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WASHINGTON � It’s about presidential power, states’ rights, international treaty obligations, judicial interpretation, foreign affairs and, by the way, the death penalty. U.S. Supreme Court justices will hear arguments on Oct. 10 on whether President Bush had the authority to direct states to comply with a judgment by the International Court of Justice (ICJ) in a case concerning 51 Mexicans on U.S. death row by giving judicial review of their claims of treaty violations regardless of state procedural rules that would foreclose review. Medellin v. Texas, No. 06-984, may be that rare Supreme Court case in which the death penalty actually takes something of a backseat to the major domestic and international legal questions driving this case in the nation’s high court. Texas Solicitor General R. Ted Cruz does not want the justices to lose sight of the underlying crime, and so he goes into devastating detail in his brief’s opening statement about how Jose Ernesto Medellin participated in the 1993 brutal gang rape and murder of two teenage girls as they walked home from a friend’s house. But Cruz � like the 28 states, the European Union, former State Department senior officials, former U.S. diplomats, international law scholars and others supporting and opposing him � is quick to signal the case’s importance. He writes: “It implicates every axis of the structural limitations on government: President vis-�-vis Congress; President vis-�-vis the Supreme Court; international law vis-�-vis domestic law; federal government vis-�-vis the States, and, with a M�bius twist, President vis-�-vis the state judiciary.” Texas and those who filed friends-of-the-court briefs backing the state primarily emphasize the separation of powers issue: The president does not have the authority, acting alone, to, in effect, change state criminal procedures; he can only act in consort with Congress. “These days, so many things that states do have international implications, whether it’s commercial regulation or criminal law, as in this case, or something like climate-change laws, because the world is so interconnected,” said international law scholar Michael Ramsey of the University of San Diego School of Law, who joined an amicus brief supporting Texas. A “very broad” view of executive power that would allow the president to overturn any state law conflicting with foreign policy, he said, “would be according the president enormous lawmaking power. We don’t see the president as lawmaker in our system and that’s the power he is claiming.” But Medellin, represented by Donald F. Donovan of New York’s Debevoise & Plimpton, who also represented Mexico successfully in the ICJ case, and his supporters stress the supremacy clause and the president’s foreign affairs power. “Looked at properly, this ought to be a pretty easy case,” said international law scholar David Sloss of St. Louis University School of Law. The United States, he said, under a combination of three different treaty instruments, agreed to comply with ICJ judgments to which it was a party, and the supremacy clause of the U.S. Constitution makes treaties binding on state courts. “When you put them together, the obligation to comply with the judgment is directly binding on Texas state courts,” said Sloss. “By refusing to comply, the Texas court is not only violating the [treaties] but also the supremacy clause.” While states believe they have much to lose if Medellin prevails, Debevoise’s Donovan and the president say the nation has much more to lose if he does not. There will be no reciprocal protection of American diplomats and traveling citizens under the treaty that we refuse to enforce, the president contends. And we send a signal to the world that we do not honor our treaty obligations. On top of that, a long-running, festering dispute with neighboring Mexico is left unresolved. Just how the high court will approach the problem � separation of powers, federalism, court enforcement of international treaties � is what makes the Medellin case “most interesting,” difficult and important, said treaty scholar Duncan Hollis of Temple University James E. Beasley School of Law. The judgment The ICJ, which settles disputes among United Nations member states, agreed with Mexico in the Avena case � brought on behalf of 51 Mexican nationals, including Medellin, on U.S. death rows � that American law enforcement authorities had violated the Vienna Convention on Consular Relations when the Mexican detainees were tried and sentenced to death without being informed of their right to consular assistance. The ICJ held that the United States must provide “review and reconsideration” of the Mexicans’ sentences and convictions. That review, held the ICJ, must be done within the U.S. judicial system and the doctrine of procedural default could not bar review of these claims. The Supreme Court subsequently had agreed to decide Medellin’s Avena claim but the justices never reached the merits. President Bush in 2005 issued an “executive memorandum” to the attorney general stating that he had decided that the United States would comply with its obligations under the Avena decision by having state courts give effect to the decision. The Supreme Court, noting the president’s action and the prospect of action in the state courts, dismissed Medellin’s case. Medellin, relying on the Avena decision and the presidential memorandum, went back to state court. But the Texas Court of Criminal Appeals denied relief, holding that the ICJ judgment and the president’s memorandum did not override state criminal procedural rules, and that