From SCOTUSBLOG:


The Supreme Court, deeply fascinated with its own role in an interconnected world legal order, spent extra time on Wednesday examining the question of how to say no to the President on a treaty matter and, if it does, to do so without harming the Chief Executive�s power to speak for the nation in the global community. It was apparent that, if the case of Medellin v. Texas (06-984) had come to the Court without presidential involvement, it would have been easy to decide � in fact, the issue in that context may already have been effectively decided last year. But President Bush put his authority at the very center of it, and heavy complications have followed. The Justices� keen interest in those complications led Chief Justice John G. Roberts, Jr., to let the scheduled one-hour hearing Wednesday run on for an added 20 minutes � an especially rare gesture.

With cross-currents of constitutional and international law flowing freely, what appeared to be a majority of the Justices looked askance at a Presidential memo in February 2005, directing nine U.S. states to give 51 Mexican nationals convicted of crimes in those states a new chance to test their rights under an international treaty, the Vienna Convention on Consular Relations. What was troubling those Justices the most, it seemed, was that the President had sought to make binding a ruling by the World Court that would otherwise not have controlling effect on states� ciminal procedures. That was worrisome for two reasons: it might intrude on the Court�s role to say what the legal meaning and effect of treaties is, and it might empower the World Court, in effect, to dictate the substance of American law.

This is not a Court (with a couple of exceptions among its members) that is genuinely fond of drawing meaning for American law from foreign sources. That skepticism found new expression in the Medellin case as several of the Justices looked at the World Court as a foreign entity that, through the President�s intervention, was intruding into domestic law � perhaps even at the expense of the Supreme Court�s power to say what the law is. Justice Antonin Scalia, for example, said he saw a constitutional problem with �giving an international body the authority to determine U.S. federal law. I am rather jealous of that authority. I don�t know on what basis we allow an international court to decide the content of American law.�

Justice Samuel A. Alito, Jr., said the effect of the Bush Administration�s defense of the presidential order that states obey a World Court ruling would be that �the President can take any treaty that is not self-executing and make it binding under federal law.� Solicitor General Paul D. Clement tried, without notable success, to deflect such suggestions. All that President Bush had done in the Mexican nationals� case, Clement contended, was to make a decision that, for foreign policy reasons, America would comply with the World Court decision to give the Mexicans another review of their cases in state court.

Donald F. Donovan, a New York City attorney representing Mexican national Jose Ernesto Medellin, sought to keep the case within a narrow focus. He argued that all that was at issue was a U.S. obligation under treaties it had signed and embraced to comply with a final ruling of the World Court on remedies for a violation of access to consular officers for accused aliens. President Bush had acted only to meet that obligation, Donovan argued in a refrain repeatedly stated. But he encountered a flurry of hypothetical reasons over broader implications, with the Chief Justice pursuing hypotheticals to test what power would be left to the Supreme Court if the World Court could be made the instrument for declaring American law. If the World Court�s judgment on the Mexican nationals� legal rights here were binding federal law inside the U.S., Roberts wondered, would the Justices have any authority to second-guess the content of that law? �We would have no authority to review the judgment itself?� he asked with notable skepticism.

Justice Anthony M. Kennedy also seem puzzzled whether the Supreme Court could interpret the scope of a World Court ruling if it were ambiguous in any significant way. And Kennedy twice raised concerns about whether the President could �displace the authority� of the Court to interpret judgments of the World Court. Both Kennedy and Roberts were told, in response, by Donovan that a court ruling to enforce the World Court judgment would by itself constitute the application of federal law � here, the federal law of carrying out an obligation undertaken by treaty. The World Court ruling itself, the attorney said, is federal law � binding on the states by virtue of the Supremacy Clause, and also binding because the President had concluded through his Article II power to it was in the nation�s interest to comply with the World Court judgment.

The hearing did highlight a difference between Medellin�s lawyer and Clement, even though they are on the same side. Clement stressed that the government did not support Medellin�s argument that, without the President�s action, the World Court decision would be binding on the state courts in the U.S. �The President�s role is critically important,� the Solicitor General argued. When Justice Kennedy asked about the effect had the President decided not to comply with the World Court decision, Clement responded: �We would be on the other side.� Clement added that �we don;t think this judgment is enforceable on its own terms.�

Two members of the Court who often talk of the value of looking to foreign law for guidance, Justices Stephen G. Breyer and Ruth Bader Ginsburg, were clearly the most willing on Wednesday to show support for the World Court�s authority and the duty of the U.S. to fulfill its promise of obeying World Court judgments in interpreting the Vienna Convention. Thus, they were the most energetic questioners of Texas� state Solicitor General, R. Ted Cruz.

Justice Breyer sought Cruz�s response to a simple �chain of logic,� going from the language of the Constitution making treaties �the law of the land,� the U.S. agreement to the Vienna Convention and its agreement to abide by World Court rulings applying that treaty, and then to the requirement of the World Court that states take full account of the Convention�s strictures. Cruz said that Texas did not dispute that treaties were the law of the land, but said that what was at stake here was the action of the President in seeking to make the World Court judgment binding on the states in contradiction to their own laws. The Convention, he said, is not a self-executing treaty, and the President cannot make it so on his own.

