Texas court rebuffs President on treaty powers
In a sharp rebuff of a claim of presidential power, Texas’ highest state criminal court ruled on Wednesday that President Bush did not have the constitutional authority to tell state courts to apply a decision of the World Court on the rights of foreign nationals arrested and prosecuted in the U.S.
“We hold,” the Texas Court of Criminals Appeals said, “that the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary.” Relying on the two-century-old doctrine that it is the duty of the courts “to say what the law is,” the state court said that power includes interpretation of treaties. “The clear import of this is that the President cannot dictate to the judiciary what law to apply or how to interpret the applicable law.” (Thanks to Howard Bashman for the alert to the decision; Howard has posted links to the five opinions in the case at his How Appealing blog. The discussion of the state court’s holding on presidential powers begins on page 15 of the main opinion linked by Howard.)
Because the ruling ultimately rests upon federal constitutional interpretation, it is subject to appeal to the U.S. Supreme Court. The Justice Department entered the case in Texas courts to defend energetically the President’s action. While it is unclear at this point whether it would take the issue on to the Supreme Court, the Bush Administration has not hesitated to appeal decisions that go against its conception of robust presidential authority.
Judge Michael Keasler’s majority opinion was supported, in its result, by all of the Court of Criminal Appeals’ nine judges. Keasler and four of his colleagues rejected President Bush’s directive to state courts to act to follow the World Court. A sixth judge joined the result only. Three other judges, led by Judge Cathy Cochran, dismissed Bush’s memorandum as less than a legal document binding on state courts so she found it “unnecessary to undertake a separation of powers analysis as does the majority.” One of the concurring judges, Presiding Judge Sharon Keller, said that Bush’s “unprecedented, unnecessary, and intrusive exercise of power over the Texas court system cannot be supported by the foreign policy authority conferred on him by the United States Constitution.”
The ruling vindicated the argument of the Texas state government that Bush did not have the authority he claimed.
The practical effect of the rulng was that Jose Ernesto Medellin, a Mexican national convicted of murder and sentenced to death for his role in the gang rape and murder of two teenage girls in Houston, was denied relief on his claim that his rights under an international treaty were violated when he was denied access to a diiplomatic official of his country after his arrest. The treaty at issue is the Vienna Convention on Consular Relations, assuring such contact with a consular officer.
The World Court had ruled, in a case of 51 foreign nationals in the U.S. (including Medellin), that American courts must find a way to obey the Convention that state officials had violated. President Bush issued a memorandum in February 2005, saying he had determined that state courts had to “give effect to the decision.”
The case, returned to the Texas courts by the Supreme Court on May 23, 2005 (in Medellin v. Dretke, 04-5928) following the President’s intervention, is Ex Parte Jose Ernesto Medellin, applicant (docket AP 75,207). It was argued in the state court on September 14 of last year. The preparation of the decision appeared to have been delayed as the state court studied the Supreme Court’s latest interpretation of the Vienna Convention (in Sanchez-Llamas v. Oregon , 04-10566, last June 28.
The state court, saying it was bound by the Sanchez-Llamas decision, concluded that Medellin could not rely on the World Court decision to set aside a state law that barred his Vienna Convention claim because he had failed to raise it at his trial. Thus, the court said, it would not consideer that challenge now.
The court then moved on to the President’s memorandum, and the government’s argument that this trumped any state law that barred relief under the Convention as interpreted by the World Court. (President Bush move to get state compliance to the World Court opinion even as he decided to withdraw the U.S. from the international protocol on enforcement of the Vienna Convention.)
Applying Justice Robert H. Jackson’s famous formula (in the 1952 case of Youngstown Sheet & Tube v. Sawyer) for weighing presidential claims of power, Judge Keasler’s opinion rejected the government argument that President Bush had exercised the maximum power of his office, under his foreign affairs authority. The White House memorandum, the court majority concluded, did not have behind it any congressional endorsement of presidential action “to unilaterally settle a dispute with another nation by executive order, memorandum, or directive.”
Moreover, the action, the court said, did not fall within “a zone of twilight” where Congress had silently gone along with such power. “In this instance, we find that the exercise of the President’s foreign affairs power ‘is at its lowest ebb.’ Having acted contrary to the implied will of Congress, we conclude that the President has exceeded his inherent constitutional foreign affairs authority by directing state courts to comply with” the World Court ruling.
It rebuffed the government’s argument that such a ruling would hamstring the President in settling international disputes. Bush could have entered into an executive agreement to settle the dispute with Mexico, it declared. “The absence of an executive agreement between the United States and Mexico is central to our determination…,” it concluded.
