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Bush’s Power Grab
Danger in the Court.


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Ramesh Ponnuru

At the Supreme Court today, a dangerous principle is being asserted to help an odious man.

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The odious man is José Ernesto Medellín, who is on death row in Texas for his role in the 1993 gang rape and murder of two teenage girls. The dangerous principle is that the president of the United States has the power to order state courts to set aside state law in the interest of his foreign policy.

Although Medellín has spent most of his life in this country, he is a citizen of Mexico. Under the Vienna Convention, law enforcement should have informed him when he was arrested that he could contact Mexico’s consulate. He was not so notified. Late in the appeals process he raised the issue. First Texas courts, and then federal courts, found that it would not have changed the outcome of his trial if he had contacted the consulate.

But then the International Court of Justice purported to order the U.S. to reconsider the case because Medellín (and similarly situated prisoners) were not notified of their ability to contact the Mexican consulate. President Bush followed up with a memorandum that, the administration now says, orders state courts to comply with this ruling.

Most state attorneys general do not believe that the president has the power to issue this order. Neither does John Yoo, a legal academic famous for his expansive view of executive authority. (Yoo signed the same legal brief that liberal warhorse Erwin Chemerinsky signed.) Another brief contrary to the administration’s position was signed by veterans of Republican Justice Departments including such conservative legal heavyweights as Ed Meese, Chuck Cooper, and Timothy Flanigan.

As the state of Texas points out in its brief, the president is asserting an authority that intrudes on Congress, state legislatures, and state and federal judiciaries. The Senate ratified the Vienna Convention with the understanding that it created no individual rights and would not be enforced in state courts. The administration actually agrees that the convention doesn’t create individual rights and can’t be enforced in state courts. It argues, however, that the president has the unilateral power to figure out how to follow treaty obligations.

But the president cannot create individual rights or order state courts to ignore their states’ laws without any congressional authorization. The constitutional scholars, including Yoo and Chemerinsky, make the point well:


The Memorandum . . . represents a discretionary judgment that, in order to further certain foreign policy interests, the state courts should be required to do something more than [the ICJ decision] or the treaty require. That judgment is no more an adequate basis for presidential lawmaking than President Truman’s judgment that national security required seizure of the nation’s steel mills.


The implications are far-reaching. As the same brief points out, President Clinton could have used the asserted power to stop the state of Texas from executing Karla Faye Tucker in 1998 — thus mollifying foreign governments that objected to her execution.

It also points out that the administration’s position would make a mockery of the Senate’s power to ratify, or not ratify, treaties. The Senate has ratified treaties with explicit reservations meant to safeguard the power of Congress to determine domestic law. If the president has the unilateral power to change the law to execute a treaty, those reservations would be pointless.

Critics of executive power have cried wolf many times during the Bush administration. This time, however, President Bush really has gone too far, and the Supreme Court should not cooperate.



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