08 Mar 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.