It rebuffed the government’s argument that such a ruling would hamstring the President in settling international disputes. Bush could have entered into an executive agreement to settle the dispute with Mexico, it declared. “The absence of an executive agreement between the United States and Mexico is central to our determination…,” it concluded.
This is terrible logic. If the President has the power to enter into executive agreements, then it makes sense that the courts should stay out of the issue — and foreign affairs generally — so that the President may prudentially exercise that power. To say the President hasn’t formally gotten an agreement yet overlooks the practical realities of back-and-forth diplomacy. The President may be on the verge of getting one, or the back-and-forth of diplomacy may in effect sustain a status quo that would not exist without the absence of court intervention — an otherwise unobtainable status quo that is the object of the President’s foreign policy.
The worst part of the case is this — which is just bad law — and if you wrote something like this on a bar exam, you’d fail: “The White House memorandum, the court majority concluded, did not have behind it any congressional endorsement of presidential action “to unilaterally settle a dispute with another nation by executive order, memorandum, or directive.” The President doesn’t need congressional approval to get an executive agreement or make a deal with another head of state. In the absence of a treaty or a statute, the President may enter into an executive agreement of his own power. That’s why they’re called EXECUTIVE agreements — they’re agreements between heads of state. They are not executory agreements, meaning agreements that execute pre-existing law. That is a basic and simple distinction.
Negotiating these kinds of things — even when treaties have been agreed to — is fundamentally political. It seems patently ridiculous that a President should have to trek to every state supreme court that decides it disagrees with the President’s foreign policy to explain that the court needs to butt out so that the President can conduct basic diplomacy and exercise his power to execute treaty obligations consistent with American foreign policy interests. Marbury v. Madison certainly didn’t stand for that.
Courts really just set themselves up to be attacked — both rhetorically and, unfortunately, with death threats and so forth — when they do things like this. Please note that I said unfortunately.
Comment by Jacques McKenzie — November 15, 2006 @ 3:51 pm
Furthermore, this is just yet another cheap attempt of a court manipulating the will and intent of Congress to further its own purposes.
In Roper v. Simmons, the silence of Congress somehow meant the approval of policy x. In this case, the silence of Congress means the disapproval of policy x. Instead of speaking for Congress when it is silent, perhaps the Court should take Congressional silence as an indication that Congress hasn’t yet exercised its power to intervene because it is giving the President the leeway to do his job. The Courts should try limiting their opining on such weighty matters to situations in which the Congress and the President are in conflict, i.e., Congress says X, the President says not X — you know, an actual CONTROVERSY, as stated in our Constitution.
Comment by Jacques McKenzie — November 15, 2006 @ 3:57 pm
Eck, ignore the random and misleading capitalization of Court!
Comment by Jacques McKenzie — November 15, 2006 @ 3:59 pm
“The President doesn’t need congressional approval to get an executive agreement or make a deal with another head of state.”
And the court didn’t say he did. The memorandum in question does not constitute an agreement or deal of any kind with Mexico. If the President had made one, it would be a different case.
http://www.crimeandconsequences.com/2006/11/medillin_decision.html
Comment by Kent Scheidegger — November 15, 2006 @ 6:47 pm
Has congress been silent? Medellin claimed that the government had violated his rights under the Vienna Convention by failing to notify him of his right to meet with his consular officials upon arrest. We are signatories of the Vienna Convention. Congress has ratified it. The President is merely directing that we follow our treaty obligations.
-Matt Kelley
Comment by matjkell — November 16, 2006 @ 8:57 am
The most troubling aspect of this decision is not that the President was rebuffed, but that the World Court was ignored.
A treaty duly entered into makes the U.S. a party to the world court system. The world court made a ruling within its jurisdiction regarding a treaty to which the U.S. is a party. The U.S. Supreme Court declined to hold that the ruling was incorrect or unconstitutional, although it demurred on how that decision ought to be enforced domestically, allowing the President to engage in a political process to do so.
It is one thing to argue that U.S. courts should not, as a general rule, accept as persausive authority, decisions of foreign courts on matters such as intepretation of the 8th Amendment, it is quite another to ignore decisions of foreign courts involving ratified treaties to which the U.S. is a party which make such foreign court decisions relevant.
With, or without the President’s intervention, those facts should have answered the question for the Texas Court. The Texas court’s defiance of a binding decision of a body given treaty authority to interpret a valid U.S. treaty is little different from its defiance on other ocassions of valid and binding decisions of the U.S. Supreme Court. Justice Moore was removed from office for just those kinds of defiant antics.
Hello Texas. You are no longer an independent Republic. Get with the program.
