October 11, 2007

Can the President direct the states to follow a ruling of the World Court on the meaning of of a U.S. treaty?

This is the subject of Medellin v. Texas, argued — with great vigor — in the Supreme Court yesterday. SCOTUSblog summarizes:
With cross-currents of constitutional and international law flowing freely, what appeared to be a majority of the Justices looked askance at a Presidential memo in February 2005, directing nine U.S. states to give 51 Mexican nationals convicted of crimes in those states a new chance to test their rights under an international treaty, the Vienna Convention on Consular Relations. What was troubling those Justices the most, it seemed, was that the President had sought to make binding a ruling by the World Court that would otherwise not have controlling effect on states’ ciminal [sic] procedures. That was worrisome for two reasons: it might intrude on the Court’s role to say what the legal meaning and effect of treaties is, and it might empower the World Court, in effect, to dictate the substance of American law....

Justice Anthony M. Kennedy ... twice raised concerns about whether the President could “displace the authority” of the Court to interpret judgments of the World Court. ... The World Court ruling itself, [Medellin's lawyer] said, is federal law — binding on the states by virtue of the Supremacy Clause, and also binding because the President had concluded through his Article II power to it was in the nation’s interest to comply with the World Court judgment.

... [Solicitor General Paul] Clement stressed that the government did not support Medellin’s argument that, without the President’s action, the World Court decision would be binding on the state courts in the U.S. “The President’s role is critically important,” the Solicitor General argued....

Two members of the Court who often talk of the value of looking to foreign law for guidance, Justices Stephen G. Breyer and Ruth Bader Ginsburg, were clearly the most willing on Wednesday to show support for the World Court’s authority and the duty of the U.S. to fulfill its promise of obeying World Court judgments in interpreting the Vienna Convention. Thus, they were the most energetic questioners of Texas’ state Solicitor General, R. Ted Cruz.

Justice Breyer sought Cruz’s response to a simple “chain of logic,” going from the language of the Constitution making treaties “the law of the land,” the U.S. agreement to the Vienna Convention and its agreement to abide by World Court rulings applying that treaty, and then to the requirement of the World Court that states take full account of the Convention’s strictures. Cruz said that Texas did not dispute that treaties were the law of the land, but said that what was at stake here was the action of the President in seeking to make the World Court judgment binding on the states in contradiction to their own laws. The Convention, he said, is not a self-executing treaty, and the President cannot make it so on his own....
This is an extremely difficult question. Here's the PDF transcript of the argument. I will write something more about it later.

49 comments:

PWS said...

Two questions:
1. If Texas concedes the treaty is binding but it doesn't want to have to do anything, isn't it a right w/o a remedy situation?

2. What will be practical effect of a ruling in the defendant's favor? I'm assuming consular access would not change the facts underlying his conviction. Is there an extradition issue?

Roger said...

The law often mystifies me, and even more so as I tried to wade through the transcript. The Scotusblog summary is absolutely outstanding in laying out the issues for a lay person. With respect to World Court authority, Thomas Hobbes words come to mind: Covenants without the sword are but words alone, without the strength to bind.

hdhouse said...

This was covered in a political frame on Lou Dobbs the other night and that issue, the fallout effect, might prove to be even nastier than the legal battle.

As a novice in this, am I to take from the argument that someone arrested on US soil not only must receive a Miranda reading but, if he/she proves to be a foreign national a second step, that of facilitating contact with the home country counsel must be undertaken?

I am thinking purely in terms of geography and access and the practicality of this measure. We could be led astray by thinking merely in terms of Mexico which is at case here.

Roger said...

HD: that was my understanding (thanks to Nina Totenberg). Seems to me the big issue, as you rightly point out: the US his a huge country not well covered by diplomatic offices. Then there is the whole issue of some fairly large number of undocumented aliens. What if they dont want to identify themselves? Can they waive access to diplomatic counsel?

Simon said...