the president had exceeded his constitutional authority by intruding on the power of the judiciary. Medellin returned to the U.S. Supreme Court and will now get his day in the high court, supported by the Bush administration. And yes, the law sometimes makes for strange bedfellows, noted international law scholar Michael Scharf of Case Western Reserve University School of Law. Not only is the administration supporting a death row inmate, but an administration generally strong on the side of states’ rights, he said, is on the opposite side of the federalism argument. Scharf also noted that the ICJ only held that the United States had to reopen these cases. It did not specify, he added, whether the president should be the mechanism or whether individuals had a cause of action to enforce the judgment. But this president, he suggested, doesn’t want a precedent that ICJ decisions are immediately enforceable in the United States. “He’d rather have precedent that when we agree or ‘I consent,’ they are enforceable. I’m not sure the Constitution makes those kinds of subtle distinctions.” After the Avena decision, Bush not only issued the memorandum but also withdrew the United States from the so-called Optional Protocol that would bind this country to future ICJ decisions. “This was a pretty shrewd move,” said St. Louis’ Sloss. “You bow out of the protocol but send a signal to the rest of the world that we view our obligations seriously here.” If Case Western’s Scharf isn’t sure the Constitution makes the “subtle distinctions” about treaty enforcement that the administration makes, the solicitor general of the United States is sure. In his brief supporting Medellin, he said, “It is the president who is authorized to determine whether and how the United States will comply with an ICJ decision.” On the federalism issue, the solicitor general relies on the supremacy clause and adds that “compelling national interests” outweigh the “relatively modest intrusion” on state interests. Medellin v. states Debevoise’s Donovan � who is supported also by Mexico, the American Bar Association, a group of experts on the ICJ, foreign sovereigns, a group of former U.S. diplomats and the European Union � argues that the supremacy clause, together with Article III of the Constitution, makes clear that state and federal courts are to enforce treaties as law in the cases before them. The Constitution also gives the president the duty to “take care that the laws be faithfully executed,” said Donovan, and the authority to formulate and execute foreign policy. That authority is at its “zenith,” he said, when the president acts, as here, in accordance with an act of Congress � here treaty ratification by the Senate. The Supreme Court, he noted, often has recognized the president’s authority to resolve disputes with foreign powers without an act of Congress. “The authority exercised here, to give effect to the result of a dispute resolution mechanism established by duly ratified treaty, is far more modest,” said Donovan. But Texas’ Cruz insists the president’s memorandum “transgresses the authority of Congress, of the judiciary and of the States.” Texas argues that the U.S. Senate has recognized limitations on treaties: They create no individual rights; they are enforceable only through the U.N. Security Council, not through domestic courts; and they are not intended to alter pre-existing U.S. law. The president’s memorandum, says Cruz, violates all three limitations and “commandeers” state court judges into the service of the federal executive. “It’s interesting how Texas does not really do much with the underlying state court judgment in Medellin,” noted Temple’s Hollis. The facts of the case suggest a case about federalism, he said, “but what Texas is doing is stepping away from the larger question of: Can the federal government as a whole impose treaty obligations on the states?” The state is suggesting that the case is as much about who within the federal government should act when it comes to complying with treaty obligations, Hollis said. “It’s trying to make this into a separation-of-powers case,” he said. And the United States is agreeing this is about executive authority, Hollis added, giving the justices alternative, and perhaps narrower, grounds on which to rule. Which path? Which path the Supreme Court will take in Medellin is difficult to predict, said most scholars and experts following the case. On one hand, the court could say this case is about treaties and enforcing treaties, said Hollis, “but I suspect in the end the court is more likely to take the lead of both Texas and the U.S. and view this as more directly a question of whether the president acted within the proper scope of his authority.” He said that the court’s newest members � Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. � may be sympathetic to the presidential-authority argument. If the court goes with the administration, he added, “it will be interesting to see how narrowly it does so.” The case may actually produce some unusual coalitions among the justices, said St. Louis’ Sloss: liberal justices who rule on the basis of the United Nations Charter and the supremacy clause, and perhaps Justice Anthony M. Kennedy, who has a strong interest in international law, joining with more conservative justices, such as justices Antonin Scalia and Clarence Thomas, who would rule on the basis of the executive-power argument. “All these intuitions tend to cut across ideological lines and cut across each other,” said San Diego’s Ramsey. “It makes it extremely difficult to predict.”

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