Bush, Texas Court Tussle
Justices to Decide If State Must Heed International Order
Justices to Decide If State Must Heed International Order
By JESS BRAVIN October 11, 2007; Page A8
WASHINGTON -- The Supreme Court heard arguments yesterday about whether President Bush can order state courts to obey a ruling from the International Court of Justice, a test of executive power that could affect the president's power to conduct foreign affairs.
Since the terrorist attacks of Sept. 11, 2001, the White House has repeatedly claimed authority to act without approval from Congress or courts, especially in areas of national security such as wiretapping and terrorism trials. Congress and the Supreme Court have reined in some of these moves.
• What's Happening: The Supreme Court heard arguments on a case that tests the president's foreign-affairs power.
• The Question: Can the president, following the decision of a U.N. court, force Texas to hold an additional hearing before executing a Mexican national?
• What's Next: A decision is expected by June.
The question now facing the court is whether the president, following the decision of the United Nations court, can force Texas to hold additional hearings before executing a Mexican national convicted of the rape and murder of two girls in 1993.
If a decision goes the government's way, the case could further concentrate power in the hands of the executive. "There's a potential, at least, if the court gives the solicitor general everything he asks for, that the president can rewrite state law to conform to his view of the best foreign policy," said Michael Ramsey, a law professor at the University of San Diego.
At issue is the 1963 Vienna Convention on Consular Relations, which requires that a home nation be notified when one of its citizens is arrested abroad. It also states that the arrested traveler should be advised he can contact his consul for assistance. The U.S. ratified an annex giving the international court "compulsory jurisdiction" to decide disputes over the treaty.
The State Department insists foreign governments follow the treaty when they detain Americans, but local authorities in the U.S. have a spotty record of compliance, leading to complaints against Washington at the International Court of Justice. In 2004, The Hague ordered the U.S. "to provide, by means of its own choosing, review and reconsideration of the convictions and sentences" of 51 Mexicans on death row, to determine if they had been prejudiced by the lack of consular assistance.
The ruling set off a debate within the Bush administration. It initially concluded the ruling was unenforceable. But with the U.S. under criticism abroad for its perceived disregard of international obligations, Secretary of State Condoleezza Rice persuaded the president to reverse course, officials said. In February 2005, he issued a memorandum directing state courts to comply with the ruling -- while simultaneously withdrawing from the agreement to let The Hague decide any future such cases.
Texas accused the president of exceeding his authority, and the state's Court of Criminal Appeals agreed. The resulting Supreme Court case pits Texas, backed by 28 other states, against its former governor, uncomfortably aligned with condemned inmate Jose Ernesto Medellin, a Houston gang member who grew up in the U.S. The European Union and dozens of other foreign governments filed friend-of-the-court briefs siding with the Bush administration.
On the right, Chief Justice John Roberts and Justice Antonin Scalia could barely contain their disdain for Mr. Medellin's position: that the international court compelled Texas to act. "Are you telling me that the ICJ judgment empowers either federal or state courts to do things which their laws do not permit them to do?" asked Justice Scalia. Donald Donovan, the attorney representing Mr. Medellin, struggled to find words suggesting that the world court's order already was authorized by the U.S.
Liberal Justices Ruth Bader Ginsburg and Stephen Breyer, meanwhile, said the matter wasn't so complicated. "As I read the Constitution, it says 'all treaties made...under the authority of the United States shall be the supreme law of the land, and the judges in every state' -- I guess it means including Texas -- 'shall be bound thereby,'" Justice Breyer said.
The case may come down to the opinion of Justice Anthony Kennedy, who often strays from his conservative brethren to embrace the significance of international law. Justice Kennedy's questions didn't indicate full agreement with either side. A decision is expected by June.
Write to Jess Bravin at jess.bravin@wsj.com
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