decision of the federal government or permits any state to discriminate against certain refugees based on their nationality, in fact the law says exactly the opposite.”

Is a further amendment necessary for clarification? The Supremacy Clause already says that treaties are law, and therefore are generally enforceable by our courts, unless of course Congress clearly indicates that a particular treaty will be enforced in some other way. But which a Supreme Court ruling to the contrary, direct legislative action may be the only way to alleviate further confusion.

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Carlos Gamino