Texas disputes presidential power
on Mar 15, 2005 at 5:20 pm
The state of Texas sought on Tuesday to cast doubt on President Bush’s authority to require state courts to give 51 Mexican nationals a new hearing allowing them to use an international treaty to challenge their criminal convictions. Urging the Supreme Court not to delay its review of a pending case filed by one of those Mexican citizens, Jose Ernesto Medellin, the state told the Justices that the claimed presidential authority “is far from clear” and is an “extraordinary” assertion of power.
The Court is scheduled to hear the case of Medellin v. Dretke (docket 04-5928) on Monday, March 28. But the case has been buffeted by significant new developments, including President Bush’s direct intervention, leading lawyers for Jose Medellin to formally ask the Court to put the case on hold while he attempts a new legal maneuver in state court in Texas. That is the request that Texas’ solicitor general, Ted Cruz, opposed in Tuesday’s filing. There is no reason to stay the case at this point, Cruz argued. The pending case can be decided independently of any subsequent challenges that Medellin may try to mount, the state said.
It is possible the Court will act on these new developments at its private Conference on Friday, or at least at the Conference on March 25, in advance of the scheduled hearing. (UPDATE March 16: The Court has scheduled the motion for stay for consideration at the Conference this Friday, March 18.)
Medellin’s appeal involves an attempt to challenge the failure of Texas officials to give him access to a consular officer from his country when he was arrested, tried and convicted of murder. He is seeking, in part, to rely on a World Court decision that his rights — and the rights of 50 other Mexican nationals — under the Vienna Convention on Consular Rights were violated.
On February 28, when the Bush Administration filed a brief as an amicus, Acting Solicitor General Paul D. Clement revealed that the President had decided that efforts should be made to “give effect” to the World Court decision, but only in the specific cases of the 51 Mexicans directly involved in that case. (Since that filing, the U.S. has withdrawn from an international agreement that allows the World Court to decide Vienna Convention cases.)
The President, Clement told the Court, had decided that state courts, in Texas and other states holding the Mexicans, should give them a new hearing to weigh the effect, if any, of the denial of their consular rights. That led Medellin’s lawyer to move for a stay, until he could try to take advantage of the President’s “determination.”
But, in Texas’ response, state solicitor Cruz said the stay request “is predicated entirely on a not-yet-filed successive state habeas application that [Medellin] intends to file in light of the February 28, 2005, presidential determination” concerning the World Court decision.
Cruz added: “Whether the President has authority to issue such a broad ‘determination’ is far from clear. Indeed, the assertion that a two-paragraph memorandum to the Attorney General — which the United States concedes is not required by any federal treaty or statute — by itself constitutes a ‘Law of the United States’ under the Supremacy Clause or otherwise is somehow sufficiently authoritative to preempt longstanding state criminal laws of general applicability is utterly unprecedented.”
In a footnote, Texas says that none of the cases relied upon by the Administration to support “the asserted preemptive force of the presidential determination concerns state criminal laws of general applicability. Rather, each addressed state legislation expressly designed to impinge on foreign affairs….The fact that a state statute merely affects foreign nationals or interests, in and of itself, is not sufficient to find preemption by the political branches to facilitate foreign relations. And, here, the claimed authority is all the more extraordinary in that it commandeers state courts and directs them to set aside state criminal statutes in deference (in the interest of comity) to [a World Court] decision that the Executive has simultaneously recognized misinterprets U.S. treaty obligations.”
Still, Cruz went on to argue, “those novel questions of presidential authority are not presently before this Court.” The Justices, he contended, could go ahead and decide whether Medellin had any right to bring his federal habeas challenge under the Vienna Convention. The questions, he conceded, “may ultimately return to this Court,” but he said the present case is not the means to do so.
Although some commentators have suggested that the brief the state of Texas filed earlier on the merits of the pending case indicated that the President might have power to act to protect the Mexican nationals’ interests, the state’s new filing said in a footnote that its suggestion was intended to apply “only with respect to review efforts within the Executive Branch.” If the President acted solely within the powers of that Branch, that would be constitutional, the new filing said.
The federal government has so far filed nothing at the Court regarding the stay request in the case. (The U.S. is not a party in the case and therefore ordinarily would not respond to a motion to stay without an inivitation from the Court.) When Clement notified the Court of the presidential action, he simply asked that this information be passed along to the Justices, with no suggestion as to what they should do with it. The government does oppose any relief for Medellin in the pending case. The petitioner’s reply brief on the merits is due on Monday.
