As a presidential candidate in 2000, then-Gov. George W. Bush had a ready reply for those who would criticize the governance of his state: "Don't mess with Texas."
Yet, five years later, as president, Bush stands accused of doing just that. And the accuser is none other than the State of Texas, which says Bush is attempting to impose on a sovereign state not only his will, but also the will of an international court that has no authority over criminal justice in the United States.
The dispute will be aired today at oral arguments in the Supreme Court in a case that may test just how far the justices are prepared to push their recent interest in using international law as a source of authority for interpreting the U.S. Constitution and U.S. statutes.
"The justices presumably took the case to clarify basic questions about the interface between international, federal and state law," said Lori F. Damrosch, a professor of international law at Columbia University.
At issue in the case, Medellin v. Dretke, No. 04-5928, is the fate of 51 Mexicans who were convicted of murder and sentenced to death in Texas and other states without first having access to diplomats from their home country. The International Court of Justice (ICJ) in The Hague has ruled that their rights under the Vienna Convention on Consular Relations were violated, and that they are entitled to new hearings in Texas courts to determine whether the violation caused their convictions or sentences.
On Feb. 28, Bush intervened to say, in effect, that he would take care of the case. Citing his constitutional power to set the nation's foreign policy, he issued a "determination" instructing the Texas courts to comply with the ICJ's ruling by holding a hearing for one of the Mexicans, Jose Ernesto Medellin, a Houston gang member convicted in 1994 of raping and murdering two teenage girls in Houston.
Then the president withdrew the United States from the part of the treaty that gives the ICJ enforcement authority, ensuring that, although Medellin and the 50 other Mexicans would be entitled to relief under his Feb. 28 determination, no similar cases could arise at the ICJ again.
Bush took these steps to smooth diplomatic tensions with Mexico and other nations over the death penalty cases, while also appeasing those in his administration who are skeptical of international bodies such as the ICJ, lawyers familiar with the case said.
But his approach did not play so well north of the Rio Grande, where state officials say their ex-governor is trampling on Texas's sovereignty. "[T]he claimed authority is all the more extraordinary in that it commandeers state courts and directs them to set aside state criminal statutes in deference . . . to an ICJ decision that the Executive has simultaneously recognized misinterprets U.S. treaty obligations," Texas Attorney General Greg Abbott wrote in a brief filed March 15 at the Supreme Court.
Medellin's lawyers have said they are satisfied with the president's approach, at least for now, and have asked the Supreme Court to put its proceedings on hold while they try their luck in Texas courts.
But the justices have not acted on that request. Apparently they are not willing to accept Bush's invitation to bow out until they at least have had a chance to hear administration lawyers clarify their position, which legal analysts describe as probably unprecedented.
"It's not so Earth-shattering that the president should say we'll follow our international obligations," said Damrosch, who drafted a friend-of-the-court brief for the European Union supporting Medellin. "What's odd is that the president is saying we'll discharge the obligation by action in state courts. That's a twist."
Still, Damrosch said that, in her view, the president has done nothing more than enforce Article VI of the Constitution, which provides that treaties will be "the supreme law of the land; and the judges in every state shall be bound thereby, anything in the . . . laws of any state to the contrary notwithstanding." But Texas and its supporters note that Medellin broke the state's procedural rules by not bringing up the alleged Vienna Convention violations at his trial, and that he is not entitled to a second chance.
Last year, the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, cited those state procedural rules in denying Medellin the right to take his Vienna Convention claims to federal court. The Vienna Convention confers no judicially enforceable rights on individuals, the 5th Circuit said. That is the decision that Medellin has asked the Supreme Court to review.
Richard A. Samp, chief counsel of the conservative Washington Legal Foundation, who wrote a friend-of-the-court brief supporting Texas on behalf of Sandra and Randy Ertman, parents of Jennifer Ertman, one of the murdered teenagers, said there is no reason to prefer the ICJ ruling over a 1996 federal law that limits post-conviction appeals such as Medellin's.
"What I find unfortunate is that we're 12 years after the murder," Samp said, "and the parents of the victims have had to go through this for 12 years, and as a result of what President Bush has done, it could be three to four more years."