Dahlia had an amusing take too, here, and the briefs -- approach with trepidation -- can be found here. Fascinating case, and very thorny, too.

rhhardin said...

My naive question is whether US voters can undo it politically, whatever it is.

Which draws on the question whether a past Congress can ever bind a future one.

Undo politically doesn't mean wait for a Supreme Court Justice to retire or die.

EnigmatiCore said...

If the treaty was approved, and the treaty said we would abide by the World Court's rulings, then we should abide by the Court's rulings or get out of the treaty.

I am very dubious about the SCOTUS being the arbiter over treaties, especially since they ruled that we must give the protections accorded by the Geneva Conventions to those who were fighting out-of-uniform, which the Conventions themselves offer no protections.

Simon said...

rhhardin said...
"My naive question is whether US voters can undo it politically, whatever it is."

Well, we can abrogate a treaty, prospectively, but my understanding had been that this case is a habeas proceeding, and that in collateral proceedings, very generally speaking, you're stuck with whatever the rule was at the time of final judgment on direct review. So if that's right, abrogating all the treaties involved here now wouldn't change their application to this case, is that right?

P. Rich said...

"...the duty of the U.S. to fulfill its promise of obeying World Court judgments in interpreting the Vienna Convention."

It's only a "duty" if the Senate says it is and any formal objections have been resolved through the US court system. No foreign body ever ultimately trumps the Constitution and delegation of powers, unless the radical activists succeed in changing the basis of our society beyond recognition - which they are attempting to do with the support of the Breyers and Ginsburgs of the world.

The problem, it seems to me, is that a treaty is in a sense "fixed" in its content, whereas World Court rulings can vary from day to day without going through a Senate review and approval process - which would seem to violate, or circumvent, existing checks and balances on what constitutes binding US law.

EnigmatiCore said...

P. Rich-- Was the treaty in question here ratified by the Senate?

If so, then the Senate had their say. If not, then it is not a valid treaty. (All my layman's opinions, here).

If it wasn't ratified, then the SCOTUS should not give it a second thought. If it was ratified, the Constitution says it is the law of the land, and the SCOTUS should defer accordingly. Or we should get out of the treaty.

Simon said...

EnigmatiCore said...
"I am very dubious about the SCOTUS being the arbiter over treaties...."

If treaties are part of the law of the land, how could it be otherwise?

"... especially since they ruled that we must give the protections accorded by the Geneva Conventions to those who were fighting out-of-uniform, which the Conventions themselves offer no protections."

Well, even setting aside constitutional questions about jurisdiction stripping, I don't think it's a very satisfying criterion to say that they ought not to have jurisdiction over a broad class of cases because they got the wrong result in a particular case. You're obviously upset about Hamdan, but suppose you were really upset about the Apprendi line of cases, because you think those cases are wrongly-decided, that they're a terrible result that frustrates law and order conservative results. Would you say that the court's wrong decisions in those cases makes you very dubious about their being the arbiter of sixth amendment claims?

EnigmatiCore said...

"If treaties are part of the law of the land, how could it be otherwise?"

Maybe my wording was poor when I chose 'arbiter'.

The text of the Constitution says " all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

So if we enter into a treaty that says that we will abide by the rulings of a World Court, and the World Court rules something, then it is the law of the land, and "any Thing in the Constitution", including the parts that delineate the powers of the Supreme Court cannot counter it.

"You're obviously upset about Hamdan, but suppose you were really upset about the Apprendi line of cases, because you think those cases are wrongly-decided, that they're a terrible result that frustrates law and order conservative results. Would you say that the court's wrong decisions in those cases makes you very dubious about their being the arbiter of sixth amendment claims?"

I guess I have to do a bit of role playing here, but I am not sure it would work. You are right that I am upset about Hamdan, but since I am not about Apprendi I have to imagine-- but if I am imagining I am different, then how can I say what I would say in that hypothetical and have it be reflective of what I actually believe? To resolve this, I'll just say that I don't think the Constitution gives the SCOTUS a role here, and my comment about not having confidence in their judgment when it comes to treaties because of Hamdan is tangental and probably should have been omitted.

