Tuesday, March 01, 2005

Medellin Update: The Law Professors (and the U.S. and Texas) Strike Back

As I noted on Friday, respondent's brief were due yesterday in Medellin v. Dretke, the Supreme Court case considering the domestic enforcement of judgments by the International Court of Justice. Texas filed a brief (which can be found here) as did a group of law professors (myself included) who filed an amicus brief here in support. But the big question was whether the U.S. government would file an amicus brief and what it would say. Well, they did file a brief (see here) and what they had to say was striking in some instances, as Marty Lederman explains here.

Here is my quick take. I plan to post a much longer discussion later today. The U.S. government's brief follows my suggestion here (OK, they didn't "follow" it, but great minds think alike) in that it pledges to the Court that the Executive Branch will take care of the enforcement of the ICJ judgment without judicial intervention. How they say they will enforce is another matter I'll discuss in the future. The upshot: I predict this intervention will result in this case being vacated and remanded to the lower courts or dismissed altogether. I cannot imagine why the Court would want to hear this case if they don't have to. And the Executive's brief yesterday gives them every reason to believe they don't have to.

Here's why. President Bush has issued an executive order stating:

I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of American (Avena), 2004 I.C.J. 128 (Mar. 31, by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.

End of story? Maybe. Please stay tuned for more....


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