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.

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!

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.

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!

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.

“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.

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.

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.

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.

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.

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.