Are the states “puppets of a ventriloquist President”?

By Lyle Denniston
on Mar 9, 2005 at 10:39 pm

The Bush Administration, deeply in the habit of claiming unchecked presidential authority to wage the war on terrorism, is transplanting that notion into at least one branch of domestic law. It is asserting unlimited presidential authority to direct state courts how to conduct their own criminal proceedings, at least when the president thinks that such a command would serve the nation’s foreign policy interests. It is an argument as sweeping in its scope as anything claimed by a “wartime” president, and there is at least a fair chance if will be met with considerable skepticism at the Supreme Court, just as the war powers claims have.

In one of the news stories linked below, discussing the case of Medellin v. Dretke, now at the Court, an International Herald Tribune reporter declares, without qualification: “The president’s constitutional authority allows him to order state courts, even those that found that defendants had failed to raise their treaty rights in proper or timely fashion, to grant review.” That, of course, is precisely what the Administration has claimed in its amicus filing in Medellin at the end of last month, and has backed up the claim with an order signed by President Bush commanding state courts to “give effect to the decision” of the World Court about the treaty rights of 51 Mexican nationals now in state prisons in the U.S.. At this stage, though, this represents only a bold claim, not something that appears to be well founded in past rulings of the Court. (Blog colleague Marty Lederman has been discussing this claim at length, in this and other forums, stating his own views.)

Although the claim has been greeted in some academic circles as something the Court very likely will accept, it may be a hard argument to sell to a Court’s five-Justice majority that has made a singular reputation of shielding states from being treated as mere “puppets” of the national government. That is a majority that, in a 1997 decision (Printz v. U.S.), embraced the idea that the states could not be made “puppets of a ventriloquist Congress.” It may be doubtful that it would be more likely to allow them to be made “puppets of a ventriloquist President.”

Although the Court may dispose of the Medellin case this Term without ruling on this basic constitutional question, the predictable reality is that, if the states do not do as President Bush has ordered (and Texas already has announced it will resist), the issue very likely would return and would have to be confronted. The Bush Administration has suggested that the Court deny any relief now to Jose Ernesto Medellin, the Mexican national who brought the pending case claiming that the state of Texas violated his treaty right to consult with a representative of his home government after he was arrested on murder charges in Texas – treaty rights that the World Court has twice ruled were violated in the United States. If the Supreme Court goes along with the Administration on this preliminary point, the President would then press the courts of Texas and other states holding the 51 Mexican nationals to give them new hearings on their treaty rights – even if their cases are over under state law.

The core claim the Administration is making is based on an attempt to expand four prior rulings upholding presidential authority to enter into executive agreements into an endorsement of his power – acting alone – to “manage foreign affairs,” without any authorization by Congress and without any executive agreement with another nation. Those four rulings had to do with the power to make deals internationally to settle claims against other foreign governments, or foreign corporations – areas in which the Court found the president had very broad powers.

The Administration is relying heavily upon a 2003 decision by the Court, in American Insurance Association v. Garamendi, nullifying a California law that sought to help victims of the Nazi Holocaust press their claims against German companies. That state law, the Court found, interfered directly with international agreements the President had made. But, significantly, the Court stressed that the agreements were the result of “longstanding practice.” And, perhaps of more importance in this context, the Court found that the state of California had only a “weak” interest in regulating overseas insurance policies, as compared to matters of “traditional state” concern.

By contrast, in the Mexican nationals case, there is no executive agreement; the President is moving on his own claimed authority in foreign policy matters to direct the states to follow the World Court ruling. There is no “longstanding practice” of presidential commands to state criminal courts. And, in this instance, the president is flexing his foreign policy powers in an area that is at the foundation of traditional state autonomy – the states’ power to fashion their own laws of criminal responsibility within their borders, and to enforce those laws in processes of their own choosing. It is hardly surprising, then, that states would resist this presidential command, and would do so believing that they might well have a Court majority on their side.

When the Printz case was before the Court in 1997, the Justice Department at that time defended Congress’ power to direct state and local officials to carry out a federal policy, and made this assertion: “The constitutional line is crossed only when Congress compels the states to make law in their sovereign capacities.” While the Court rejected that assertion, it lingers as a statement by the Executive Branch itself that the federal government may go too far when it coerces the states in “their sovereign capacities.”

The states very likely will interpret as a command to make new law a presidential directive to reopen closed cases involving state prisoners convicted under state laws, grant new hearings to the prisoners, and apply a World Court ruling to which the states were not parties. Under the Bush memorandum of February 28, prompted by the Medellin case, the states are not being commanded to obey an existing federal law passed by Congress, but rather a presidential directive that “state courts give effect” to a non-binding World Court judgment by providing “judicial review and reconsideration” of state prisoners’ treaty claims based on that judgment.