ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
At the Supreme Court today, the Bush administration teamed up with a convicted murderer and the Mexican government. Their opponent: The state of Texas. At issue is whether the president can order state courts to comply with the provisions of a treaty that was signed by the United States.
NPR's Nina Totenberg reports.
NINA TOTENBERG: In 1969, the Senate ratified a treaty guaranteeing that when foreign nationals are arrested, they must be given access to diplomats from their home country. Although the provision was inserted at the insistence of the United States to protect its citizens abroad, here at home, state and local governments were slow to honor it.
One of the many foreign nationals not told of his right to consular access was Jose Ernesto Medellin, a Mexican national raised in the U.S. At age 18, he was arrested and confessed to the brutal rape and murder of two teenage girls. Years later when he learned of the right to get embassy help, 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 to it later on.
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 U.S. By a 14-1 vote, the International Court ruled that the U.S. had violated the treaty and ordered that the death sentences be reconsidered to see if embassy help could have made a difference to the outcome.
President Bush then withdrew from the portion of the treaty that submits these disputes to the International Court, but he concluded that 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. 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 today, Texas solicitor general Ted Cruz framed the case as a test of whether U.S. sovereignty is paramount…
Mr. TED CRUZ (Solicitor General, Texas): Or is it a foreign tribunal attempting to set aside laws of the United States.
TOTENBERG: But Medellin's lawyer, Donald Donovan, framed the case as a test of whether the U.S. can keep its word in treaties signed by the president and ratified by the Senate.
Mr. DONALD DONOVAN (Counsel for Jose Ernesto Medellin): When the United States deals with the world, it deals as one nation, as one voice.
TOTENBERG: Inside the courtroom, the argument as 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 quite a beating from Chief Justice Roberts: Your position seems to leave no role for this court. 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 Kennedy and Stevens both demanded an answer. Finally, Justice Breyer rode to Donovan's rescue: 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? Answer: 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 the president was merely following in the footsteps of other presidents who've overwritten state laws to enforce treaty provisions.
Justice 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? Answer: 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 taxes - shall be bound thereby. And here, the International Court said the state courts must take a look at these cases to see if the lack of consular access prejudice the outcome. Answer: Texas agrees it's 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 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 or NAFDA. 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's a constitutional problem in giving the International Court the power to decide what U.S. law is. I am rather jealous about power. I think it belongs here and the International Court cannot tell us how to apply our law.
Nina Totenberg, NPR News, Washington.
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