LarsPorsena said...

All nice legal points but please remember the defendant tortured, raped, and murdered two little girls.

Pastor_Jeff said...

I heard this on NPR yesterday. It is fascinating, and PWS @ 8:36 hit on the question I have:

If Texas concedes that the man was unfairly denied access to consular counsel but the state doesn't want to grant a retrial, what remedy does Texas think is appropriate?

hdhouse said...

Enigmatic...best I can see in search is that ratification was advised by the senate.

On thought, I can't blame the Senate because there is no way they could have foreseen such a case making its way to the world court and the ruling coming out like this with the consequences.

Isn't it equally a mess that the convention is 46 years old and that this knife has probably cut both ways a number of times.

One thing is for certain, this entire matter should be clarified legally in terms that can be understood directly to the citizenry otherwise there will be distortion beyond belief and it will wind up being political not legal. i've already heard a lot of lipservice to the "unified north america" theme and the administration's siding with the criminals/Mexico being just evidence of something...and nothing that has to do with law.

Simon said...

Enigmaticure:
"[I]f we enter into a treaty that says that we will abide by the rulings of a World Court, and the World Court rules something, then it is the law of the land, and 'any Thing in the Constitution', including the parts that delineate the powers of the Supreme Court cannot counter it." (Emphasis added.)

I think you either mis-spoke, or have misunderstood the Supremacy Clause. Your quotation (emphasized above) omits an absolutely vital qualifier: the "Judges in every State shall be bound []by [the Supreme law of the land], any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." No treaty does or could trump the federal Constitution - the Supremacy Clause says only that federal law trumps contrary provisions of state law and state Constitutions. It's nonsensical to reason that the Supremacy Clause forecloses Supreme Court review because "and 'any Thing in the Constitution', including the parts that delineate the powers of the Supreme Court cannot counter it" - the "parts that delineate the powers of the Supreme Court" are in the federal Constitution, not a state constitution.

If it were otherwise, think of the full text of the Supremacy Clause: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." If "the Constitution" referred to in the last sentence means the federal Constitution not purely the several state constitutions (the obvious import of the text in any event) then the Supremacy Clause says this: "This Constitution, and the laws of the United States, are the law of the land, notwithstanding anything in this Constitution and the laws of the United States."

Simon said...

Sorry, I just mistyped, I didn't deliberately misspell your name there, Enigmaticore.

EnigmatiCore said...

"I can't blame the Senate because there is no way they could have foreseen such a case making its way to the world court and the ruling coming out like this with the consequences."

I blame the Senate-- and the Executive branch-- because I think that such a ruling with such consequences would naturally be the result of any sort of World Court.

That you think such a thing was unforeseeable might be a sign that you might want to become a little more cynical about such idealistic international ventures.

I think it is a bad treaty, and we should get out of it. However, I believe that while in a treaty, we should abide by it.

And as far as Hamdan is concerned, I believe it turned the Geneva Conventions from a good thing to a bad thing, and we should remove ourselves from the treaty that established it.

Simon said...

Pastor_Jeff said...
"If Texas concedes that the man was unfairly denied access to consular counsel but the state doesn't want to grant a retrial, what remedy does Texas think is appropriate?"

I think their proposed remedy is "kill 'em all and let God sort it out," isn't it? ;)

EnigmatiCore said...

Simon,

I had always been taught that treaties don't just bind the states but also the federal-- which is why they require two branches to enact.

If I am wrong, and treaties supercede state constitutions but not the US Constitution, then I'll pull a Roseann Rosannadana and say "nevermind," while I track down my former teachers to slap them around a bit.

I'm not sure it really changes my view of this particular case, though. The practicality of the World Court's ruling doesn't matter, the state's laws or Constitution doesn't matter. The treaty says we'll follow the Court's rulings, the Court ruled, so we either follow it or get out of the treaty. IMO.