Justice Ginsburg repeatedly returned to the basic theme that the U.S. had promised to abide by the World Court�s application of the Vienna Convention. This country, she said, had �accepted the authority of this tribunal, and to be bound to follow its decisions.�

Among the Justices, only David H. Souter spent some time exploring whether the Court could avoid a decision that would reject the President�s authority to implement the World Court judgment by simply ruling, on its own, that the international tribunal�s decision on the Mexican nationals was binding. Questioning Cruz, for example, Souter wondered whether there was any �positive rule, in international or domestic law, which precludes this Court from being the implementing authority� of a World Court decision? The state�s lawyer replied that the Court was �the final authority to determine federal law,� but said that, if it were to do so in the Medellin case, it would have to overrule its ruling of a year ago in the case of Sanchez-Llamas v. Oregon finding that the Vienna Convention does not give foreign nationals a right to claim violation of their Convention rights if such claims are barred by state criminal procedures.

Medellin�s lawyer and the Justice Department take the view that the Sanchez-Llamas decision only dealt with an interpretation of the Convention�s meaning, not with an actual Court judgment in a specific case. Medellin contends, though, that the judgment is binding on the state on its own terms, under the Supremacy Clause, but the government takes the view that it is to be implemented because the President has said so.

The Court is expected to issue its final ruling on the case by late next spring.

What do think the SCt will do?

This case reminds me of Collin County's battle in Saldano-- DA's vs. AG.

JAS

From the "Don't Squat With Your Spurs On" cowboy phrase handbook:

"If you get to thinking you're a person of some influence, try orderin' someone else's dog around."

i think some law student in louisiana is probably writing a brief about pelicans right about now.

from the look of this report, i would imagine the court will side with Texas against the president (5-4 of course). kennedy may be willing to consider what's going on in other countries (like in roper), but i don't think he'll allow for this type of wholesale endorsement that could eviscerate the Court's ability to interpret the law affecting the U.S.

unless, of course, medellin suffers from mental issues.

P.S.-this was what he said at one point which may be where the court tries to go: "I think Medellin did receive all the hearing that he's entitled to under the judgment anyway," Kennedy said.

[This message was edited by David Newell on 10-11-07 at .]

You said SCOTUS, heh heh.

I guess we will know if you are right, David, if any of the judges predecease the opinion!

My guess is also 5-4 in favor of Tx., but not before we have heard a lot more about foreign law.

BTW, Good line Rob.

For a transcript of the full argument check out:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-984.pdf

After reading the transcript, I'll go out on a limb and change my guess to 6-3 or even 7-2!!

JAS

[This message was edited by JAS on 10-10-07 at .]

The consequences of surrendering authority to an international court or the executive branch are just too contrary to the history of US jurisprudence. What judge wants to be the one to "distinguish" Marbury v. Madison?

I don't have a dog in this specific fight but I am interested in what is this "world court" - is it elected, appointed - how do I get on it - do you have to be a lawyer - do you have to believe in democracy - what oath do you take - are they underage - do they smoke dope - did we pull their ass out of the horrors of WWII - I am paying taxes for it?

Everyone in the world, Fred, seems to have forgotten the heroic US efforts and massive sacrifices in American lives that saved the world in WWII. Everyone except us.

aren't they located in the hague? i think that answers at least one of fred's questions.

but, if you'd like to know more, press the more button:

more

[This message was edited by David Newell on 10-11-07 at .]

Does anybody have a logical explanation as to what the President was thinking in supporting Medellin's claim in this case?????? It seems that his action turned an easy win for the State into a crap shoot, and for what--that piece of s--t??? It seems the world gets crazier by the day. OK, I'm through with my rant.

I think this is my favorite media analysis of the relative merits of the two parties:

"But really, the best part of Medellin is that if you are a casual spectator attempting to pick out the "good guys," here's your choice: the state of Texas and its relentless quest to execute its people without regard to moral, international, or legal norms, versus the Bush administration and its claim to broad new executive authority to boss around state judges. It's like having to choose between being clawed to ribbons by a grizzly bear or gnawed to death by a killer whale."

You can always count on Slate.com.

While reading law in England over 20 years ago, I was appalled at the surrender of sovereignty by the European nations. Long may the USA remain independent!

JAS

My guess is that this case has broader implications besides just this one guy. The basic premises seems to be the "right" of someone who is arrested in a foreign country to have access to their embassy for help / assistance. The Pres. does not want to put traveling American citizens in a position whereby a country can lock them up without giving them access to the American embassy. This guy did not have acess to his embassy. Now whether or not that entites him to a "do over", I do not know the answer to that.

But the basic idea that foreign travelers should be able to get access to their embassy is a good one.

He was not denied the chance to contact his embassy. He even had several attorneys appointed to help him do that. He was not promptly told he had the right to contact the Mexican embassy, nor was he assisited in doing so even though he never asked. He had acess to a phone, had the ability to mail letters, had visitation rights with appointed counsel, and family, and priest, and social workers. Nevermind the fact he had been arrested in the US often in his past and had lived the majority of his life here.

It is easy to fall into the habit of repeating the facts as they are screamed at volume by those that would abolish the death penalty.

We should also remember that these fellows often lie to the police about their origins. I don't know whether Medellin did that or not, but others have, including one of ours. Dallas had one where they raised a big stink even though the guy had said many times he was born in the U.S.

Sometimes the the writing is on the wall. How useful it would be if we could predict all criminal cases.

JAS

The wall had been used for a writing surface.

But, you have to admit, Stevens was kind of a surprise.

Yep, I would not have called Stevens. More like Souter or Breyer.

JAS