Argument preview: Medellin v. Texas

Argument Preview

By Lyle Denniston

In Medellin v. Texas, the Supreme Court is taking a second look at the obligation – or lack of it — of American states to obey a judgment of the World Court on the legal rights of foreign nationals arrested and prosecuted for crimes in those states.

Background

The modern Supreme Court finds itself in a global village of law. That simple fact of transnational coexistence contributes to an intense struggle among the Justices over whether foreign sources of law should influence law in America – in particular, whether the meaning of the U.S. Constitution should be informed by notions of law that have found expression abroad. Within the Supreme Court, the controversy has arisen most acutely in constitutional decision-making on high-visibility issues such as the death penalty for juveniles and sexual privacy for homosexual adults. In Medellin v. Texas, the dispute recurs in a decidedly different environment: within a grand contest over Presidential power, separation of constitutional powers at the national level, states rights and federalism, treaties as “the law of the land” in the U.S., and the legal rights of some of the least visible people in American society – foreign nationals with few ties to the U.S. and few resources who commit crimes and thus put themselves into the U.S. criminal justice system, especially at the state level. Curiously, it also involves an effort by President Bush to vigorously champion Executive authority in enforcing domestically a treaty that he has otherwise chosen to treat as an unenforceable nullity inside the U.S.. And it raises a question of whether the Supreme Court has already settled the issues in this case in a ruling it issued in June 2006 (Sanchez-Llamas v. Oregon, 04-10566).

The treaty at issue is the Vienna Convention on Consular Relations, adopted in 1963 and now joined by 171 nations, including the United States; the U.S. was a prime architect of the treaty. A separate Optional Protocol, embraced by 46 of those 171 nations, requires governments to accept the role of the World Court (the International Court of Justice at The Hague) in deciding disputes under the Vienna Convention. President Bush withdrew the U.S. from the Optional Protocol as the Medellin case unfolded in U.S. courts, but wants it enforced in that case and those involving 50 other Mexican nationals who won a case in the World Court on their treaty rights.

Under the Convention’s Article 36, a foreign national who is detained by a government that consents to the treaty must be told without delay that he has a right to contact a diplomat – a consular officer — from his or her home country. “While the United States has vigorously insisted on strict compliance with [the Convention] when Americans have been detained overseas, compliance in the United States has been poor,” according to one of the filings in the Medellin case.

One foreign national who was never told of his rights of consular access until after he had been charged, tried, convicted and sentenced to death in Texas was Jose Ernesto Medellin. Now 33 years old, he was convicted in the strangling murder and gang rape of two teenage girls in Houston in June 1993. The government of Mexico, prompted in part by a World Court ruling in 2001 in another case involving denial of consular rights to foreign nationals in the U.S., filed a new case in the World Court on behalf of Medellin and 50 other Mexican nationals denied Convention rights. Mexico won a decision by that tribunal in 2004, a decision that declared again that a U.S. state cannot forbid a foreign national from asserting a consular access claim even though the claim had not been raised at trial or on appeal. The World Court said the United States government had a duty to review and reconsider the foreign nationals’ convictions and sentences.

Two months after the World Court ruling, the Fifth Circuit Court, in an already pending case, refused to allow Medellin to appeal a District Court’s dismissal of his habeas challenge that also was based on the Convention violation. The case then moved on to the Supreme Court, in the first of two appeals. In “Medellin I,” his lawyers asked the Court to rule that federal courts in the U.S. were bound by the World Court ruling, either as a matter of international law or as a way to achieve uniform enforcing of treaties.

A month before the Supreme Court was scheduled to hear oral argument in the case, The Bush Administration joined in the case as an amicus, urging the Court to rule that Medellin had no private right to seek enforcement of the Convention. Simultaneously with that filing in the Court, President Bush announced that the U.S. government would comply with the World Court decision, and directed state courts to reexamine the Convention claims of Medellin and the 50 other Mexican nationals. Relying on that presidential action, Medellin’s lawyers filed a new post-conviction challenge under state law in Texas courts. That maneuver, along with President Bush’s decision, led the Supreme Court in a 5-4 decision to dismiss Medellin’s appeal and allow the state habeas case to go forward, noting that the case could later come back to the Justices after the state courts had acted.

The Texas Court of Criminal Appeals issued its decision on Nov. 15, 2006. The state court found that the President did not have the constitutional authority to tell state courts to apply a decision of the World Court The state court also dismissed Medellin’s habeas petition, saying he had defaulted by failing to raise the issue at his trial. The U.S. government had participated in the case in state court to defend President Bush’s decision to have the World Court ruling obeyed in state courts.

