Medellin Update: The President v. Texas

I’ve been remiss in failing to keep up with the proceedings in Medellin v. Dretke, a case involving the enforceability of a judgment by the International Court of Justice that I blogged rather obsessively about here, here, and here. Luckily, Lyle Denniston of SCOTUSBlog is on the case here with a useful report on the latest proceedings, which have become a fascinating struggle over competing visions of executive power and federalism (thanks also to Marty Lederman for pointing me to this post as well as this Texas Lawyer account of the oral argument).

The battle in the original Medellin case focused on the authority of domestic U.S. courts to implement an ICJ order requiring a judicial hearing to determine the effect of a treaty violation on a foreign national’s criminal conviction and capital sentence. The battle in the subsequent Texas proceedings have focused on legal consequences of the President’s “memorandum” requiring Texas state courts to implement the ICJ’s order. Texas is taking the view that the memorandum cannot be considered as “binding” without undermining principles of constitutional federalism and separation of powers. The President appears to be taking a hard line, relying heavily on the Supreme Court’s 2003 decision in American Insurance Association v. Garamendi, which seemed to preempt California law via a statement of national policy by the executive branch.

My original view is that a Presidential implementation of the ICJ order is not ideal, but not the worst result (the worst result being the Supreme Court’s implementation of the ICJ order). Garamendi, read expansively, probably supports the President’s authority to act as he did in ordering Texas to comply with the ICJ order.

But I think a semi-legal realist like myself has to consider a couple of factors that might very well allow Texas to prevail: (1) the changing composition of the U.S. Supreme Court, with the addition of Chief Justice Roberts and Justice O’Connor’s replacement still unknown; (2) the Court’s somewhat uncertain path on the subject of foreign affairs and federalism veering back and forth between giving deference to the states and running roughshod over them.

Moreover, top-notch scholars like Ernie Young of Texas and Michael Ramsey of San Diego have filed a sophisticated brief supporting Texas by arguing for a limitation of Garamendi. I myself have joined an amicus brief* reiterating my view that the courts do not have the independent authority to implement the ICJ order. So maybe the Texas courts will decide that Texas can ignore both the ICJ order and the President’s order. But I still think that’s a long shot.

*Update: I was remiss in my first version of this post in forgetting to identify Professor Paul Stephan of UVA as the author of this terrific brief. And I have now added links to the briefs as well.