Editorial: Medellin v. Texas - Another Opening for State-Level Reform

28 March 2008

It is well known that the current U.S. administration is hostile to Internet gambling in all its forms. But even in these paranoid, Patriot-Act times, it seems a little much to find a Death Row case that affects the industry. Nevertheless it is true.

The case, called Medellin v. Texas, was heard by the U.S. Supreme Court, and the decision came out on March 25. Medellin, a Mexican national residing in Texas, was convicted of murder and sentenced to death. On appeal, he alleged that he had not been given all his rights.

Under the Vienna Convention on Consular Relations, which the United States signed, foreign nationals arrested for crimes in the United States are supposed to have the right to speak with a diplomatic representative from their own country. This did not happen in Medellin’s case.

In fact, it was hardly happening at all when Mexican nationals were arrested, and so Mexico went to the World Court, which said, in a case called Avena, that the United States was in violation. Since Medellin did not get his chance to speak with the Mexican consulate, he alleged this was reason enough to overturn his conviction.

He was turned down by a 6-to-3 Supreme Court majority. The grounds on which the court turned him down, however, are significant in many other areas, most notably international law. And that interpretation of how to apply international law may soon affect Internet and interactive gaming in the United States.

The controversy is technical, and it turns on whether a treaty can be considered “self-executing.” A self-executing law or measure comes complete. It announces the aim and also provides the rules by which the aim is to be achieved -- it immediately becomes binding law.

By contrast, one which is not self-executing merely announces the desired result, and leaves it up to others to devise the means of getting there. Until those means are in place, it’s generally not binding.

Now it is established that once the United States fully ratifies a treaty, that treaty becomes U.S. law; and if need be, it can overrule state law. This is what pro-gambling advocates are counting on in relation to the WTO and possibly other treaties. If the United States has undertaken a treaty obligation to allow foreign I-gaming operators access to its markets (this line of reasoning goes), then contrary state laws should not be allowed to stand in the way.

The Medellin decision, however, looks to be a very useful roadblock for the anti-gambling crowd. The Supreme Court majority in Medillin says that if the United States signs a treaty that is not self-executing, it is up to Congress to change U.S. law -- this process is called implementing legislation -- to conform with that treaty.

And so, according to this new interpretation, unless -- and until -- Congress does so, such a treaty is not enforceable as state law in a state court. If state law does not follow the treaty, neither the executive branch nor the courts can simply reach in and change it. Their jobs are to enforce and uphold the law, not to rewrite it, even if it is out of date.

There is a flip side, of course. Under this interpretation, if Congress wants to, it can stall on a non-self-executing treaty, which, in turn, means the states do not have to change their laws.

What does that mean for Internet gambling? It means that from now on it is going to be much more difficult to cite WTO or other treaty obligations against state gambling laws. Why? Because the WTO's General Agreement on Trade in Services is not self-executing -- in fact very few broad transnational treaties are. They tend to line out the general goals, and allow each member nation to come up with its own procedure to accomplish those goals.

That means, in turn, that the best hope for using trade treaties to open opportunities for I-gaming rests with measures like the Internet Gambling Regulation and Enforcement Act, Congressman Frank’s bill to license U.S. Internet gambling on a nationwide basis.

Once I-gaming is placed under U.S. national law, then yes, the state laws will have to conform -- although the Frank Bill gives each state, Indian tribe and even the major sports leagues the chance to "opt out." Unfortunately this bill is a long way from gathering the momentum it would need to become law. As we have frequently noted in these pages, gambling is radioactive in an election year.

But even as one door seems to be closing, another is opening. If great deference is being given to state laws, then it makes state-level reform -- the opening of Internet poker, for instance -- all the more important.

Unlike the federal government, the states have a reason to liberalize Internet gambling laws: They need the money. This is probably the place to look for real progress in expanding Internet and interactive gambling in America. For in this country, change always comes easier from the bottom up, than from the top down.

Mr. Owens is a lawyer in Sacramento, Calif., specializing in Internet gambling law. Released in 2005, he coauthored "Internet Gaming Law" with Professor I. Nelson Rose, America's senior authority on gambling.