Analysis: How to say no to the President?
The Supreme Court, deeply fascinated with its own role in an interconnected world legal order, spent extra time on Wednesday examining the question of how to say no to the President on a treaty matter and, if it does, to do so without harming the Chief Executive’s power to speak for the nation in the global community. It was apparent that, if the case of Medellin v. Texas (06-984) had come to the Court without presidential involvement, it would have been easy to decide — in fact, the issue in that context may already have been effectively decided last year. But President Bush put his authority at the very center of it, and heavy complications have followed. The Justices’ keen interest in those complications led Chief Justice John G. Roberts, Jr., to let the scheduled one-hour hearing Wednesday run on for an added 26 minutes — an especially rare gesture.
With cross-currents of constitutional and international law flowing freely, what appeared to be a majority of the Justices looked askance at a Presidential memo in February 2005, directing nine U.S. states to give 51 Mexican nationals convicted of crimes in those states a new chance to test their rights under an international treaty, the Vienna Convention on Consular Relations. What was troubling those Justices the most, it seemed, was that the President had sought to make binding a ruling by the World Court that would otherwise not have controlling effect on states’ ciminal procedures. That was worrisome for two reasons: it might intrude on the Court’s role to say what the legal meaning and effect of treaties is, and it might empower the World Court, in effect, to dictate the substance of American law.
This is not a Court (with a couple of exceptions among its members) that is genuinely fond of drawing meaning for American law from foreign sources. That skepticism found new expression in the Medellin case as several of the Justices looked at the World Court as a foreign entity that, through the President’s intervention, was intruding into domestic law — perhaps even at the expense of the Supreme Court’s power to say what the law is. Justice Antonin Scalia, for example, said he saw a constitutional problem with “giving an international body the authority to determine U.S. federal law. I am rather jealous of that authority. I don’t know on what basis we allow an international court to decide the content of American law.”
Justice Samuel A. Alito, Jr., said the effect of the Bush Administration’s defense of the presidential order that states obey a World Court ruling would be that “the President can take any treaty that is not self-executing and make it binding under federal law.” Solicitor General Paul D. Clement tried, without notable success, to deflect such suggestions. All that President Bush had done in the Mexican nationals’ case, Clement contended, was to make a decision that, for foreign policy reasons, America would comply with the World Court decision to give the Mexicans another review of their cases in state court.
Donald F. Donovan, a New York City attorney representing Mexican national Jose Ernesto Medellin, sought to keep the case within a narrow focus. He argued that all that was at issue was a U.S. obligation under treaties it had signed and embraced to comply with a final ruling of the World Court on remedies for a violation of access to consular officers for accused aliens. President Bush had acted only to meet that obligation, Donovan argued in a refrain repeatedly stated. But he encountered a flurry of hypothetical reasons over broader implications, with the Chief Justice pursuing hypotheticals to test what power would be left to the Supreme Court if the World Court could be made the instrument for declaring American law. If the World Court’s judgment on the Mexican nationals’ legal rights here were binding federal law inside the U.S., Roberts wondered, would the Justices have any authority to second-guess the content of that law? “We would have no authority to review the judgment itself?” he asked with notable skepticism.
Justice Anthony M. Kennedy also seem puzzled whether the Supreme Court could interpret the scope of a World Court ruling if it were ambiguous in any significant way. And Kennedy twice raised concerns about whether the President could “displace the authority” of the Court to interpret judgments of the World Court. Both Kennedy and Roberts were told, in response, by Donovan that a court ruling to enforce the World Court judgment would by itself constitute the application of federal law — here, the federal law of carrying out an obligation undertaken by treaty. The World Court ruling itself, the attorney said, is federal law — binding on the states by virtue of the Supremacy Clause, and also binding because the President had concluded through his Article II power to it was in the nation’s interest to comply with the World Court judgment.
The hearing did highlight a difference between Medellin’s lawyer and Clement, even though they are on the same side. Clement stressed that the government did not support Medellin’s argument that, without the President’s action, the World Court decision would be binding on the state courts in the U.S. “The President’s role is critically important,” the Solicitor General argued. When Justice Kennedy asked about the effect had the President decided not to comply with the World Court decision, Clement responded: “We would be on the other side.” Clement added that “we don’t think this judgment is enforceable on its own terms.”
Two members of the Court who often talk of the value of looking to foreign law for guidance, Justices Stephen G. Breyer and Ruth Bader Ginsburg, were clearly the most willing on Wednesday to show support for the World Court’s authority and the duty of the U.S. to fulfill its promise of obeying World Court judgments in interpreting the Vienna Convention. Thus, they were the most energetic questioners of Texas’ state Solicitor General, R. Ted Cruz.
