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In a landmark decision at the intersection of state, federal, and international law, the Supreme Court on Tuesday ruled that neither the World Court nor President George W. Bush can mess with Texas when it comes to that state’s enforcement of its own criminal laws. The justices, in a 6-3 decision that drew strong reaction on both sides, ruled that neither the international court nor a directive by President Bush, both aimed at enforcing a consular rights treaty signed by the United States, amounted to “enforceable federal law” that could be imposed on Texas. The World Court, known formally as the International Court of Justice, had told Texas in 2004 to review the state convictions of 51 Mexican nationals who had not been informed of their rights under the treaty to seek legal assistance from the Mexican consulate. While an earlier version of the case was pending before the Supreme Court in 2005, President Bush issued a memorandum stating he would meet the treaty obligations by “having state courts give effect” to the World Court ruling. But the Texas Court of Criminal Appeals rejected the command, ruling that the state’s limits on successive habeas applications took precedence. As the case Medellin v. Texas made its way back to the high court last year, Texas was cast in the odd posture of opposing the wishes of Bush, its former governor. On Tuesday, Bush’s appointee as chief justice, John Roberts Jr., added insult to injury and authored the ruling against both Bush and the World Court. The decision also, oddly enough, allows Bush to portray himself as an internationalist who wanted to meet treaty obligations but was thwarted by a Supreme Court intent on reining in executive power. Roberts said the consular treaty fit into a category of international agreements that are not “self-executing,” meaning that they need further action by Congress to implement them. Similarly, the Bush memo has no binding authority over states, the majority said. “The President has an array of political and diplomatic means to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them,” Roberts wrote. Joining Roberts were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr. Justice John Paul Stevens wrote a concurrence agreeing with the majority’s bottom line, but saying the consular treaty was self-executing. He also urged Texas to follow the wishes of both the World Court and President Bush. “When the honor of the nation is balanced against the modest cost of compliance,” Stevens wrote, “Texas would do well to recognize that more is at stake than whether judgments of the ICJ and the principled admonitions of the President of the United States trump state procedural rules.” In dissent, Justice Stephen Breyer said the Court’s ruling would “threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” He appended a list of dozens of treaties that might be jeopardized. Justices David Souter and Ruth Bader Ginsburg joined the dissent. Critics immediately pounced on the Court’s decision as untenable defiance of treaty obligations and World Court rulings that would have implications beyond the treaty at issue. “We are disappointed in the Supreme Court’s decision, which is a departure from the original intent of the framers of the Constitution and over 200 years of enforcement of treaties by U.S. courts,” said Donald Donovan of Debevoise & Plimpton in New York, who represented convicted murderer Jose Ernesto Medellin in the case. Donovan called on Congress to enact the implementing language seemingly required by the Court decision to bring the United States into compliance with World Court judgments. “Having given its word, the United States should keep its word.” Temple Law School professor Duncan Hollis, a former State Department legal adviser, said the ruling runs counter to the Constitution, which makes treaties the “supreme law of the land.” The Court’s finding that the consular treaty was not self-executing, Hollis said, “may well have significant repercussions on existing U.S. treaty obligations as well as the views of other nations on the U.S. commitment to international law.” Said Kathryn Kolbert of the liberal People for the American Way, “The most disturbing aspect of this case is that Chief Justice Roberts is signaling that the United States can simply ignore its obligations under international treaties. It’s a ruling that will further erode our standing in the world.” But Kent Scheidegger, legal director of the conservative Criminal Justice Legal Foundation, applauded the decision. Referring to Medellin and his 1993 crime, Scheidegger said, “The controversy over a treaty signed 45 years ago has delayed justice in this case which involves a brutal, remorseless murderer. As soon as the lethal injection controversy is resolved, which we expect to happen this year, justice can finally be carried out in this case.”
Tony Mauro can be contacted at tmauro@alm.com.

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