Comment by Andrew Oh-Willeke — November 16, 2006 @ 2:03 pm
“The U.S. Supreme Court declined to hold that the [ICJ] ruling was incorrect or unconstitutional…” Are you referring to SCOTUS’s Medillin decision or Bustillo (decided with Sanchez-Llamas)?
“Even according [respectful] consideration, the ICJ’s interpretation cannot overcome the plain import of Article 36. As we explained in Breard, the procedural rules of domestic law generally govern the implementation of an international treaty.” (p. 21.) Sounds like “incorrect” to me.
Comment by Kent Scheidegger — November 16, 2006 @ 2:52 pm
Kent Scheidegger: The memorandum in question does not constitute an agreement or deal of any kind with Mexico. If the President had made one, it would be a different…
Please let’s not grapple with straw-men. I never stated that “the memorandum in question constitutes an agreement or a deal of any kind with Mexico.” I am not arguing that the memo is an executive agreement.
The point is the President is the chief diplomat of the nation. The President is inhibited from getting an executive agreement (or choosing not to get one pursuant to ongoing negotiations) when courts step into foreign affairs issues based on their perception that there is no pre-existing deal or no deal forthcoming.
As I explain above, it is possible that back-room deals are going on we do not know about, that are not expressed in whatever form the Texas courts would prefer. The memo should be indication enough that the court should back out.
I’m not claiming the President can ORDER the courts to back out; I’m pointing out that the courts should defer as a matter of prudence.
That’s why we have the political question doctrine and so forth.
Comment by Jacques McKenzie — November 17, 2006 @ 11:36 am
Prudence does not authorize a state court to fail to follow a state statute. The statute is the law unless overridden by a higher law, and no such higher law was present in this case.
Comment by Kent Scheidegger — November 17, 2006 @ 11:57 am
Kent: Prudence does not authorize a state court to fail to follow a state statute.
I think now you are failing to observe the Constitution — most importantly, the fact that it exists. States no longer can pursue their own foreign policies.
Comment by Jacques McKenzie — November 17, 2006 @ 1:27 pm
Article VI, Clause 2
This 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Comment by Jacques McKenzie — November 17, 2006 @ 1:28 pm
Jacques,
The state is not pursuing a foreign policy. The state is enforcing its laws that define and punish murder and that prescribe the mode of reviewing verdicts. These are the quintessential domestic laws.
I’m not quite sure what you are implying by your quotation of the Supremacy Clause. My comment and the state court’s opinion are fully consistent with that clause. The state court is fully aware that a state statute must yield to the U.S. Constitution, acts of Congress, and treaties. However, none of these sources of superior law conflicts with the state statute as applied to this case.
An argument can be made that the Vienna Convention does override the state’s procedural default law, and the ICJ so held, but the U.S. Supreme Court decided to the contrary in Bustillo, and that decision is binding precedent for the Texas Court of Criminal Appeals. If you disagree, your beef is with SCOTUS, not the CCA.
Comment by Kent Scheidegger — November 17, 2006 @ 1:49 pm
Kent: However, none of these sources of superior law conflicts with the state statute as applied to this case.
That’s your opinion. But, in my view, if the CCA was right to act, then the President lacks the power to form executive agreements without the advice and consent of state courts. I think you are under-reading the Constitution. You know, the whole Art. 2 part.
Comment by Jacques McKenzie — November 17, 2006 @ 2:41 pm
“The state is not pursuing a foreign policy. The state is enforcing its laws that define and punish murder and that prescribe the mode of reviewing verdicts. These are the quintessential domestic laws.”
This is simply ignorant; there is no other word for it. The person in question in this case is a *foreign* national. By the very defination of the term foreign, we are no longer dealing with a issue that is domestic. Indeed, there would be no case and the President would not be involved if it was only domestic in nature.
Comment by Daniel Thomas — November 20, 2006 @ 10:21 pm
See Clark v. Allen, 331 U.S. 503, 517 (1947) (Douglas, J.).
Comment by Kent Scheidegger — November 21, 2006 @ 12:58 pm
See ZSCHERNIG v. MILLER, 389 U.S. 429 (1968) (Douglas, J.):
“In its brief amicus curiae, the Department of Justice states that: ‘The government does not . . . contend that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States’ conduct of foreign relations.’
The Government’s acquiescence in the ruling of Clark v. Allen certainly does not justify extending the principle of that case, as we would be required to do here to uphold the Oregon statute as applied; for it has more than “some incidental or indirect effect in foreign countries,” [389 U.S. 429, 435] and its great potential for disruption or embarrassment makes us hesitate to place it in the category of a diplomatic bagatelle.
