Texas court rebuffs President on treaty powers
on Nov 15, 2006 at 1:11 pm
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.