Simon said...

Enigmaticore -- the U.S. can't make a treaty that violates the Constitution, that much is well-established (this comes up in the oral argument that Ann linked to, and is an unchallenged point). Once made (setting aside questions about self-execution) it's binding on both the states and the federal government, but it occupies a position that is coequal to any other federal law, and can be displaced by subsequent legislation by Congress. Consequently, I've argued that functionally-speaking, treaties are only binding on the states and the conduct of the executive (and perhaps judicial) branches, but not on Congress, since "an act of Congress, by definition, cannot violate a treaty.... [W]hen a treaty provision and an act of Congress conflict[,] ... neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant." (internal quotation marks omitted).

Ann Althouse said...

The President's order is only aimed at the states, and the treaty is (I think) not self-enforcing, so that suggests that a statute is needed to enforce the treaty. We don't have that statute. We just have the President's order, and it is aimed only at the states. That's a special problem here.

hdhouse said...

isn't that, though an interesting potential twist....getting out of the treaty that is...

can we retroactively get out of the treaty? it is a routine matter for defendants to be tried under the laws at the time they commitment the crime or charges were brought and if new law is written, then the old law prevails.

Wouldn't this be the case here if we abandoned the treaty?

Simon said...

That is, put another way, there's a hierarchy of authority under the federal Constitution. Obviously, the people of the United States themselves -- perhaps acting corporeally, but certainly acting through Article V -- are the ultimate authority. And then the Constitution sits one rung beneath that, and the Constitution delineates the spheres of what the federal government can and can't do, what the states may not do, and leaves some overlap. Beneath that, it splits into two bits. You have valid exercises of the federal legislative or treaty-making power. And those exercises are superior to state law and even state Constitutions. But other than those areas where the Constitution has taken an area away from state control, the chain continues down through state Constitutions to the state laws and so forth. I'm sure there's a fascinating diagram of this somewhere.

Ann Althouse said...

"isn't that, though an interesting potential twist....getting out of the treaty that is..."

The case is more about who says what the law is. Do you want the answer to be the President?

Richard Dolan said...

At one level, this is a case about nothing. The case involved the right of Mexican nationals (who had been raised and gone to school in the US) to be told of their right to speak with Mexican consular officials after being arrested in Texas. Under the international agreements at issue, they had to be given the opportunity to meet with Mexican consular officials within 72 hours of arrest. In fact, the defendants confessed within about 3 hours after arrest to the killings for which they were eventually sentenced to death (a point made by the att'y for Texas). The advice that the defendants said the Mexican consular officials would have given them was (a) don't confess to anything, and (b) talk to a lawyer before doing anything. But access to Mexican consular officials within the 72 hour period for the purpose of receiving sucn advice became moot once they confessed. And they had confessed before there was any violation of their putative right to consular access. Moreover, as Stevens pointed out, the defendants had received their Miranda warnings which more than covered the same ground as would any advice they might have received from the Mexican consulate.

There was some dispute about precisely what remedy the Int'l Court of Justice had ordered. During the argument, some said (Breyer seemed to push the idea) that the ICJ had just ordered the US to provide add'l hearings on the issue of prejudice. Scalia pointed out later that the ICJ had said that the conviction must also be vacated, and the Texas atty quoted the various provisions where the ICJ seemed to be intruding fairly deeply into the Texas criminal justice system. CJ Roberts and the Texas atty added some clarification on what the ICJ ordered and what it said was required. But everyone seemed to agree that the ICJ was off the reservation if that's what they meant. Any violation of the right to consular access, even if it occurred, just couldn't get you that far without a showing of prejudice.

