High Court Considers Test of Federal-State Power

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The Supreme Court heard arguments Wednesday in a case involving a Mexican national who was arrested in Texas and confessed to murder without being told of his right, under U.S. treaty, to be given access to diplomats from his home country.

At issue in the case is whether the White House or an international court has the authority to order a state to comply with provisions of a legally ratified treaty between the United States and a foreign power.

The treaty in question was ratified by the Senate in 1969. It was meant to guarantee that when foreigners were arrested, they would be allowed to meet with diplomatic representatives from their country of origin. Although the provision was inserted at the insistence of the United States to protect its citizens abroad, U.S. state and local governments were slow to honor it.

Jose Ernesto Medellin, a Mexican raised in the United States, was one of many foreign nationals not told of his right to consular access. He was arrested and confessed to the brutal rape and murder of two teenage girls. State and federal courts ruled that because he had not raised the denial of his consular rights at trial, he was barred by state law from raising objections later.

In 2004, the Mexican government went to the International Court of Justice on behalf of Medellin and 50 other Mexican citizens on death row in the United States. By a 14-to-1 vote, the court ruled that the U.S. had violated the treaty and ordered that the death sentences be reconsidered.

President Bush then decided to withdraw from the portion of the treaty that submits such disputes to the international court.

He concluded, however, that the U.S. was bound by the provision while it was in force and signed a memorandum instructing that the state courts reconsider 51 cases. When the Texas courts refused to comply with the president's order, Medellin, backed by the Bush administration, appealed to the Supreme Court.

Outside the court on Wednesday, Texas Solicitor General Ted Cruz framed the case as a test of whether U.S. sovereignty is paramount, or "is it a foreign tribunal attempting to set aside the laws of the United States," he said.

Medellin's lawyer, Donald Donovan said the case was about whether the U.S. can keep its word on treaties signed by the president and ratified by the Senate.

"When the United States deals with the world, it deals as one nation with one voice," he said.

Inside the courtroom, the argument was so animated and interesting to the justices that they did something unheard of in recent times: They extended the time for argument by a half-hour.

Defense lawyer Donovan took a beating from Chief Justice John Roberts.

"Your position seems to leave no role for this court," Roberts told Donovan. "For example, supposing the international court ordered a five-year jail term for anyone who didn't comply with this treaty; would this court have a role?"

When Donovan fudged his reply, Justices Anthony Kennedy, and John Paul Stevens demanded an answer.

Finally, Justice Stephen Breyer came to Donovan's rescue, asking rhetorically "What would happen if the international court ordered something that violates our constitution? The answer is, we'd follow our own constitution."

Justice Kennedy: "I have a problem. I think Medellin got all the review he's entitled to. Can the president replace this court's jurisdiction?

Donovan: "The constitution makes treaties the supreme federal law of the land, and the president's authority to carry out treaty obligations is paramount."

Supporting Medellin on behalf of President Bush was Solicitor General Paul Clement, who asserted that the president was merely following in the footsteps of other presidents who have overridden state laws to enforce treaty provisions.

Justice Antonin Scalia: "Usually, enforcement is up to Congress, by passing a law. You're telling us the president can do it by just writing a memo to his attorney general, or to himself."

Clement: "Congress agreed to give the president this authority by ratifying the treaty."

Texas Solicitor General Cruz disputed that. The entirety of the U.S. argument, he said, is that the president's memo is binding federal law.

Justice Breyer: "As I read the constitution, it says a treaty is the law of the United States and that the state courts, and I guess that would include Texas … and here the international court said the state courts must take a look at these cases to see if the lack of consular access prejudiced the outcome."

Clement: "Texas agrees it is subject to federal laws, but the president's memo is not federal law and the international court decision is not a judgment we recognize."

Justice Ruth Bader Ginsburg: "The treaty says we accept the jurisdiction of the international court."

Justice Breyer: "There are 112 treaties where we submit to international jurisdiction, mostly commercial, like the WTO and NAFTA. Are all these unlawful?"

Justice Kennedy: "I do think that the states have to comply with this treaty, but they may not have to adopt the framework suggested by the international court."

Justice Scalia: "There is a constitutional problem in giving the international court the power to decide what U.S. law is. I am rather jealous of that power. I think it belongs here, and the international courts cannot tell us how to apply our law."

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