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A sharp debate on presidential power

(This is another in a continuing series of reports on the aftermath of Supreme Court rulings — in this case, a decision last May not to decide. That was the outcome in the case of Medellin v. Dretke. The case, though, seems sure to return to the Justices as a major constitutional controversy over Executive power.)

One of Texas’ two highest state courts, the Court of Criminal Appeals, is wading through weighty arguments on an issue of fundamental importance to the Presidency: the Chief Executive’s authority to order states to obey an international court’s ruling based on a global treaty signed by 166 nations. The Bush Administration, faced with a fundamental challenge to a sweeping claim of constitutional authority in the field of foreign affairs, has fought back with an aggressive defense of that authority. It is now up to the Texas court to resolve that dispute, but probably only as a preliminary to a return to the Supreme Court.

Two weeks ago, in a rare scene in a state criminal case in state court, a deputy U.S. Solicitor General, Michael R. Dreeben, took part in a 75-minute hearing before the Court of Criminal Appeals in Austin in Ex parte Jose Ernesto Medellin (docket AP-75,207), along with attorneys for that death row inmate and for the state of Texas. Dreeben was there primarily to make the case that state courts have no choice but to obey the President’s command that Medellin get a new hearing in his murder case, even though Texas’ court rules expressly forbid it. (An account of the oral argument, published in Texas Lawyer, is reprinted here.)

Medellin, a Mexican national, is awaiting execution for his role in the gang rape and murder of two girls in Houston 12 years ago. As a citizen of another nation, he was entitled by an international treaty, the Vienna Convention on Consular Relations, to meet with a representative of his home country government after he was arrested. He never had such an encounter before being convicted and sentenced to death.

He was one of 51 Mexican nationals who took their claim of Vienna Convention violations to the World Court in The Hague, and won. The Mexicans, that Court said, are entitled to a review of the denial of access to a Mexican consular officer, to see if their rights were prejudiced. President Bush, in a now-celebrated “memorandum” last February, sided with the World Court decision and ordered Texas courts to provide that hearing, in the face of a state procedural bar. No American court has ever determined whether the President has that authority.

Medellin now seeks to rely both on the World Court ruling, and on the Bush memorandum.

The presence of the U.S. government in his case is a rarity. But so is the impressive array of other participants: the European Union, Mexico and 12 other nations, a host of former U.S. officials and diplomats, including ex-Secretary of State Madeleine K. Albright, and dueling teams of international law experts.

The state of Texas, with sturdy support from four other U.S. states, is raising alarms about the threat to the states’ control over their own criminal justice systems. “The Supreme Court,” Texas argued in its brief, “has never recognized that the President’s ‘independent authority to act’ in foreign affairs allows for a unilateral power to preempt state law, based on a unilateral assertion that the pre-emption serves the United States’ foreign-policy interests…” If this memorandum controls, the state said, any state law that might be linked to foreign policy — such as a state’s enforcement of its death penalty — would be at risk of being scuttled.

Texas has suggested a way out of the constitutional problem it sees, urging the state court to rule that the Bush memorandum is not binding at all. That memo, the state said, lacks any mandatory language and creates no legal obligations or rule; it was not even sent to the state courts, but transmitted to the U.S. attorney general. The memo, it added, “is best considered as a request.”

The Bush Administration is conceding nothing about the memo’s force. “The President,” its brief argued, “has determined that the United States will discharge its international obligations under [the World Court ruling] by providing review and reconsideration in state courts.” What the President has opted to do here, the government contends, is now “the supreme law of the land,” and any court rule in Texas standing in the way of a new hearing under the World Court decision “must give way.” Calling the Bush order a “limited intrusion into state practice,” the government said, it is necessary to prevent the frustration of “federal executive authority.” The memo is not a request, but a requirement, it contended.

Those arguments are countered by the four other states supporting Texas’ challenge to Bush. They told the state court: “If the President’s memorandum to the Attorney General were an attempt by the President to order this court to disregard Texas’s habeas statute, it would be ineffective, because the President lacks power to give such an order….The President has no power to impose obligations on the state courts or to override their rules of procedure.”

Those other states — Alabama, Montana, Nevada and New Mexico — suggest that the state court should avoid the serious constitutional issues that they say would arise in finding the memo to be binding. “It is unlikely, to put it mildly, that President Bush intended his two-sentence memorandum to invite a judicial inquiry into such basic questiosn of constitutional structure comcerning the extent of the President’s foreign affairs power and the structure of state judicial sovereignty.”

The government’s position is strongly supported by the former high officials and ex-diplomats, among others. Their attorneys bluntly declared in a brief: “When treaties are at issue, the states disappear and the President and Senate act, in the words of the Supremacy Clause, with the sole ‘Authority of the United States.'”

The state court has no timetable for deciding the case.

(The briefs filed in the Texas court by Medellin and amici supporting him can be found on the website of the Debevoise & Plimpton law firm, under Representation Detail, at the end of an August 8, 2005, entry that also includes the filings in the Supreme Court when the case was there last Term. The briefs of the state of Texas and its amici may be available from the state attorney general’s office, and the Bush Administration’s brief from the Justice Department.)