Petition for Certiorari

Medellin’s new petition, filed on Jan. 16, 2007, again asked the Supreme Court to decide two questions. In “Medellin II,” the first question focused directly on whether the President had the authority to require states to obey the World Court ruling in order to satisfy U.S. treaty obligations. A second question again asked whether American courts – this time, state courts – were bound to obey the World Court ruling in the Mexican nationals’ case. This time, the second question was treated as a matter of federal supremacy under the Constitution, so the petition suggested that, even without the President’s action, state courts had to obey the international tribunal’s view of U.S. treaty obligations.

Once again, the Justice Department joined in the case as an amicus, urging the Court to grant review of Medellin’s new appeal. This time, the government supported Medellin’s claim – but only on the issue of Presidential authority. Absent the President’s intervention to enforce the World Court ruling, the Department argued, Medellin did not have a private right to enforce the Vienna Convention. It interpreted Medellin’s second question as including the question of private enforcement, although the question itself focused only on the duty of state courts to obey the World Court ruling under federal supremacy doctrine. While the Department disagreed with Medellin on its reading of his second question, it said it did not oppose review on that question, too, because it was one that the Court had agreed to hear in “Medellin I.” The government of Mexico also urged the Court to hear the case.

The Justices agreed on April 30, 2007, to grant review of both questions raised in the petition. Oral argument has been set for Wed., Oct. 10, 2007, at 10 a.m. – the only case scheduled for argument that day.

Merits Briefs

Medellin’s briefs on the merits provided a sturdy defense of Presidential power, arguing that President Bush actually had engaged in only a “modest exercise of his foreign affairs authority.” In deciding to “give effect” to the World Court judgment in the Mexican nationals’ case, it said, “the President entered no new international agreements, prescribed no new rules, established n new procedures, and undertook no new obligations. Instead, he merely confirmed that the United States would comply with international commitments already made by the constitutionally designated political actors, and would do so through the post-conviction review procedures already provided by state law.”

A significant early point in the brief is that the Supreme Court has not already decided the substance of “Medellin II” by its ruling in Sanchez-Llamas v.Oregon (decided June 28, 2006). There, the Court, dealing with the Vienna Convention claims of another Mexican national and a Honduran national, ruled by a 5-4 vote that states could apply their procedural default rules to claims of violations of the treaty – in other words, bar those claims in habeas if they had not been raised at the trial. The Court, in fact, said it had decided that issue in a summary ruling in 1998, Breard v. Greene. But, in discussing the World Court’s ruling in the case involving Medellin and others, the Court said only that the World Court’s interpretation of the Convention was not binding on American courts. It thus did not decide, according to Medellin’s merits brief, the separate question of whether U.S. courts are bound by a specific judgment issued by the World Court, as distinct from the reasoning of a World Court opinion. The brief contended: “Although this Court has held that the [World Court’s] reasoning has no binding precedential effect in future cases, it is undisputed that, by treaty, its judgments are binding in the particular cases they resolve.” Since treaties are the “supreme Law of the Land” under the Constitution, the obligation to obey the World Court judgment applies to Texas courts, according to the brief.

In defending Presidential power, the Medellin brief argued that President Bush was acting as the “zenith” of his constitutional authority, because he was acting with the support of Congress – the 1969 Senate ratification of the Vienna Convention. Moreover, it asserted that the President was exercising a power that is directly keyed to his constitutional authority in foreign affairs. “The President has done nothing more than determine that the United States will do what the elected representatives of the American people, by the treatymaking process prescribed by the Constitution, have already promised: to abide by a judgment of the [World Court]in a case to which the United States was a party.”

But, even if there were no support from Congress, the brief contended, the Supreme Court has previously recognized that the President has authority to resolve disputes with foreign powers. It was not necessary, it added, that the President do so in this instance through an executive agreement with Mexico – as the Texas state court said he would have to have done to overcome Texas criminal procedure law.

The state of Texas’ brief on the merits chose to treaty the case largely as one of “separation of powers.” The case, the brief said in its opening, “implicates every axis of the structural limitations on government: President vis-à-vis Congress, President vis-à-vis the Supreme Court, international law vis-à-vis domestic law, federal government vis-à-vis the States, and, with a Mobius twist, President vis-à-vis the state judiciary.”

In arguing that the President’s action is at the “lowest ebb,” not the highest tide, of Executive authority, Texas contended that the President had contradicted Congress by seeking to make the Vienna Convention enforceable not solely through diplomatic efforts not through domestic courts. The President also ran counter to Congress’ wishes, the brief said, because it operated on the assumption that the treaty created individual rights, not merely rights of governments vis-à-vis governments.

