But this is not mere irony. It is the proper operation of the rule of law under our Constitution. Despite the attitudes and actions of the current White House and five members of the Supreme Court, the Congress, under our system of representative democracy, necessarily predominates over the other branches. For this reason, the Supreme Court rightly ruled in Medellin that even treaties-and therefore "executive agreements," which are weaker than treaties-cannot be imposed on states absent explicit legislation from the national legislature. What the Court in Medellin reads the Constitution to intend is that, in the vital matters that international agreements often touch, the federal branch of government closest to the people, the Congress, must act before states and their citizens can be lawfully ordered to obey.
The Framers of the Constitution knew well the tendency of officeholders to attempt to encroach on the rights of the other branches. They attempted to provide safeguards for this eventuality through the constitutional separation of powers in the federal government and the Tenth Amendment, which leaves to the states all powers not granted to the federal government. By correctly interpreting the Framers' intentions in Medellin, the Court may have paved the way for a powerful demonstration that an "end-run around the Constitution" may not be quite as easy as it appears. If that occurs, not only could a deal some deem unconstitutional fail, but also, and equally important, the states will have taken a first, indispensable step toward restoring constitutional federalism.
