- The Washington Times - Tuesday, April 15, 2008


One of the low points of President Bush’s administration occurred on Oct. 10, 2007, when the U.S. Supreme Court heard the case of Medellin v. Texas. The Bush administration actually argued to overturn the death penalty of a convicted illegal alien rapist-murder at the behest of the International Court of Justice.

Yet one of the high points of the Supreme Court occurred on March 25 in deciding that case. The justices faced a big question: Should state courts in Texas, as decreed by a Bush executive order, obey an International Court of Justice decision that violated state law? Chief Justice John Roberts, writing for a 6-3 majority, delivered an emphatic no.

It was a sad day to see the U.S. solicitor general arguing in support of Jose Medellin, who confessed to participating in the 1993 rape, torture and murder of Houston teenagers Jennifer Ertman and Elizabeth Pena, and even bragged about keeping one girl’s Mickey Mouse watch as a “souvenir” of the crime.

Medellin and four others were convicted and sentenced to death by Texas. But the Bush administration got involved after the international court in the Netherlands said Medellin was not informed of his right to contact the Mexican consulate for legal assistance. The Hague court further said this was a violation of the 1963 Vienna Convention.

This infuriated Ted Cruz, the passionate Texas solicitor general who argued on behalf of states’ rights and for the execution of the murderer. Although he was a loyal Bush campaigner in 2000, Cruz wasn’t shy about attacking this “outrageous abuse of presidential power.” In a hard-hitting address to the Atlanta Federalist Society on Dec. 12 where this author was present, Cruz underscored that every major constitutionalist scholar supportive of vigorous presidential powers thought that Mr. Bush had gone too far.

“It is emphatically not the province of the president to say what the law is,” Mr. Cruz said. “If this president’s assertion of authority is upheld in this case, it opens the door for enormous mischief from presidents of either party. What might these presidents be inclined to do if they had the power to flick state laws off the book?” The genesis of the case was in 2003 when Mexico sued the U.S. over the consular issue in the international court. The court ruled in Mexico’s favor in late 2004 and ordered the U.S. to reconsider the inmates’ convictions. It was in February 2005 that Mr. Bush decided to comply, thus the order to Texas to review the cases. Mr. Cruz labels as villains then-Attorney General Alberto Gonzales, Secretary of State Condolezza Rice and then-White House counsel Harriet Miers. They said the U.S. shouldn’t agree with the ICJ’s interpretation of the Vienna Convention as it relates to foreign death-row inmates, but then turned right around and advised the president to support Medellin and the other criminals to curry favor with Mexico’s then-President Vicente Fox. (A footnote: Mr. Fox’s recent book, released after his presidential term ended, contains harsh attacks on Mr. Bush and his policies. So much for Mr. Bush’s fawning efforts to be Mr. Fox’s “friend.”) In his Atlanta speech, Mr. Cruz was blunt: “After the re-election, the Bush administration was in a feel-good mode and wanted to reach out to allies.” Ironically, Cruz said, “the main advisor who opposed the executive order to the Texas state courts was Solicitor General Paul Clement” - who ended up loyally arguing on behalf of Medellin before Supreme Court justices.

It should be noted that the U.S. Supreme Court, which had originally agreed to hear the case, dismissed it in 2005 to allow the case to play out in Texas. The all-Republican Texas Supreme Court ruled against Mr. Bush’s order, holding that the judiciary, and not the White House, should resolve the Mexican cases. The Texas high court further ruled that Medellin never complained at his original trial about any violation of his consular rights and had therefore waived them. So Medellin again appealed to the U.S. Supreme Court - and finally received his answer.

The high court dismissed the president’s executive order in its protection of the constitutional principles of federalism and separation of powers. The ruling reminds future presidents that treaty obligations do not necessarily take on the force of domestic law. Congress would have to pass enabling legislation. As Justice Roberts wrote, the courts must leave to the political branches “the primary role of deciding when and how international agreements will be enforced.” This decision is indeed a welcomed and refreshing blow to those who continually cite foreign law to overrule our Constitution and courts.

Phil Kent is an Atlanta author and former president of the Southeastern Legal Foundation.

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