In mid-October, the U.S. Supreme Court heard arguments on a criminal case from Texas that poses yet another threat to our sovereignty. The case involved Jose Ernesto Medellin, a foreign citizen convicted and sentenced to death in 1994 in the brutal rape and murder of two teenage girls in Houston. Long after his sentence was final, Medellin’s lawyers came up with a new appeal point. They argued that because Medellin was not a U.S. citizen, and under the Vienna Convention the Mexican consulate should have been notified when he was arrested, his appeal should be reopened. This argument was accepted in 2004 by a foreign tribunal, the International Court of Justice in The Hague. Medellin was indeed born in Mexico, but lived in the U.S. most of his life. He speaks, reads and writes English, and attended U.S. schools. Disappointingly, the Bush Administration has issued a directive to Texas officials attempting to enforce the foreign court’s judgment, and also backed Medellin’s side at the U.S. Supreme Court. I have argued that the President lacks constitutional authority to direct Texas to reopen Medellin’s conviction. In my opinion, the President cannot by himself transform an international treaty, and especially a foreign court’s judgment, into domestic law.

[Article 26, Paragraph 1(c)] With a view to facilitating the exercise of consular functions relating to nationals of the sending State [...] consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

In a case that mixes presidential power, international relations and the death penalty, the court sided with Texas and rebuked Bush by a 6-3 vote. The president was in the unusual position of siding with death row prisoner Jose Ernesto Medellin, a Mexican citizen whom police prevented from consulting with Mexican diplomats, as provided by international treaty. An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country's consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases.

[White House Press Secretary Dana Perino] noted that the administration's position in the case was focused on the authority it believed the president has to compel a state to comply with international agreements. "The argument of the United States in this case in no way condoned or defended the heinous crime," Perino said. Bush, who oversaw 152 executions as Texas governor, disagreed with the decision. But he said it must be carried out by state courts because the United States had agreed to abide by the world court's rulings in such cases. The administration argued that the president's declaration is reason enough for Texas to grant Medellin a new hearing.

Justice John Paul Stevens, while agreeing with the outcome of the case, said nothing prevents Texas from giving Medellin another hearing even though it is not compelled to do so. "Texas' duty in this respect is all the greater since it was Texas that - by failing to provide consular notice in accordance with the Vienna Convention - ensnared the United States in the current controversy," Stevens said.

Medellin was arrested a few days after the killings of Jennifer Ertman, 14, and Elizabeth Pena, 16, in Houston in June 1993. He was told he had a right to remain silent and have a lawyer present, but the police did not tell him that he could request assistance from the Mexican consulate. Medellin, who speaks, reads and writes English, gave a written confession. He was convicted of murder in the course of a sexual assault, a capital offense in Texas. A judge sentenced him to death in October 1994. Texas acknowledged that Medellin was not told he could ask for help from Mexican diplomats, but argued that he forfeited the right because he never raised the issue at trial or sentencing. In any case, the state said, the diplomats' intercession would not have made any difference in the outcome of the case. [Emphasis added.]

Among the Justices, only David H. Souter spent some time exploring whether the Court could avoid a decision that would reject the President’s authority to implement the World Court judgment by simply ruling, on its own, that the international tribunal’s decision on the Mexican nationals was binding. Questioning Cruz, for example, Souter wondered whether there was any “positive rule, in international or domestic law, which precludes this Court from being the implementing authority” of a World Court decision? The state’s lawyer replied that the Court was “the final authority to determine federal law,” but said that, if it were to do so in the Medellin case, it would have to overrule its ruling of a year ago in the case of Sanchez-Llamas v. Oregon finding that the Vienna Convention does not give foreign nationals a right to claim violation of their Convention rights if such claims are barred by state criminal procedures.

Medellin’s lawyer and the Justice Department take the view that the Sanchez-Llamas decision only dealt with an interpretation of the Convention’s meaning, not with an actual Court judgment in a specific case. Medellin contends, though, that the judgment is binding on the state on its own terms, under the Supremacy Clause, but the government takes the view that it is to be implemented because the President has said so. [Emphasis added.]

If the World Court’s judgment on the Mexican nationals’ legal rights here were binding federal law inside the U.S., Roberts wondered, would the Justices have any authority to second-guess the content of that law? “We would have no authority to review the judgment itself?” he asked with notable skepticism.