DEBORAH AMOS, host:
The U.S. Supreme Court hears arguments today in a case that pits President Bush against his home state of Texas. The case began with a 1993 arrest of a Mexican citizen for murder. Under an international treaty, Texas officials were supposed to notify Mexican diplomats after the arrest. They didn't. The state of Texas says it's not bound by the treaty, and the president has no power to order its enforcement.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The case of Jose Ernesto Medellin versus Texas is basically about whether the United States honors its word. It's about state's rights and it's about the safety of Americans overseas.
At the center of the case is a treaty. The Vienna Convention on Consular Relations requires that when foreign nationals are accused of crimes, they must be given access to diplomats for their home country. That provision was inserted at the insistence of the United States because so many Americans around the world were being arrested without consular access.
Former Ambassador Thomas Pickering served for 42 years in top State Department posts.
Mr. THOMAS PICKERING (Former Ambassador to the United Nations): Because we had many more travelers, we had many more travelers in trouble.
TOTENBERG: Indeed the State Department reports that some 6,000 citizens are arrested or detained each year in foreign countries. And the consular treaty, says Pickering, has been essential in getting help to those citizens. But in the United States, state and local governments have been slow to acknowledge their duty under the treaty.
Twenty-four years after the treaty was ratified, 18-year-old Jose Ernesto Medellin was arrested for the brutal gang rape and murder of two teenage girls. Medellin had lived in the U.S. since early childhood but was born in Mexico and law enforcement authorities did not tell him he had the right to see Mexican consular officials.
Represented at trial by a court-appointed lawyer who'd been suspended from the practice of law at one point for ethics violations, Medellin was convicted and sentenced to death. Years later, on death row, he learned of the treaty and wrote to the Mexican embassy seeking help. But it was too late. State and federal courts ruled that because Medellin had not objected at his trial to the denial of consular access, he was barred by state and federal law from raising objections later.
That prompted Mexico to take Medellin's case and the cases of 50 other Mexican death row inmates in the U.S. to the International Court of Justice in The Hague. That court, by a 14-to-1 vote, ruled that the U.S. had violated the treaty and it ordered the U.S. to reconsider the 51 cases to see if the denial significantly harmed the defendant's chances of obtaining a sentence less than death.
President Bush then withdrew from that portion of the treaty that submits disputes to the International Court. But he concluded the U.S. was bound by the treaty until it withdrew. So he signed a memorandum to the attorney general requiring the state courts to reconsider the 51 cases in accordance with the International Court's decision.
The Texas courts refused and Medellin's case were backed by the lower federal courts, and Medellin - supported by the Bush administration - appealed to the U.S. Supreme Court, which hears arguments in the case today.
Texas Solicitor General Ted Cruz will argue the case as a battle against unilateral presidential authority. He notes that last year the Supreme Court ruled that the decisions of the International Court are not binding on U.S. courts. Plus the president's memorandum, he argues, violates the separation of powers set out in the Constitution.
Mr. TED CRUZ (Solicitor General, Texas): The president's unilateral action is contrary to the authority of Congress, it's contrary to the authority of the Supreme Court, and it's contrary to the constitutional role of the states.
TOTENBERG: Were the president to prevail in this case, he argues, no state law would be safe from a presidential assertion that it conflicted with the treaty.
Mr. CRUZ: If the president has this power, it is not difficult to imagine subsequent presidents using it to set aside state environmental laws, state criminal laws, state death penalty laws, state marriage laws.
TOTENBERG: But the Bush administration counters that the Constitution makes the national government's action binding on the states when it acts under a valid treaty. And under the terms of the consular treaty and the International Court ruling, it is the president who determines how the United States complies with this treaty.
Yale Law School Dean Harold Koh filed a brief siding with the administration on behalf of former diplomats.
Mr. HAROLD KOH (Dean, Yale Law School): When we created the Constitution, there was this supremacy clause, which said treaties are the supreme law of the land. Here there are three treaties involved. And all of them were signed by the president and ratified by the Senate. And as such, they became part of the law of the United States, just as much as a statute that was passed by Congress.
TOTENBERG: A decision in the case is expected later this term.
Nina Totenberg, NPR News, Washington.