Justice Breyer sought Cruz’s response to a simple “chain of logic,” going from the language of the Constitution making treaties “the law of the land,” the U.S. agreement to the Vienna Convention and its agreement to abide by World Court rulings applying that treaty, and then to the requirement of the World Court that states take full account of the Convention’s strictures. Cruz said that Texas did not dispute that treaties were the law of the land, but said that what was at stake here was the action of the President in seeking to make the World Court judgment binding on the states in contradiction to their own laws. The Convention, he said, is not a self-executing treaty, and the President cannot make it so on his own.
Justice Ginsburg repeatedly returned to the basic theme that the U.S. had promised to abide by the World Court’s application of the Vienna Convention. This country, she said, had “accepted the authority of this tribunal, and to be bound to follow its decisions.”
Among the Justices, only David H. Souter spent some time exploring whether the Court could avoid a decision that would reject the President’s authority to implement the World Court judgment by simply ruling, on its own, that the international tribunal’s decision on the Mexican nationals was binding. Questioning Cruz, for example, Souter wondered whether there was any “positive rule, in international or domestic law, which precludes this Court from being the implementing authority” of a World Court decision? The state’s lawyer replied that the Court was “the final authority to determine federal law,” but said that, if it were to do so in the Medellin case, it would have to overrule its ruling of a year ago in the case of Sanchez-Llamas v. Oregon finding that the Vienna Convention does not give foreign nationals a right to claim violation of their Convention rights if such claims are barred by state criminal procedures.
Medellin’s lawyer and the Justice Department take the view that the Sanchez-Llamas decision only dealt with an interpretation of the Convention’s meaning, not with an actual Court judgment in a specific case. Medellin contends, though, that the judgment is binding on the state on its own terms, under the Supremacy Clause, but the government takes the view that it is to be implemented because the President has said so.
The Court is expected to issue its final ruling on the case by late next spring.
[…] Justice Antonin Scalia: …said he [Justice Scalia] saw a constitutional problem with “giving an international body […]
Pingback by UrbanGrounds » Blog Archive » President Bush: Kowtowing to International Law in Texas Death Row Case — October 10, 2007 @ 2:32 pm
CHIEF JUSTICE ROBERTS: So if [the President] determines that the judgment should not be enforced and this Court determines, based on our construction of the treaty and the judgment that it should be enforced, which determination controls?
This reminds me of Roper v. Simmons.
There, the Supreme Court fabricated a treaty obligation that the Senate and the President had not agreed to. It seems just as inappropriate for the Supreme Court to ignore a treaty obligation that both political branches say exists, if the existence of such an obligation would not violate the Constitution.
This case is about judicial activism, plain and simple.
Comment by Jacques MacKenzie — October 10, 2007 @ 4:39 pm
I wonder about the implications for Presidential authority to interpret and impose (or not) ostensible obligations of other treaties … the Geneva Conventions, for instance?
That would seem to be part of the reason for the distinction between Clement’s argument and Donovan’s.
Comment by Andy Lowry — October 10, 2007 @ 4:41 pm
Bizarrely, I find myself siding with Justice Ginsburg 100%.
Comment by Jacques MacKenzie — October 10, 2007 @ 5:28 pm
I find this this be an exceedingly difficult issue to resolve in my own mind. The SC has a legitimate issue with the notion that Congress and the President can make a treaty that, in effect, strips the courts of what it sees as a constitutionally mandated duty. Yet, at the same time, the ability for Congress and the President to make a treaty is an important function of their respective branches. And if they make a treaty that years down the road is gutted by the SC, what incentive do foreign powers have to make a treaty with the USA. If you side with the President, you make the role of the SC weaker to some extent. But if you side with Texas, you make the role of the President weaker to some extent.
Logically, Medellin has the stronger case. But I remain unconvinced that this logic produces a result that is actually healthy for the country as a whole.
Comment by Daniel Thomas — October 10, 2007 @ 7:03 pm
If you side with the President, you make the role of the SC weaker to some extent
I don’t think this makes the Supreme Court any weaker. The Supreme Court is just in a different posture in this case than it was in Sanchez. Sanchez need not be overruled in any way, shape, or form. When i was referring to judicial activism, I meant the courts of Texas. I also think the state of Texas can get the ultimate outcome it wants while losing on the legal question presented to the Court.
Comment by Jacques MacKenzie — October 10, 2007 @ 7:09 pm
“Justice Anthony M. Kennedy also seem puzzled whether the Supreme Court could interpret the scope of a World Court ruling if it were ambiguous in any significant way.”
Just reading the transcript (which I acknowledge is not as good as being there), I don’t think he’s puzzled. I think he thinks that the ICJ decision can be interpreted so as to not require reopening Medellin’s case.
I think so, too.
Comment by Kent Scheidegger — October 10, 2007 @ 7:35 pm
And here I was, hoping for a contentious debate with you, Kent. I guess not!
Comment by Jacques MacKenzie — October 10, 2007 @ 7:55 pm
If the Texas conviction gets thrown out, who holds Medellin accountable for raping and murdering these two girls?
If Medellin cannot be held accountable, can he then come back and sue the state of Texas for wrongful imprisonment?
I’m not a lawyer, so please excuse my ignorance.
