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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
In its private Conference on April 20, the Supreme Court will consider whether to hear a case, Medell�n v. Texas, No. 06-984, that it has already heard once before and which has become only more important in the interim. A case that began as a dispute between Mexico and the United States has since metastasized into both a dispute between the executive branch and the judiciary and a testy battle of wills between the federal government and the states. The Medell�n case began with the question of the United States’ obligations under international law. Under Article 36 of the Vienna Convention on Consular Relations, foreign nationals have the right to consult with consular officials if they are detained, and law-enforcement officials must inform foreign nationals of this right “without delay.” Although the United States ratified the Vienna Convention in 1969, state and local police regularly ignore Article 36. Jos� Medell�n, a Mexican national, experienced this indifference firsthand when he was convicted and sentenced to death for the gang rape and murder of two young women without ever being informed of his Article 36 rights. Mexican consular authorities became aware of Medell�n’s detention only after the Texas Court of Criminal Appeals affirmed the conviction and sentence, and they began to help him with his legal efforts. Medell�n filed a habeas petition in state court in which he argued for the first time that Texas had failed to inform him of his Vienna Convention rights, but the Texas courts denied relief on the grounds that the argument had not been raised at trial. Medell�n then filed a federal habeas petition, which the federal district court also rejected. While Medell�n’s appeal was pending in the U.S. Court of Appeals for the 5th Circuit, the International Court of Justice decided Case Concerning Avena & Other Mexican Nationals (Mexico v. U.S.) (Avena), in which Mexico alleged that the United States had violated the Vienna Convention when it detained and sentenced to death several Mexican nationals, including Medell�n. In Avena, the ICJ held that the Vienna Convention conferred individually enforceable rights, that the United States had violated those rights, and that the U.S. must reconsider the Mexican nationals’ convictions and sentences even if they had procedurally defaulted their claims. Notwithstanding the ICJ’s holding in Avena, the 5th Circuit rejected Medell�n’s appeal. It held both that Medell�n had procedurally defaulted his Vienna Convention claim and that the convention did not create individually enforceable rights. Medell�n filed a petition for certiorari, which the Supreme Court granted in December 2004. A month before oral argument, President George W. Bush issued a memorandum stating that the United States would comply with Avena by “having State courts give effect to the [ICJ] decision in accordance with general principles of comity.” After Medell�n — relying on the memorandum — filed another state habeas petition, the Supreme Court, by a vote of 5-4, dismissed the writ of certiorari as improvidently granted “[i]n light of the possibility that the Texas courts will provide Medell�n with the review he seeks pursuant to the Avena judgment and the President’s memorandum.” However, in a footnote, the per curiam opinion seemed to invite Medell�n to return to the Supreme Court after his state court proceedings were completed. The Texas Court of Criminal Appeals subsequently dismissed Medell�n’s application for habeas relief, concluding that neither Avena nor President Bush’s memorandum required the Texas courts to reconsider Medell�n’s conviction and sentence. Several justices concluded that the memorandum lacked legal effect because the president had exceeded his constitutional authority by “dictat[ing] to the judiciary what law to apply or how to interpret the applicable law.” Other justices held that, absent a new agreement or treaty with Mexico, the president could not compel state courts to comply with the Avena judgment. Finally, some justices held that this particular memorandum could have no effect on state courts because it was neither a presidential proclamation nor an executive order. The Supreme Court is now being asked to consider what effect — if any — the Avena judgment and President Bush’s memorandum have on state courts. In his petition, Medell�n — represented by Donald Francis Donovan of Debevoise & Plimpton in New York — argues that the memorandum represents an exercise of the president’s exclusive authority over foreign affairs and thus binds the Texas courts. Supported by an amicus brief from a group of ICJ experts, he also argues that because the United States has ratified the United Nations Charter, in which the U.S. agreed “to comply with the decision of the [ICJ] in any case to which it is a party,” the Texas courts were obligated to comply with the Avena judgment even before the memorandum. Finally, Medell�n warns that if the Texas court’s judgment is allowed to stand, states will be able to cause the United States to breach its treaty obligations, jeopardizing the government’s ability to negotiate with foreign countries. Supporting Medell�n’s petition, the United States as amicus curiae agrees that the Texas courts failed to recognize the president’s authority to require them to give effect to the ICJ’s decision. And although it does not oppose certiorari on the issue, it disagrees with Medell�n on the Texas courts’ obligation to comply with Avena absent the president’s memorandum. Taking executive power one step further, the United States contends that ICJ decisions are only enforceable with the president’s authorization. Medell�n’s petition also received the support of the government of Mexico, which filed an amicus brief that focuses primarily on the potential harm from the Texas court’s opinion to Mexico-U.S. relations. It notes that disputes between the two countries have historically been resolved by international arbitration; when arbitration failed in an early 20th century border dispute, “the results were disastrous,” leading to decades of mistrust and acrimony. The brief also notes that, under the North American Free Trade Agreement, Mexico has complied with million-dollar arbitral awards even when it disagreed with the outcome — a less-than-subtle reminder that the effects of this case may be broader than the United States is willing to bear. Opposing certiorari, Texas — represented by its solicitor general, R. Ted Cruz — first contends that the questions presented by Medell�n are moot because the Texas courts already complied with Avena by evaluating, during Medell�n’s original state habeas application, whether Medell�n was prejudiced by his inability to consult with consular authorities. Second, echoing the United States’ brief, Texas argues that the Avena decision, standing alone, cannot bind state courts. Finally, Texas contends, the president exceeded his constitutional and statutory authority by ordering state courts to comply with Avena. For better or worse, the Bush administration has established a reputation as a strong proponent of executive power, and the federal government’s argument in Medell�n is yet another example of this position. In light of this question of executive power, the potential effect on relationships with Mexico, and the Supreme Court’s earlier invitation for Medell�n to return, it seems likely that the Court will agree to hear this case. An announcement may come as early as April 23. — Steven C. Wu
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 06-770, Florida v. Harden (Florida Supreme Court) Whether the anti-kickback provision of Florida’s Medicaid fraud statute is pre-empted by the federal anti-kickback statute. • 06-827, Hrasky v. U.S. (8th Circuit) Whether law enforcement officers’ exploratory search of the interior of petitioner’s vehicle, after arresting him beyond “reaching distance” from the vehicle, violated the Fourth Amendment’s search incident-to-arrest doctrine. [Note: Howe & Russell and Akin Gump represent the petitioner.] • 06-853, 06-865, 06-1014, Chemtura Canada v. U.S., Hercules v. U.S., Chemtura Canada v. U.S. (4th Circuit) Whether the Fifth Amendment permits the unexpected and unforeseeable imposition of over $100 million in retroactive liability without any consideration of the factors articulated by the 4th Circuit in Eastern Enterprises v. Apfel. • 06-1005, U.S. v. Santos (7th Circuit) Whether “proceeds,” in the context of the principal federal money laundering statute, refers to the gross receipts from the unlawful activities or only the profits, i.e., gross receipts less expenses. • 06-1006, University of Phoenix v. U.S. ex rel. Hendow (9th Circuit) Whether an allegation that a claimant has knowingly violated a regulatory requirement that constitutes a threshold condition of federal program eligibility — rather than a condition of government payment — is sufficient to state a claim under the False Claims Act.

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