Texas Strikes Back in Medellin?

By Marty Lederman
on Mar 8, 2005 at 10:08 pm

I reported below that the Acting SG’s brief in No. 04-5928, Medellin v. Dretke, made the fairly remarkable announcement that the President had determined “that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of American (Avena), 2004 I.C.J. 128 (Mar. 31), by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.” In other words, the President has in effect ordered state courts to entertain the reopening of 51 cases — notwithstanding state procedural default rules. As the ASG put it: “In accordance with the President’s determination, petitioner can seek review and reconsideration of his Vienna Convention claim, without regard to state law doctrines of procedural default, by filing an appropriate action in state court for enforcement of the ICJ’s decision under principles of comity. State courts will then provide the review and reconsideration that the President has determined is an appropriate means to fulfill this nation’s treaty obligations.”

I wondered in that post what Texas’s response would be to this fairly remarkable assertion of Executive authority to command state courts to reopen cases. It now appears that Texas will not acquiesce in the President’s proposed remedy. (Thanks to Professor Carlos Vazquez for the heads-up.) According to this article in the Kansas City Star, “[o]n Tuesday, a spokesman for the Texas attorney general’s office indicated that the state would likely contest efforts by defense attorneys to schedule new hearings in the death penalty cases. ‘We respectfully believe the executive determination exceeds the constitutional bounds for federal authority,’ spokesman Jerry Strickland said in a statement. ‘The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States.'”

[UPDATE: Prof. Julian Ku suggests that Texas will lose this “legal version of the Alamo,” in that the Supreme Court will likely dismiss the appeal and Texas state courts will probably be compelled to comply with the President’s “determination.” I tend to agree with Prof. Ku, although perhaps that’s a function of the fact that I’m less sympathetic than he is to Texas’s federalism argument.

One small note: Prof. Ku writes that “Texas’ own brief (pp. 46-47) seems to concede that an executive order could require it to comply with the ICJ order.” I don’t think that’s quite right. Page 46 of the Texas brief speaks cryptically of an executive order — but doesn’t give any indication what form such an order would take. However, back on page 7, the brief provides greater specificity:

“It is beyond cavil that, as Medellín puts it, America should keep her word. But the choice of how to do so, and how to respond to alleged treaty violations, is left to the political branches of government. Mexico may pursue, pursuant to the U.N. Charter, remedies at the Security Council, or it may explore diplomatic options directly with the United States. The President and Congress could seek to pass legislation addressing the Avena decision, or the President could sign an Executive Order creating some form of executive review. All of these options are traditional remedies for violations of state-to-state treaties.”]