UPDATE 2: 6:05 PM: Texas’s brief opposing Supreme Court review can now be found here. The post below now includes some discussion of the arguments Texas makes.
UPDATE: 2:45 PM: The Solicitor General’s amicus brief discussed in this post can now be found here.
The Bush Administration, continuing its sturdy defense of presidential powers, has urged the Supreme Court to rule that President Bush had the authority to direct state courts to obey a decision of the World Court bearing on state criminal prosecutions. The state of Texas disputed that plea in urging the Court not to hear again a case that was before the Justices in 2005, but did not produce a ruling at that time.
In an amicus filing in the case of Medellin v. Texas (06-984), the government called for reversal of a Texas state court ruling that Bush did not have the power to ensure that state courts complied with the international tribunal’s decision on the rights of foreign nationals arrested and prosecuted within the U.S. for crimes here. The state argued in response that the case is moot because Medellin has had access to the courts in Texas to challenge his conviction, and that is all that the World Court ruling required. While Texas challenges the Buish Administration’s assertion of executive power, it suggests that that question, too, is moot.
The Vienna Convention on Consular Relations gives such foreign nationals a right to meet with a diplomatic officer from his or her home country when arrested in another country. The World Court (the International Court of Justice at The Hague) ruled that the U.S. government must take steps to assure that 51 Mexican nationals Iincluding Medellin) who were prosecuted in the U.S. had that right, despite state court rules that barred them from relying upon the Convention in challenging their convictions.
The government’s brief was filed last Thursday but has just now become publicly available. Similarly, the state’s brief in opposition, filed last week, is now publicly available.
The government supports the appeal of Jose Ernesto Medellin, a Mexican national who was convicted of a double rape and murder in Houston in 1993. Medellin claims that his consular access rights were violated, but he has been denied a chance to press that claim, both by the Fifth Circuit Court and by Texas’ highest criminal court. In the most recent decision, last Nov. 15, the Texas state court found he had failed to raise that issue properly as his case unfolded in state court. Medellin’s appeal to the Justices was filed on January 16.
Medellin’s appeal is also supported by the Mexican government and by a group of law professors who are experts on World Court matters.
The case has not yet been scheduled for a Conference of the Justices. It is expected to go to the Justices sometime in April, after Medellin’s counsel has filed a reply.
While the government brief stressed that President Bush did not agree with the World Court’s ruling (and noted that he has since withdrawn the U.S. from the protocol that gave the World Court authority to apply the Vienna Convention), the brief argued that the Texas ruling will undermine the President’s authority to determine “how the United States will comply with its treaty obligations.”
The Medellin case had been before the Supreme Court in 2005, when the Justices agreed to review and heard argument on the enforceability of the World Court decision. But, after argument, the Court dismissed the case as “improvidently granted,” partly because Medellin’s lawyers had then recently filed a state court challenge to his conviction based on a violation of the Convention. That case went forward in Texas courts, resulting in the ruling at issue in his new appeal.
In defending presidential powers, the new brief by Solicitor General Paul D. Clement argued that the state court decision “decided fundamental questions of federal law relating to the authority of the President to bring the United States into compliance with its treaty obligations.” Moreover, ti added, the ruling “set a course that, if not reversed, will place the United States in breach of its international law obligation to comply with the [World Court] decision, leave unresolved the dispute between Mexico and the United States over the treatment of [Medellin], and frustrate the President’s judgment that foreign policy interests are best served by giving effect to that decision.”
Citing the famous concurrence opinion of Justice Robert H. Jackson in the 1952 ruling in Youngstown Sheet & Tube v. Sawyer, Clement argued that the President’s powers were at the maximum when he was acted under authority recognized by Congress. In this instance, the Solicitor General said, the President’s authority relies upon two treaties — the protocol that gave the World Court the authority to implement the Vienna Convention, plus the United Nations Charter. The UN Charter requires signatory nations like the U.S. to comply with World Court decisions when the nation is a party in a case decided by that tribunal, Clement noted.
“Because the President is uniquely positioned both to evaluate and resolve sensitive foreign policy issues and to act with dispatch,” the brief contended, “the Optional Protocol and the U.N. Charter are most sensibly read to entrust the President with the responsibility of deciding how to respond to an ICJ decision.”
In addition, the brief noted that Congress had “expressly authorized the President to direct all functions connected with the United States’ participation in the United Nations.”
While some of the Texas judges had argued that the President’s attempt to get the states to carry out the World Court decision would be deeply intrusive in state criminal proceedings, Clement countered that the intrusion is no greater than necessary to see that the World Court ruling is obeyed to the extent it requires consideration of the Vienna Convention claims, without dictating how the state court decides the underlying case. “Where, as here, the President acts pursuant to his authority under treaties of the United States, principles of federalism do not stand as an obstacle. To the contrary, federal law is supreme, and state law must give way.”
While supporting Medellin on implementation of the World Court ruling, the government brief did not support his separate claim that the Vienna Convention is open to private enforcement. But Clement indicated that the government did not oppose review of that issue, too.
Texas, in opposing Supreme Court review, contended that President Bush’s “memorandum” demanding that the states comply with the World Court ruling is beyond presidential authority as spelled out in the Constitution. “The President’s Article II powers are limited to executing, not creating, the law.” Making its own argument out of the Court’s 1952 Youngstown Sheet decision, the state suggested that the President had attempted to use unilateral authority.
The claim of Executive power made by Medellin’s lawyers (and seconded by the government’s brief), the state added, is an argument for “a hypothetically limitless executive power to create law based on unilateral decisions concerning the foreign affairs interests of the United States. But no enumerated power in Article II allows the President to order a state to disregard its own habeas corpus statute and review a claim based on the decision of a foreign tribunal that this Court has determined has no binding effect on domestic courts.”
The latter point, Texas argued, was settled in the Court’s decision last Term in Sanchez-Llamas v. Oregon. In that ruling, the state said, “the Court determined that decisions of the ICJ are not binding on American courts. Medellin’s request that the Court revisit an issue decided last Term is without merit.”
In the state’s argument on the mootness question, it contends that Medellin’s first post-conviction challenge, rejected by state courts, was a sufficient opportunity under the World Court decision that the U.S. must “give effect” to its ruling.
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