As for the additional hearing on the issue of any prejudice that might have resulted from the failure to advise the defendants of their right to consult with Mexican consualr officials, Stevens said that he agreed that the defendants were entitled to consular access and that Texas was required to provide it, but that the defendants had already received more than enough process on the issue of "prejudice" and that the lower courts had found that there was none. Further hearings on that issue, he suggested, were a waste of time. So any remedy that might be ordered, even if defendants won, would have no practical consequences.

There are a lot of issues in this case that various professors might like the SCOTUS to address. But there is no particularly good reason for the SCOTUS to reach them where, at as practical level and on its odd facts, this case is about nothing.

An Edjamikated Redneck said...

Maybe I am over simplifing this, but:

If the Senate has ratified a Treaty the President has signed, and the President then advises the States to follow that Treaty, where does the Court step in, unless there is a Constitutional challenge to the Treaty? Or, is that what happened?

But, if the Treaty ADDS a step (consular notification), which doesn't violate the Constitution, how can there be a challenge?

I also saw a question above I would like to see the answer to: How does this affect illegals?

I can understand that if a foreign national is placed under arrest their country needs to be notified, but if the arrestee is an illegal, how does that play to the treaty, since, technically, the illeagal should still be in their home country?

Anthony said...

I am a tax lawyer not an international lawyer, but I am of two minds on this.

Despite my belief in sovereignty, we did sign the treaty and it says what it says -- foreign nationals must have access to consular officers. That seems to suggest that the trial must be reheard.

On the other hand, I doubt that the named pettitioner, Mister Medellin was not really the person the Vienna Convention had in mind. It seems to me consular protection is most important for persons who are visiting the country and not imersed with the culture. Temporary residents and tourists for example. From what I understand, Medellin lived here since he was a small child.

The case is a tough one. Right winger that I am, I would rule for the petitioners and order a retrial after allowing consular consultation.

I would imagine that the Miranda warning would now include a right to consular consultation.

Simon said...

Richard:
"Under the international agreements at issue, they had to be given the opportunity to meet with Mexican consular officials within 72 hours of arrest. In fact, the defendants confessed within about 3 hours after arrest to the killings...."

Sure, but what do we think of non-Mirandized confessions? I mean, do we usually think that it's a moot point that a defendant wasn't apprised of their rights if they confess?

Zeb Quinn said...

The case is more about who says what the law is. Do you want the answer to be the President?

This case is more about that. The law ought to be that aggrieved state court defendants need to preserve the record below and appeal the treaty issue. Not that the president is embued with the power to order the states to comply with the treaty. Yeah,this case.

But ultimately, in the next case, isn't the issue going to be about whether treaties and, derivatively, international tribunals, can be empowered to determine what US states' criminal laws and punishments are to be? Isn't that an even more interesting question?

Simon said...

By the way, here's the opinion below.

MadisonMan said...

It consular counsel is required, maybe there should be a law that a consul is required in any city with a population exceeding some number x. Think of the jobs this would generate. Or is the burden to be placed on the state to fly citizens of, say, Slovakia from rural Utah -- or wherever they're arrested -- to the nearest Consul?

hdhouse said...

Richard Dolan said...
At one level, this is a case about nothing. The case involved the right of Mexican nationals (who had been raised and gone to school in the US) to be told..."

I'm of the mind that length of time in the US has nothing to do with this. and if you think about it, it can't. i'm not even sure that given the present state of immigration illegals might not take a bite out of this apple.

Ann Althouse said...

I think the remedy begins with a determination of whether there was prejudice in not telling him his rights. He confessed within 3 hours and the requirement for getting in touch with the consulate is 72 hours. All they would have done is advise him not to confess and to get a lawyer. He had a lawyer.

Richard Dolan said...

Simon: "what do we think of non-Mirandized confessions?"

That's a routine question of purely domestic law, and is fact-specific. Stevens says that they got their Miranda warnings. He doesn't say whether it was before or after the confession (or if he did, I missed it). In all events, if there were a problem under Miranda, the confession would have been thrown out on those grounds and the case would never have gotten this far.

JohnTaylor88 said...