Comment by The Plumber — October 10, 2007 @ 9:22 pm
I went to the oral argument today and found it fascinating. I wonder if the S.Ct. could avoid the Federalism issue by assuming original jurisdiction and issuing a writ of habeas corpus. That way the U.S. would not violate its international obligations and would comply with the treaty and the ICJ decision. Maybe the Court would have to affirm the Texas decision and wait for Medellin to petition for a writ of habeas corpus, or maybe the Court could just do it sua sponte.
Comment by Joe Richer — October 10, 2007 @ 9:24 pm
The 800 pound gorilla in the room, barely mentioned in the oral arguments, is the death penalty.
Certain Justices will look for any excuse to delay/overturn a death sentence. The ICJ would love to find a way to overrule or reduce our use of the death penalty. But the majority of the Justices want to make sure that the ICJ keeps their mitts off our death penalty, among other things.
Comment by Tom Barnard — October 10, 2007 @ 11:54 pm
So any memo that President Bush writes is law, according to Clement? At least when the Pope makes Jus Divinum he has to be ruling ex cathedra.
Comment by Joshua Lannik — October 11, 2007 @ 7:14 am
It seems to me that a broad interpretation of the status of treaties as “laws of the land” - laws that can even trump state constitutions - is that it means, in effect, that the President and a Senate supermajority can undo any part of the Constitution they choose, merely by executing a treaty. And that doesn’t seem to make sense in a Constitutional context.
Comment by Brian Scheetz — October 11, 2007 @ 12:07 pm
Chief Justice Roberts and Scalia were worried about the implications for Marbury if the President’s foreign affairs power contains a judicial component which allows him to construe (conslusively?) Federal law when he determines both that the national interest requires him to do so, and also requires a particular result. Justice Souter (alone) seemed open to the possibility that the President’s determination did not implicate Marbury, because the Court could affirmatively decide to validate the President’s determination, not because it is the President’s construction but because it is the correct construction. This would avoid the Marbury problem and ignore the Executive’s embarassing overreach.
It seems that this is a case where allowing the United States, which is not a party to this particular controversy, such a privileged position that it may argue its points before the Court, confuses the issues in a manner potentially detrimental to deciding the case.
Comment by Brian Jones — October 11, 2007 @ 5:14 pm
The Federal Government may make treaties with regard to the powers given to it in the Constitution regarding foreign afairs. All other rights reserved to the states or the people may not be affected by one person, the president, just because a treaty was signed.
Comment by Jim Garcia — October 11, 2007 @ 6:27 pm
The Plumber asks, “If the Texas conviction gets thrown out, who holds Medellin accountable for raping and murdering these two girls?”
IMHO, the chances of the conviction getting thrown out are nearly zero. The prejudice he is claiming at this point, and which he says he is entitled to get a new hearing on, relates to the penalty phase, not guilt. At most, he would get a retrial on the sentence.
I don’t think he will even get that, though. If the Texas courts have to decide whether he was prejudiced by the failure to notify the consulate, I expect they will decide he was not. The mitigating evidence he claims the Mexican government would have helped him put on pales in comparison to the horrifying facts of this crime and his utter lack of remorse afterward.
He won’t get a second federal-court bite at the apple because (1) Congress has flatly prohibited it, see 28 U.S.C. § 2244(b)(1), and (2) he is in the Fifth Circuit, where Acts of Congress are actually obeyed even in capital cases.
Comment by Kent Scheidegger — October 11, 2007 @ 6:52 pm
And this is why we have nothing to argue about, Kent!
Comment by Jacques MacKenzie — October 11, 2007 @ 7:58 pm
But 2244 only applies to circuit and district judges, not the Supreme Court acting under original jurisdiction. No act of Congress attempts to (or could) strip the Supreme Court of its original jurisdiction to hear habeas petitions. They just choose not to do it. This could be the case where they use that power.
Comment by Joe Richer — October 11, 2007 @ 11:44 pm
In other words, it’s a different apple.
Comment by Joe Richer — October 11, 2007 @ 11:46 pm
This could be the case where they use that power.
Is that in the Question Presented for the case? No.
Comment by Jacques MacKenzie — October 12, 2007 @ 10:32 am
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?
Comment by Joe Richer — October 12, 2007 @ 3:34 pm
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.
Comment by Kent Scheidegger — October 12, 2007 @ 4:04 pm
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?
Comment by The Plumber — October 12, 2007 @ 8:03 pm
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.
Comment by Kent Scheidegger — October 12, 2007 @ 10:19 pm
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.
Comment by Roger Friedman — October 13, 2007 @ 4:02 pm
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.
Comment by Kent Scheidegger — October 13, 2007 @ 11:48 pm
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.
Comment by Roger Friedman — October 14, 2007 @ 8:17 pm
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
Comment by Jacques MacKenzie — October 15, 2007 @ 6:01 pm
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.
Comment by Valerie Epps — March 22, 2008 @ 5:55 am