President Bush really has managed to alienate a remarkable diversity of people in the last few years. This fall, the U.S. Supreme Court will hear a case that pits, essentially, President Bush against his own home state of Texas over the effect of an International Court of Justice judgment requiring procedural remedies to Mexican nationals sentenced to death in U.S. courts. The highest criminal court in Texas has already rejected giving effect to the President’s memorandum, which purported to require giving foreign nationals additional remedies prior to an execution being carried out. The Court will hear the case on October 10 and briefs for that oral argument are due this week. (For more background, see here). I am pleased to be able to share with our readers a copy of a sure-to-be influential amicus brief filed in favor of Texas, written by Texas lawprof Ernest Young who I inadvertently left out in my initial post, and joined by quite a lineup of lawprofs including Erwin Chemerinsky, John Eastman, Thomas Lee, Michael Ramsey, Michael Van Alstine, Arthur Mark Weisburd, and John Yoo. Here is the opening graf:
This odd case raises fundamental questions about the Executive’s authority vis-á-vis Congress and the authority of the national political branches vis-á-vis the state courts.
Construing the President’s terse and cryptically worded “Memorandum for the Attorney General” as a mandatory directive to the state courts, the United States asserts a unilateral executive authority to preempt neutral state-law limitations on the jurisdiction of the state courts. Such an action would not execute any current international agreement, because the United States has conceded that neither the Vienna Convention on Consular Relations, the Optional Protocol to that agreement, nor the Avena judgment of the International Court of Justice require domestic courts to set aside their ordinary rules of procedural default in cases where a foreign national belatedly raises an objection under the Convention. Instead, the President seeks to act unilaterally, asserting that the Memorandum has preemptive effect analogous to that of an Executive Agreement—but without any such agreement. The better analogy is that the President seeks to make a non-self-executing international obligation— the Avena judgment—have direct domestic effect, but our law of treaties plainly contemplates that Congress must implement non-self-executing international obligations, unless the obligation falls within Executive authority that the President would otherwise possess apart from the agreement. Finally, and most importantly, federal intervention in state criminal proceedings is an area that Congress has delegated to the federal courts under the habeas statute, which is itself a product of finely calibrated legislative compromise. Executive action to interfere with state court judgments in ways that federal courts could not, because of established limits on their habeas jurisdiction, thus falls within the disfavored category under Justice Jackson’s tripartite framework in the Steel Seizure Case.
This is a tough one, and I am still a bit on the fence, and leaning away from the amicus brief, although it is pretty persuasive on some level. Here’s my thought:
I think that Supreme Court caselaw supports a limited presidential power to preempt state law inconsistent with clear unmistakeable national foreign policy priorities embodied in executive agreements or international treaties. That appears to be the route the Court adopted in a 2003 decision called American Insurance Association v. Garamendi. In that case, the Supreme Court preempted California laws that upset U.S. attempts to work out compensation arrangements for Holocaust survivors and foreign insurance companies. The executive agreement in that case did not preempt state law, but the policy embodied in that agreement was held to do so. Here, the U.N. Charter does not preempt state law, but the U.S. obligation to carry out ICJ judgments does strike me as a clear and unmistakeable national foreign policy priority that the President can legitimately invoke against state laws. As a practical matter, I think it makes sense to give the President, and not the courts, the right to override state laws pursuant to an ICJ judgment. The President, of course, can seek NOT to enforce such a judgment if he deems U.S. foreign policy priorities do not require enforcement. But it strikes me, for some of the same reasons we’ve been talking about in the context of emergencies, that some (very limited) deference to executive power over state governments makes sense here. Indeed, there is some precedent for the president doing so with respect to executive agreements.
But like I said, I can’t say I’m completely sure on this one. And, in any case, my prediction is that the Court will “punt” the constitutional issue and interpret the memorandum as nonbinding. Readers, any thoughts?
Here, the U.N. Charter does not preempt state law, but the U.S. obligation to carry out ICJ judgments does strike me as a clear and unmistakeable national foreign policy priority that the President can legitimately invoke against state laws. I presume you mean preemption as a matter of internal law and not that the state law preempts the UN Charter obligation on the United States. The President has picked a particularly artful way to create a difficulty under Separation of Powers and Federalism. As an alternative, he might have gone to Congress to get complying legislation put in place which might have made it more a Federalism issue. How about if the Court does not grant any deference to the President but in this case makes an order saying that the Texas decision is overruled and under the Judicial Power acting consistent with the Executive order, the Texas courts have to review the cases consistent with the ICJ decision. I suspect we will focus on the order and not the underlying obligation as regards the ICJ decision in the internal game. If Texas’ position is let stand then the US will be in breach of its obligations to Mexico and… Read more »