The President's order is only aimed at the states, and the treaty is (I think) not self-enforcing, so that suggests that a statute is needed to enforce the treaty.

Doesn't that depend on what "self-executing" means?

The case is more about who says what the law is. Do you want the answer to be the President?

In the case of executing our treaty obligations, I do not see why not! He can make executive agreements, which are binding law, and displace state law in settling claims disputes that touch upon American foreign policy. He is the Chief Diplomat, after all, and has constitutional foreign affairs power. Not to mention the Take Care Clause arguably obligated him to do something procedurally independent of going to Congress.

I think the remedy begins with a determination of whether there was prejudice in not telling him his rights.

Isn't that all the President said that Texan courts should do? If so, where is the diabolical encroachment on separation of powers and principles of federalism the Washington Post is whining about?

Anthony said...

hdhouse--

Leaving aside issues of federalism, soveriegnty and international law, I think that the issue of time is extremely relevant with respect to Mr. Medellin. To my inexpert intuition, it would seem that the purpose of the Vienna Convention is to protect individuals who are visiting another country from not understanding that country's criminal law and legal culture.

In the case of Mister Medellin, having lived in the US since he was a child, gone to school here, and grown up in the culture, he would be more likely to understand the right to silence (just from watching Law & Order) right to counsel etc. Someone who just crossed over from Mexico or a French tourist might not.

hdhouse said...

Ann Althouse said...
"All they would have done is advise him not to confess and to get a lawyer. He had a lawyer."

so isn't the action against counsel for ineffectual defense? i read where he was cutting a deal so that may explain the confession if true.

this is a mess. you lawyers!!! damn you all....the world court decision will be posted in every coffee shop next to a courthouse from end to end of this country.

this is what we in advertising call an "oh brother" moment.

Simon said...

hdhouse said...
"[T]he world court decision will be posted in every coffee shop next to a courthouse from end to end of this country."

Why? It was issued in 2004, so what's changed?

hdhouse said...

simon...now that there is a real deal case it is mainstreamed not researched. even fred thompson might become familiar with it...not so much the WC case but the ramifications here.

There are dockets filled with the effect of this decision...so you have any idea how many State of New York v. Gonzales whe have here? (i'm speaking figuratively) and everywhere else....ohmygod.

sean said...

Maybe I'm missing something, but this doesn't seem like a hard case to me. I'm curious why Prof. Althouse thinks it is.

The treaty isn't self-executing, so it isn't "the law of the land." The president's memo, or order, or whatever, is just a nullity, because he has no constitutional power to make laws. It's the same as if the president ordered the states to do something under the commerce clause, or the equal protection clause. (In contrast, the president could, for example, exercise various military powers to order state governments to do things, since he is the commander-in-chief, but that isn't relevant here.)

Since the treaty isn't self-executing, the ICJ has no power to give orders to U.S. courts. We are sovereign and take orders from no one.

It would be more interesting if Congress had passed a law directing state courts to follow ICJ rulings, because then Congress would be using a treaty to create for itself a power it generally didn't otherwise have, i.e., the power to re-order state court procedures. My recollection is that the courts have generally held that treaties can be used in this way, i.e., to expand Congressional power, though maybe not to the detriment of individual rights (i.e., if an international treaty purported to give Congress the power to regulate hate speech). But this is a hypothetical not applicable to the instant case.

Kirk said...

MM,

I think it should be the consular officer who travels to wherever the detainee is, at the C.O.'s own expense.

I have a friend who, for a while in the 90's, was a consular officer w/the US Embassy in Pakistan. One of his duties (besides collecting the bodies and personal effects of those State Department people killed in that car bombing) was visiting US citizens who were in prison in Pakistan. I'm quite certain that the government of Pakistan did not pay the US government for his time in doing so.

hdhouse said...

sean and all...

don't you think the issue is going to boil down to the president and the senate ascribing to a treat (conference) and utilizing the international court for disputes of one sort or another, then up pops the devil?

