Tuesday, March 08, 2005

Texas' Last Stand on Medellin

As the major media finally begins to notice the Bush Administration's decision last week to order state courts to comply with the ICJ's ruling in Avena, Texas may be gearing up for a last stand in the ongoing Medellin saga.

I stand by my prediction last week that the Bush Administration's intervention on the side of the ICJ will almost certainly convince the Court to dismiss Medellin's current appeal. The case would probably be refiled in Texas state court. I also doubted Texas would continue to fight an ICJ-mandated hearing in such a court, especially after someone pointed out to me that Texas' own brief (pp. 46-47) seems to concede that an executive order could require it to comply with the ICJ order. (UPDATE: Marty Lederman points out that this language is a bit cryptic, and that Texas' Brief on p. 7 says that the "President could sign an Executive Order creating some form of executive review" which doesn't necessarily mean it concedes such an order could require state courts to provide a hearing in the way the President wants.)

But even after this admission, this report suggests Texas has changed its position and will contest the authority of the President to order it to comply with the ICJ order. According to its spokesman,

[Texas] respectfully believe[s] the executive determination exceeds the constitutional bounds for federal authority. The State of Texas believes no international court supersedes the laws of Texas or the laws of the United States.

This statement (thanks to Carlos Vazquez for the heads up) suggests two lines of resistance (further suggested by Lederman's pointer): (1) that the Bush Administration "memorandum" is not an official executive order and has limited authority; (2) the ICJ's order cannot authorize the U.S. executive branch to override inconsistent state law.

Both of these arguments are probably loser arguments, in my view. I'm sympathetic, but I'm fairly sure they will lose before this Court. Why? Because Texas would have to get the Supreme Court to reconsider some of its recent precedent that seemed to authorize the President to preempt state law based on declarations of national policy (American Insurance Association v. Garamendi), which seems unlikely. Even if the Court wants to limit Garamendi, the power of the executive branch to exercise its power to interpret and implement treaty obligations protecting foreign nationals is not likely to be the place where they will do so. I'm not thrilled with the idea that the President can unilaterally override state law through executive orders, but I do think it is better than the alternatives (e.g. judicial enforcement). My own scholarship suggests the use of executive orders in this way is virtually unprecedented. But it may be the wave of the future.

I am a bit surprised that Texas is going to continue to fight this because now it will not only have to fight Medellin's attorneys, Mexico's attorneys, but now also the attorneys for the U.S. government. This may not quite be a legal version of the Alamo, but it's getting close.


Blogger JMoore said...

Of course, the question of the constitutionality of such an order by the president may prompt the court to go ahead with this case.

3/09/2005 2:57 PM  
Blogger JMoore said...

After reading Garamendi, I'm not so sure the case is controlling. It is obvious that the president can pre-empt the TX state law that says cases cannot be reopened. However once the law is pre-empted, can he then ORDER the court to rehear? The case says nothing about this(as far as I've read).

Like you, I cannot recall any precedent for this action. If the court drops the case, do you think this would strongly imply that such a presidential power exists? In any event, the lack of clarity on this issue leads me to believe the court will hear the case. If so the court will almost certainly have to consider the validity of a presidential order along with the original questions presented. In that sense we're getting some pretty loaded precedent out of this one case.

3/09/2005 4:26 PM  
Blogger Julian Ku said...

I think this is a murky area of law, but I basically agree with the analysis at expostfacto. The order cannot require texas to do anything, I think, but it can preempt inconsistent state law. The crucial state law problem here is the procedural default defense, which the President (probably under Garamendi) has the power to preempt.

I think the Court will dismiss the case, and wait to see how the issue develops back in Texas. If it comes up, then the parties can fully brief the issue and battle their way back up either through texas courts or back in federal court (maybe).

3/09/2005 8:26 PM  
Blogger 37383938393839383938383 said...

Or SCOTUS could kill Bush's order with a one-line reference to Klein. Just as Congress can't invert the meaning of a Presidential pardon to affect the outcome of a pending adjudication, neither can the President execute an order to interfere with a pending adjudication. The order is drafted to apply to state courts; but it plainly is an attempt to deprive SCOTUS of jurisdiction. Are we assuming that SCOTUS is both stupid and unlikely to be offended by the attempt?

So the President can preempt the procedural default defense, but if he does so blatently to remove an adequate and independent state ground in attempt to force SCOTUS to take the case, doesn't SCOTUS have the discretion to flip the President the bird and take the case, anyway?

3/10/2005 5:29 AM  
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