State's case against Bush hits high court
12:00 AM CDT on Sunday, September 30, 2007

WASHINGTON � It is the official, considered position of the state of Texas that President Bush is a constitutionally ignorant power-grabber.

An unusual case that the Supreme Court will hear as it begins its new term features Texas accusing its former chief executive of overstepping his office, by ordering Texas judges to comply with an International Court of Justice ruling involving a condemned killer from Mexico.

"It is, in my judgment, a breathtaking order," the state's chief appeals lawyer, Solicitor General Ted Cruz, said a few days ago as he previewed his arguments for the Federalist Society, a conservative legal group. "This president's exercise of this power is egregiously beyond the bounds of presidential authority."

It's an extraordinary confrontation, not just because Mr. Bush used to live in the Governor's Mansion but because his chief accuser helped put him into the White House. Mr. Cruz served as domestic policy adviser to the Bush-Cheney campaign, was a key player during the Florida recount in 2000, coordinated hiring for the Justice Department and served as an associate deputy attorney general.

"We find ourselves in an unusual position. Texas is not regularly litigating against the United States," he said.

In 1994, Jos� Medell�n was sentenced to die for the rape and murder of two teenage girls during a gang initiation in Houston. Four years after the conviction, he raised a new legal issue: Under Article 36 of the 1963 Vienna Convention, police should have apprised him of his right to consult with consular officials from his native Mexico.

Mexico went to the International Court of Justice, which in March 2004 ruled that U.S. courts should review the Medell�n case and 50 other tainted convictions. But the U.S. appeals court in New Orleans rejected Mr. Medell�n's appeal because he hadn't raised the issue in his trial. The Supreme Court also refused to overturn his conviction.

In February 2005, Mr. Bush announced he would order state courts to comply with the International Court ruling.

The problem is that the Constitution gives U.S. presidents no direct authority over courts, state or federal.

In November, the Texas Court of Criminal Appeals found the order unprecedented and baseless. The Supreme Court will take up the case again on Oct. 10. U.S. Solicitor General Paul Clement, a Bush appointee, will argue that state courts can't be allowed to veto treaty obligations and that the president has inherent authority stemming from his unique foreign policy role.

Mr. Cruz disagrees. "It is emphatically not the province of the president to say what the law is," he said.

It is so emphatically and fundamentally beyond executive power, the argument goes, that Texas bases its legal case in part on the 1803 landmark ruling that settled once and for all it's the Supreme Court � not Congress or the president � that gets final say on interpreting the law.

"It's not often in litigating a case that you actually get to cite as a major authority Marbury vs. Madison," Mr. Cruz said.

Twenty-eight states, two former U.S. attorneys general, three former U.S. solicitors general and top legal theorists, liberal and conservative, side with Texas. California Attorney General Jerry Brown and Reagan Attorney General Ed Meese find common ground, Mr. Cruz said, because of the "enormous mischief" presidents could wreak if the Bush assertion stands.

Imagine, he argued, what President Dick Cheney might do, or President Hillary Rodham Clinton � a boogeyman for each side � if they were free to "flick state laws off the books on a simple assertion of international comity."

Mr. Cheney might scrap California emissions laws that undermine Kyoto treaty negotiations and put a stop to punitive damage awards that hurt multinational corporations.

Mrs. Clinton might set aside bans on gay marriage and adoption and halt capital punishment.

"A president could say it would further international comity 'big time' � that's a technical legal term, 'big time' � if we set aside the death penalty laws," Mr. Cruz said. "Those scenarios are downright scary. That is not the legitimate constitutional role of the president."

Is the pointed, insightful, gleeful comment to this post that I sent in yesterday?

It must've been a whopper; sorry someone got to it before I did.

Make me a moderator. Please.

Handle whoppers very well, which is why I made especially sure not to send one in.

All I did was point out how droll this situation is. Maybe the Administrator did not understand "droll." Here we have a suit by the Federalist Society challenging an exercise by the Bush Administration of the "unitary President" theory which has been promoted by --- wait for it --- members of the Federalist Society.

This suit sets up a great challenge for the Supreme Court, which has more than enough Federalist Society jurists on it to make us all cringe in fear. If SOTUS affirms the President, then Mr. Solicitor General Ted Cruz will surely curl up and whimper, what with the possibility of Democratic Presidents, as he points out, in office for the next few years. If the SOTUS does not affirm the President, then SOTUS itself will have some difficulty, I would think, in sustaining some of the President's more controversial exercises of the "unitary President" theory. It will be fun to watch.

For a good summary of the Federalist Society's purpose and a list of some of its members, click here.

A narrow application of the Federalist Society's principles to the Medellin case should favor the decision of the Texas Court of Criminal Appeals. Nothing could be more fundamental to the preservation of state independence and the rights of a state's citizens than the recognition of the supremacy of the judiciary in that state over an executive branch declaration.

Rather than "cringe", Texans should take comfort that the SCOTUS has members that will make a decision on the basis of the law, rather than their feelings for the President or a particular political party.