In a twist, high court case sets Bush against Texas

A Mexican national's death sentence will have Supreme Court justices sorting out US treaty obligations, federal vs. state powers, and World Court rulings.

from the October 10, 2007 edition

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Lawyers for Medellin say the president acted well within his powers.

"When a nation enters into a treaty, it undertakes an international obligation that binds all of its organs (executive, legislative, and judicial) and all its constituent jurisdictions (state and federal)," Donald Donovan writes in his brief to the court on behalf of Medellin.

"By binding itself to comply with a judgment of the ICJ in a case to which it was a party, the United States bound all the states, including Texas, and all its judicial organs, including the Texas courts," Mr. Donovan writes.

Texas Solicitor General R. Ted Cruz has a different view. "This is a separation of powers case," he says in his brief. "It implicates every axis of the structural limitations on government."

Mr. Cruz adds, "The presidential memorandum [ordering the rehearing], transgresses the authority of Congress, of the judiciary, and of the states."

Medellin v. Texas represents a clash between the faithful enforcement of an international treaty by the president and the faithful enforcement of Texas state law by Texas state judges. Under the current set of facts there is no compromise.

One must yield to the other.

The ICJ requires the Texas courts to take an extra step – and hold an extra hearing – to determine whether the treaty violation undercut the fairness of Medellin's trial. Texas law says that once certain issues are resolved in a criminal case, they shall not be reargued.

Solicitor General Paul Clement agrees with a portion of the Texas argument – that the treaty grants no individual power to Medellin to enforce the treaty. But Mr. Clement goes on in his brief to assert that Bush does have the power necessary to order the state courts to provide a meaningful remedy for Medellin.

"When the president acts pursuant to a duly ratified treaty and his own constitutional authority, he acts with the full authority of the United States, and his authority is at its zenith," Clement writes.

Cruz, the Texas solicitor general, responds that because Bush's memo clashes with so many other powers in the US, he must first obtain the approval of Congress to properly authorize his chosen remedy.

"There are constitutional avenues available," Cruz says.

Among them, according to Cruz, Bush could ask Congress to pass a special amendment to the federal habeas corpus statute to permit an additional level of appeals in the federal courts to satisfy the ICJ ruling. Or the president, in concert with the Senate, could enact a treaty with Mexico requiring additional review of the ICJ cases in federal court, he says.

The alternative, Cruz says, is that the president's order to the Texas judiciary be viewed as a mere request, rather than a presidential command.

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