As we read the decisions that followed in the wake of Clark v. Allen, we find that they radiate some of the attitudes of the “cold war,” where the search is for the “democracy quotient” of a foreign regime as opposed to the Marxist theory. 6 The Oregon statute introduces the concept of “confiscation,” which is of course opposed to the Just Compensation Clause of the Fifth Amendment. And this has led into minute inquiries concerning the actual administration of foreign law, into the credibility of foreign diplomatic statements, and into speculation whether the fact that some received delivery of funds should “not preclude wonderment as to how many may have been denied `the right to receive’. . . .” See State Land Board v. Kolovrat, 220 Ore. 448, 461-462, 349 P.2d 255, 262, rev’d sub nom. Kolovrat v. Oregon, 366 U.S. 187 , on other grounds. [389 U.S. 429, 436]
That kind of state involvement in foreign affairs and international relations – matters which the Constitution entrusts solely to the Federal Government – is not sanctioned by Clark v. Allen. Yet such forbidden state activity has infected each of the three provisions of 111.070, as applied by Oregon.”
Your case is old, Kent.
Comment by Jacques McKenzie — November 27, 2006 @ 3:21 pm
Old, Jacques? What was your first clue? Perhaps the “1947″ in parentheses?
Sure, Clark is old, but it is still good law. Zschernig distinguished Clark and specifically declined to overrule it. See 389 U.S., at 432. Clark is also on point that a state enforcing a neutral law is not engaging in foreign policy simply because the case involves a foreigner, which is what Daniel said in the course of calling me ignorant:
“The person in question in this case is a *foreign* national. By the very defination [sic] of the term foreign, we are no longer dealing with a issue that is domestic.”
Clark says that conclusion does not follow from that premise, and it has not been overruled.
Comment by Kent Scheidegger — November 27, 2006 @ 5:57 pm
Oh, I see. Fair enough response to Daniel.
But, ZSCHERNIG appears to put to rest the greater part of your argument. Clark may be good law, but it can’t be used for the argument batted down by ZSCHERNIG, which I helpfully quoted above. My problem with the Texas case is that it violates the argument summarized in the portion of ZSCHERNIG quoted above. So I think you know what I meant by old!
Comment by Jacques McKenzie — November 27, 2006 @ 7:15 pm
IMHO, Zschernig is entirely distinguishable and not at all inconsistent with anything I have said in this thread. But this has gone on long enough, so I’ll just leave it there.
Comment by Kent Scheidegger — November 27, 2006 @ 9:27 pm
Sounds like “Uncle” to me.
Comment by Jacques McKenzie — November 28, 2006 @ 12:15 pm
Not at all. It’s just that a thread has to end sometime, and that seemed to be a good place.
Since you insist, Zschernig is a case where state courts were administering domestic law in a way to punish and perhaps influence other countries regarding the way they ran their internal affairs. To that end, citizens of other countries were treated in a way less favorable than the state treated its own citizens. That is quite obviously distinguishable from a case where a state is administering its domestic law in the same way it would with its own citizens, and the question is the novel one of whether a president’s unilateral memorandum can have the same kind of preemptive effect that a treaty or executive agreement can.
Comment by Kent Scheidegger — November 28, 2006 @ 1:21 pm
Kent: and the question is the novel one of whether a president’s unilateral memorandum can have the same kind of preemptive effect that a treaty or executive agreement can.
Oh, stop, Kent.
The question isn’t whether the memo is an executive agreement; it’s whether a court intervening in the absence of an executive agreement impairs the President’s power to get one and whether it should ignore a memo explaining the President’s foreign policy, i.e., why he hasn’t gotten one just yet.
Do state courts set foreign policy for the nation? No, says, Zschernig. And “NO” cannot be distinguished away.
No means no, Kent! No means no!
Comment by Jacques McKenzie — November 29, 2006 @ 12:04 am
Your argument simply assumes that what the state court is doing here is “intervening” and “set[ting] foreign policy for the nation.” Zschernig does not answer that question for this case, because what the state court was doing there was quite different from what the state court is doing here. Yes, it is distinguishable.
Comment by Kent Scheidegger — November 29, 2006 @ 12:37 am
Yes, it is distinguishable.
One orange is distinguishable from another orange: but they’re both oranges.
I would argue that you are mischaracterizing the facts of the present case to create novel question where there is a simple one.
I would also say that the present case is as distinguishable from Clark v. Allen as it is from Zschernig, so distinguishing Zschernig gets you nowhere.
Comment by Jacques McKenzie — November 29, 2006 @ 12:59 pm