Comments on: Analysis: How to say no to the President? http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Valerie Epps http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-15320 Valerie Epps Sat, 22 Mar 2008 09:55:33 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-15320 Suffolk Transnational Law Review is just in the process of posting a Symposium on the Medellin v. Texas Case on its web site. The intorduction and three of the seven articles can now be found at: http://www.law.suffolk.edu/highlights/stuorgs/transnat/symposium.cfm with more articles appearing shortly. Suffolk Transnational Law Review is just in the process of posting a Symposium on the Medellin v. Texas Case on its web site. The intorduction and three of the seven articles can now be found at: http://www.law.suffolk.edu/highlights/stuorgs/transnat/symposium.cfm with more articles appearing shortly.

]]> By: Jacques MacKenzie http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12224 Jacques MacKenzie Mon, 15 Oct 2007 22:01:16 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12224 <i>If you insist on calling this a successive habeas, I will insist that the Supreme Court can grant cert in the old case as improvidently dismissed.</i> And I will insist on zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz If you insist on calling this a successive habeas, I will insist that the Supreme Court can grant cert in the old case as improvidently dismissed.

And I will insist on zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

]]> By: Roger Friedman http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12213 Roger Friedman Mon, 15 Oct 2007 00:17:32 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12213 Kent, I will respect your decision not to extend this thread. However, I have rechecked the procedural history and the Avena decision did not come out until Medellin was on federal habeas. Cert was granted, then dismissed. Then Medellin brought his new state habeas, which did not accept the Avena judgment but readdressed the merits of the consular issue. If you insist on calling this a successive habeas, I will insist that the Supreme Court can grant cert in the old case as improvidently dismissed. Kent, I will respect your decision not to extend this thread. However, I have rechecked the procedural history and the Avena decision did not come out until Medellin was on federal habeas. Cert was granted, then dismissed. Then Medellin brought his new state habeas, which did not accept the Avena judgment but readdressed the merits of the consular issue. If you insist on calling this a successive habeas, I will insist that the Supreme Court can grant cert in the old case as improvidently dismissed.

]]> By: Kent Scheidegger http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12209 Kent Scheidegger Sun, 14 Oct 2007 03:48:20 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12209 Roger, I disagree with much of your comment, but this thread has already gotten long, so I won't go through each one. I will comment on this one: "Third, Texas courts have the first shot at deciding the federal issue, but if they choose not to, the federal courts are open to Medellin." Medellin's first federal habeas petition raised the same claim he is making now. Congress has flatly forbidden a second federal habeas on the same claim. No exceptions. That statute is later than the treaties at issue here. In the event of a conflict between a treaty and an act of Congress, the later controls. No, the federal courts are not open to this claim. Roger, I disagree with much of your comment, but this thread has already gotten long, so I won’t go through each one. I will comment on this one: “Third, Texas courts have the first shot at deciding the federal issue, but if they choose not to, the federal courts are open to Medellin.”

Medellin’s first federal habeas petition raised the same claim he is making now. Congress has flatly forbidden a second federal habeas on the same claim. No exceptions. That statute is later than the treaties at issue here. In the event of a conflict between a treaty and an act of Congress, the later controls. No, the federal courts are not open to this claim.

]]> By: Roger Friedman http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12204 Roger Friedman Sat, 13 Oct 2007 20:02:14 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12204 Kent, I don't think the question is as you state it. First, we are not looking at the consular treaty any more. We are looking at the ICJ treaty, which either (1) is self-executing, or (2) being directed at the judiciary, is made applicable by rules relating to the recognition of foreign judgments. Whether Congress could or could not provide for the decisions of the ICJ to be binding in the face of the treaty is not a question presented. Second, the president's letter at most established that he had no foreign policy objection to the implementation of the ICJ decree. The ruling itself became a matter of federal due process law through the processes described above. The president had every reason to assume that the state courts would comply with federal law; he issued no order to the state courts. Third, Texas courts have the first shot at deciding the federal issue, but if they choose not to, the federal courts are open to Medellin. Texas is not being hijacked into carrying out a federal program, as in New York v. US. While the Supreme Court's decision could take the form a habeas order (the state shall grant an appropriate hearing within x days or release the defendant), more likely is a vacate and remand under the damoclean sword of the hearing taking place in district court on federal habeas. Kent, I don’t think the question is as you state it. First, we are not looking at the consular treaty any more. We are looking at the ICJ treaty, which either (1) is self-executing, or (2) being directed at the judiciary, is made applicable by rules relating to the recognition of foreign judgments. Whether Congress could or could not provide for the decisions of the ICJ to be binding in the face of the treaty is not a question presented. Second, the president’s letter at most established that he had no foreign policy objection to the implementation of the ICJ decree. The ruling itself became a matter of federal due process law through the processes described above. The president had every reason to assume that the state courts would comply with federal law; he issued no order to the state courts. Third, Texas courts have the first shot at deciding the federal issue, but if they choose not to, the federal courts are open to Medellin. Texas is not being hijacked into carrying out a federal program, as in New York v. US. While the Supreme Court’s decision could take the form a habeas order (the state shall grant an appropriate hearing within x days or release the defendant), more likely is a vacate and remand under the damoclean sword of the hearing taking place in district court on federal habeas.

