High Court Case Pits Texas Against Bush and International Court of Justice

By Randy Hall | July 7, 2008 | 8:32 PM EDT

(CNSNews.com) - One of the cases the Supreme Court will hear in its new term has officials from Texas accusing their former governor, President George W. Bush, of overstepping his authority by ordering them to follow an international court's ruling about an illegal immigrant who's been convicted of murder.

The Supreme Court will hear arguments on Oct. 10 regarding Medellin v. Texas, and the high court's decision will affect the treatment of more than 50 Mexicans on death row in the U.S., as well as about 6,000 American citizens who are accused of crimes each year while traveling or living abroad.

The controversy began in Houston on June 24, 1993. While 16-year-old Elizabeth Pena and 15-year-old Jennifer Ertman were walking home after visiting a friend, they were kidnapped, raped, and strangled by Jose Medellin and other members of a gang known as the Black and Whites.Jose Medellin

Medellin -- who was in the U.S. illegally -- was tried and convicted of capital murder in 1994 and was sentenced to death. After losing a number of appeals, he wrote to Mexican consular authorities on April 29, 1997, and they began providing him with legal assistance.

In January 2003, as the case was pending in district court, the Mexican government initiated proceedings in the International Court of Justice (ICJ) against the U.S., alleging violations of the Vienna Convention regarding Medellin and more than 50 other Mexican nationals who had been sentenced to death in state criminal proceedings.

The ICJ ruled on March 31, 2004, that the U.S. had violated Article 36 of the Vienna Convention -- which allows consular officers to protect nationals who are detained in foreign countries' courts -- and said the courts should review all the cases.

But two months later, the U.S. court in New Orleans rejected Medellin's appeal, because he hadn't raised the issue during his trial. The Supreme Court also refused to overturn his conviction.

Then on Feb. 28, 2005, President Bush announced that the United States would "discharge its international obligations" by giving the Mexican nationals "review and reconsideration" in the state courts.

Nevertheless, the Texas Court of Criminal Appeals ruled last November that the president's determination exceeded his powers, and it refused to follow the ICJ ruling. Medellin and his attorneys have appealed this decision to the Supreme Court.

"We find ourselves in an unusual position," Texas Solicitor General Ted Cruz told a conference on the case held last Thursday in Washington, D.C., by the American Enterprise Institute Legal Center for the Public Interest. "Texas is not regularly litigating against the United States."

The case also puts Cruz in an unusual position-he served as domestic policy adviser to the Bush-Cheney campaign in 2000 and was a key player during that year's Florida recount.

Still, Cruz called Bush's 2005 announcement regarding the ICJ ruling "a breathtaking order" and stated that a president free to "flick state laws off the books on a simple assertion of international comity" would lead to "enormous mischief."

"This president's exercise of this power is egregiously beyond the bounds of presidential authority," he said.

Not so, argues U.S. Solicitor General Paul Clement in his amicus brief on the case. State courts can't be allowed to veto treaty obligations, and the president has inherent authority in such matters stemming from his unique role in U.S. foreign policy.

"The authority to decide whether this nation will comply with an ICJ decision and, if so, how compliance should be achieved, falls on the president," Clement states in the document.

"In this case, for example, the president was best positioned to balance the harm from complying with a decision with which he disagreed against the adverse consequences to the conduct of foreign affairs, and to American citizens abroad that would attend defiance of the decision," he says.

However, Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, told Cybercast News Service on Monday that the case is intriguing for legal scholars, because it deals with the law on both international and federal levels.

Rulings from the ICJ "are not self-executing," he said, and depend on local and national governments to enforce them.

As a result, the case may turn on the "swing vote" often being cast by Associate Justice Anthony Kennedy and whether he wants the U.S. and the Supreme Court to be thought of highly in other countries. "After all," Shapiro said, "his decision might only result in one more hearing" for Medellin and the other Mexicans facing a death sentence in the U.S.

Nevertheless, Shapiro said that "not only is this a case of federal leaders trying to commandeer state government," it is also an example of "the executive branch trying to tell the judicial branch what to do."

"Ultimately, the ruling should go against the president," he added.

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