In arguing that the President intrudes on the power of the Courts, Texas relied upon the Sanchez-Llamas decision of 2006, interpreting that ruling as a rejection of any binding effect of World Court decisions in U.S. courts. Summoning up Marbury v. Madison, the state argued: “It is emphatically not the province of the President to say what federal treaty law is,” nor how the World Court ruling of the Vienna Convention should be interpreted.

In a fervent defense of states’ rights and federalism principles, Texas contended that President Bush’s action interfered directly with state sovereignty, by seeking to “expand the jurisdiction of the state courts, beyond what state law allows, and to commandeer state judges into service of the federal Executive. Our Federalism allows no such dictates.” Among other amici supporting Texas, 28 sister states join in arguing against the President’s action.

One of the more unusual amicus briefs was filed on behalf of a Texas couple, Randy and Sandra Ertman. They are the parents of Jennifer Ertman, who was one of the Houston teen-agers murdered in the gang crime for which Medellin was convicted and sentenced to death. In their brief, filed by the Criminal Justice Legal Foundation, they challenge Medellin on what their argument says is an “implicit third question” – whether Texas’ ban on repeated habeas challenges contradicts the World Court ruling. Medellin, it contended, had already had one opportunity to claim prejudice in his case from the Vienna Convention violation, and lost on that, so he is not entitled to make a second challenge. “Delaying the already long-overdue execution of this well-deserved sentence and of sentences in similar cases would be contrary to the rights of victims of crime and the law abiding public…,” the brief said.

The Justice Department’s amicus brief partially supporting Medellin attempted, as does the Medellin merits brief, to portray President Bush’s actions as minimal in scope. All that the Chief Executive has done, the government brief asserted, is to provide for “the enforcement of a judgment as to 51 specific individuals – a judgment with which the United States is obligated by treaty to comply. The law of judgments has long held that a domestic court may recognize a decision as binding, without adopting – indeed, while disagreeing with – its legal reasoning. The President’s action is of the same character.”

The Justice Department, like Medellin, invoked the concept that the President was using his highest level of power because he had Congress’ concurrence, implementing the obligations of a Senate-ratified treaty, and using his own inherent constitutional authority over foreign affairs. The President, it said, “is uniquely qualified to make the prompt and sensitive determinations involved” in foreign policy.

There is no conflict with the Sanchez-Llamas decision of 2006, the Department contended, because that was only an interpretation – albeit an authoritative one – of the Vienna Convention’s meaning and scope. There also was no “uindue” intrusion into matters reserve for the states, the Department argued, because the Constitution’s “Supremacy Clause” makes national government action binding on the states “when it acts under a valid treaty.” But, at most, the intrusion on state authority was “relatively modest,” it said, because it only requires states to take a new look at the Vienna Convention claims, and they are not commanded to reach a particular outcome.

Analysis

The Supreme Court’s record in Vienna Convention claims is not one that encourages foreign nationals charged with crimes in the U.S. to anticipate victory when going to Court to challenge a denial of consular access. Since a summary ruling in 1998 in Breard v. Greene, allowing states to enforce procedural default rules against post-trial Convention claims (a ruling that came before the World Court decisions that are now in dispute), the Court’s most significant action may well have been its ruling in the Sanchez-Llamas case on June 28, 2006, with the two new Justices taking part.

A clear five-Justice majority, led by Chief Justice John G. Roberts, Jr., and including new Justice Samuel A. Alito, Jr., took much of the force out of the Vienna Convention – absent diplomatic efforts on behalf of foreign nationals denied their consular rights, or absent a new World Court judgment on behalf of other foreign nationals in the future. While that decision left open the question of who could enforce actual World Court judgment, those five might be inclined to support Medellin’s claim now only if persuaded by the Bush Administration’s Executive authority argument. A narrow opinion, minimizing what the President has done and relying on the law of judgments, might well attract their support. However, pulling in the other direction for at least some if not all of those five are the energetic claims of a clear majority of the states about compromised sovereignty. (The others in the majority were Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.)

The other four Justices – Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens – are already on record, in the 2006 case, in favor of allowing foreign nationals to bring claims at trial or in state post-conviction challenges that their Convention rights were violated. So, even without addressing the question of Presidential authority to call for state court action under a World Court ruling, they would appear to favor Medellin’s right to bring a challenge. It is unclear to whom they might turn for a fifth vote for that outcome, if the states’ rights claim appeals to the other five.

Assuming, though, that the Court does allow Medellin’s case to proceed, on whatever rationale, a difficult question would be the definition of just what state courts are to do under the “review and reconsideration” that the World Court mandated and that the President has insisted they provide. Can such a definition be drawn narrowly enough that it would not appear to “commandeer” state courts into federal service in enforcing their criminal laws?