]]> By: Kent Scheidegger http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12196 Kent Scheidegger Sat, 13 Oct 2007 02:19:51 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12196 You misunderstand. Mexico, not our government, took the case to The Hague. Our government fought it. (The decision was mixed, BTW. We won on some important points, but not all.) What the President's memo says is that, given we signed a treaty saying we would abide by the ICJ decisions once it decides a case within its jurisdiction, we should implement that by the state courts' complying with the decision. The question is whether he can order that or whether it requires an Act of Congress. You misunderstand. Mexico, not our government, took the case to The Hague. Our government fought it. (The decision was mixed, BTW. We won on some important points, but not all.) What the President’s memo says is that, given we signed a treaty saying we would abide by the ICJ decisions once it decides a case within its jurisdiction, we should implement that by the state courts’ complying with the decision. The question is whether he can order that or whether it requires an Act of Congress.

]]> By: The Plumber http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12194 The Plumber Sat, 13 Oct 2007 00:03:49 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12194 Thanks Kent. Have there been any other cases where a President has appealed to The Hague on behalf of a foreign national convicted in a US court? Thanks Kent.

Have there been any other cases where a President has appealed to The Hague on behalf of a foreign national convicted in a US court?

]]> By: Kent Scheidegger http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12191 Kent Scheidegger Fri, 12 Oct 2007 20:04:01 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12191 Joe, You seem to be equating an original writ with "original jurisdiction" as that term is used in Article III of the Constitution. That is a reasonable enough position on the face of Constitution and statutes, but the Supreme Court decided to the contrary 200 years ago in Ex parte Bollman, 8 U.S. 75, 100-101 (1807). Use of habeas to reconsider a commitment decision by another court is an exercise of appellate jurisdiction within the meaning of Article III. By its terms, 28 USC § 2244(b)(1) is not limited to the lower court. The Supreme Court ducked the issue in Felker but said it would be guided by this limitation on original writ petitions whether it was mandatory or not. Medellin is not within the scope of the Supreme Court's very limited Article III original jurisdiction in any event. That was the point of the jurisdictional debate in Bollman. Under the dissent's view that an original writ was original jurisdiction, the court had no jurisdiction. I suppose the government of Mexico could bring Medellin within the original jurisdiction by appointing him consul general of its brand-new Huntsville Consulate. I hope they are not reading this blog. They seem to love their murderers so much they might just do it. Joe,

You seem to be equating an original writ with “original jurisdiction” as that term is used in Article III of the Constitution. That is a reasonable enough position on the face of Constitution and statutes, but the Supreme Court decided to the contrary 200 years ago in Ex parte Bollman, 8 U.S. 75, 100-101 (1807). Use of habeas to reconsider a commitment decision by another court is an exercise of appellate jurisdiction within the meaning of Article III.

By its terms, 28 USC § 2244(b)(1) is not limited to the lower court. The Supreme Court ducked the issue in Felker but said it would be guided by this limitation on original writ petitions whether it was mandatory or not.

Medellin is not within the scope of the Supreme Court’s very limited Article III original jurisdiction in any event. That was the point of the jurisdictional debate in Bollman. Under the dissent’s view that an original writ was original jurisdiction, the court had no jurisdiction.

I suppose the government of Mexico could bring Medellin within the original jurisdiction by appointing him consul general of its brand-new Huntsville Consulate. I hope they are not reading this blog. They seem to love their murderers so much they might just do it.

]]> By: Joe Richer http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12190 Joe Richer Fri, 12 Oct 2007 19:34:01 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12190 No, it's not in the Question Presented. That's why they'd have to act sua sponte (on their own motion). It's not unprecedented, but it is rare. So is giving an extra 26 minutes for oral argument. Most likely, they would order supplemental briefing. I'm not sure whey they granted cert in the first place. I wonder if they can DIG the case after oral argument? No, it’s not in the Question Presented. That’s why they’d have to act sua sponte (on their own motion). It’s not unprecedented, but it is rare. So is giving an extra 26 minutes for oral argument. Most likely, they would order supplemental briefing. I’m not sure whey they granted cert in the first place. I wonder if they can DIG the case after oral argument?

]]> By: Jacques MacKenzie http://www.scotusblog.com/2007/10/analysis-how-to-say-no-to-the-president/#comment-12186 Jacques MacKenzie Fri, 12 Oct 2007 14:32:13 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-how-to-say-no-to-the-president/#comment-12186 <i>This could be the case where they use that power.</i> Is that in the Question Presented for the case? No. This could be the case where they use that power.

Is that in the Question Presented for the case? No.

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