Medellin’s Day in Court

Today, the Supreme Court finally hears oral argument in the Medellin case. I don’t have much more to add than what SCOTUSBlog has reported here, but it strikes me that Texas is again in a very difficult position, mostly because of their own high-risk litigation strategy and also because of Medellin’s clever and effective approach.

By filing a motion to stay the proceedings until it pursues its remedies in Texas court, Medellin has put itself in the position of being the reasonable party seeking to pursue its remedies as provided by the ICJ and now the executive branch in state court. Texas is in the odd position of making arguments about the federal judicial enforceability of the ICJ order that may not matter because even if Texas wins, a Texas court might still require Texas to comply with the President’s order in a subsequent proceeding. So they might very well be wasting the Court’s time. And that can never be a good position for an advocate before the Court.

I say all of this even though I think Texas is right that there is no judicial enforceability of the ICJ order. But the strongest element of its case against judicial enforceability is precisely the argument it doesn’t want to make: that no judicial enforceability is necessary because the Executive will enforce the order.

I would be shocked if the Supreme Court reaches out to decide this case in the face of Medellin’s desire to go back to state courts and the Executive’s intervention to take responsibility for enforcing the ICJ order. If the Court nonetheless plows ahead, it would be a remarkable (and in my view ridiculous) assertion of judicial control over foreign policy not in the absence of executive action but in the face of it.