UPDATE 8:30 p.m. About an hour after the Court ruled, Texas executed Humberto Leal Garcia.
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Refusing to defer to President Obama’s view of a threat to U.S. foreign relations, the Supreme Court voted 5-4 late Thursday afternoon to allow Texas to execute a Mexican national whose international treaty rights were violated in his prosecution for murder. The Court majority dismissed as “free-ranging assertions” the President’s foreign policy arguments against the immediate execution of Humberto Leal Garcia, and added that the Obama Administration had not presented “a persuasive legal claim.” (The ruling and the dissent are here.)
This appeared to be a more serious rebuff of the President’s powers as the nation’s diplomat-in-chief than the one the Court had issued three years ago, in another Mexican national’s death penalty case, during the George W. Bush Administration. Then, the Court said a treaty that President Bush had invoked — the Vienna Convention — was not binding law in the U.S.  This time, however, the Court majority went further, and simply would not take the President’s word on “foreign policy consequences” expressed directly to the Court, were Leal Garcia to be put to death.
The four-page, unsigned opinion for the majority was skeptical throughout in its reaction to legal, diplomatic and legislature arguments that Obama Administration lawyers had laid before the Court, as direct representatives of the President. The majority commented tartly that it doubted that “it is ever appropriate” to put off a lower court ruling simply because the President is presently working to change the law to give domestic effect to a global treaty obligation, but has not yet won enactment.
If Congress really wanted to prevent executions in U.S. states  that supposedly had an impact on foreign policy concerns, the opinion said, such a law would have been “enacted by now” It has been seven years, it noted, since the World Court ruled that the U.S. was in violation of its obligations under the Vienna Convention, which requires the Convention countries to give a foreign national access to diplomatic advisers from his own country if he is arrested in a U.S. state for a crime.
Leal Garcia and 50 other Mexicans were directly involved in that World Court ruling. One of the others, Jose Ernesto Medellin, was executed by Texas in 2008 after the Supreme Court turned aside pleas to spare him under the Veinna Convention. In that case, President Bush had tried to order Texas not to carry out the execution, but the Court said only Congress could make the Convention binding law inside the U.S., and it had not done so at that time.
Obama Administration lawyers, intervening in Leal Garcia’s case to ask for a delay to give Congress time to consider a just-introduced version of legislation to make the Convention binding U.S. law, had contended that the situation had changed since the Medellin case in 2008. This time, the government brief said, the Executive Branch had been directly involved in shaping the proposed legislation, and was working with the chairman of the Senate Judiciary Committee to get the bill starting through Congress.
That argument made no difference to the Court’s majority. Addressing the claims of adverse foreign policy consequences if the U.S. committed another violation of the Convention, the main opinion commented: “Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an ‘appeal of the President….’ ”
The majority noted that the Administration, while seeking a delay of Leal Garcia’s scheduled execution, was not supporting his claim that he suffered prejudice in his murder case from a Vienna Convention violation. The majority said it would not follow the government’s suggestion for a delay when officials could not even bring themselves to argue that he had any chance of overturning his conviction because of that violation. It noted that a lower court had found that any treaty violation would have been “harmless” to Leal Garcia himself.
The plea to spare Leal Garcia was submitted to Justice Antonin Scalia, and he referred it for action to the full Court, following the usual procedure in execution-delay cases. Joining Scalia in the majority, though not named in the opinion, were Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Clarence Thomas.
Justice Stephen G. Breyer, writing for the four dissenters, argued that the Court majority was wrong in three respects: It “ignores the appeal of the President in a matter related to foreign affairs, it substitutes is own views about the likelihood of congressional action for the views of Executive Branch officials who have consulted with members of Congress, and it denies the request by four members of the Court to delay the execution until the Court can discuss the matter at “Conference in September.”
The dissenters argued that the situation was significantly different now from what it had been when the Court turned aside the plea to delay Jose Medellin’s execution, which was in fact carried out in August 2008.
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