I look now at this as something of the trickle down effect..the international court rains on our legal system via a treaty and the lower courts, dead in the way of this landslide, just have to cope.

look at it from bottom up, some kneejerk local court (not specifically this case but you get the idea) in reverse, is telling the international court what it can and cannot dictate...tail wags dog...and if the lower court appeals...as is partly the case here although not by specific party....what is the supreme court's recourse if it decides NOT in favor of the international court. what happens then.

damn you lawyers for not thinking it through both ways!

Luckyoldson said...

just as long as he doesn't mind the leaders of other nations doing the same.

It's a "what's good for the goose..." kind of thing...

Too many jims said...

Lucky said. . .just as long as he doesn't mind the leaders of other nations doing the same.

It's a "what's good for the goose..." kind of thing...


I actually think the goose/gander argument is more persuasive if the President had not acted. If he had not acted (and assuming that Congress would not have passed a statute) or if the Supreme Court abrogates his action, the U.S. is failing to follow through on its obligations under a treaty. If we walk away from those obligations because of separation of powers or federalism I don't know why any nation would honor any treaty that the U.S. has ever signed (well other than we are currently the richest(or one of the 3 richest countries) and most powerful country).

Having said that, I found it interesting that Texas appears to concede that if Congress had acted, it wouldn't have an argument. If that is so, it will be an interesting (if somewhat perverse) race to see if Congress can pass a bill addressing the matter before Texas is able to execute the guy.

Joe said...

If that is so, it will be an interesting (if somewhat perverse) race to see if Congress can pass a bill addressing the matter before Texas is able to execute the guy.

Wouldn't the constitutional prohibition of ex post facto laws make this irrelevant. (Besides, if anyone deserves the death penalty, it's this guy.)

Cedarford said...

The case is a tough one. Right winger that I am, I would rule for the petitioners and order a retrial after allowing consular consultation.

I would imagine that the Miranda warning would now include a right to consular consultation.


I would love to see this backfire on Ginsburg, Breyer and their fellow cabalists that push Transnationalism, Open Borders, and supremacy of International Law over the Constitution.

Istead of just adding a blurb in the Miranda warnings, I want to see the Court say that the citizenship and immigration status of each person arrested be ascertained by cops - so that ALL treaties with foreign nations be honored with THEIR arrested citizens here - not just the Vienna Convention. So we can cover reciprocal jailing agreements in other treaties, agreements that our drug punishments in smuggling cases match our treaty deals, if Status of Forces agreements apply if the alien is a member of their country's military, etc.

It's not just about alien "rights".

It's also about law enforcement not knowing if the arrestee they have has committed terrorism or has felony warrants out on them in their native country. The word is out in Latin America and the ME that if you commit a serious crime and have the resources if you think the law is closing in on you - flee to the USA, get a fake SS# and fake ID in another name.

Ironically, Mexico, you would think, having the most fleeing criminals, would want to "bring them to justice." But Mexico's attitude appears to be that if a child rapist or such goes Norte, they are the Gringos problem and out of Mexico's hair.

So I hope to see the conservatives side with Ginsburg. But require that immigration status and nationality be verified of all arrestees, relevant treaty statutes on foreign military and civilian criminals be honored with a phone call to counsel. And to ICE if the person is in illegal status. All, of course, to comply with Ruthie's beloved Treaty, International Law, and World Court rulings obligations.

And force Ginsburg and Breyer to swallow a bitter pill regarding the illegal alien sanctuary movement's and immigrant lawyer's lobby's drive to bar cities and state law enforcement from asking each arrestee their status.

Cedarford said...

Oh, and it would also be satisfying to hang Open Borders El Presidente Jorge Arbusto on his own petard.

Thank you, Jorge! No more sanctuaries, and thanks to your stepping in to a Constitutional issue you should have avoided like Paul Bremer and Brownie - maybe cops will start asking if a person is legally in this country despite your best efforts to keep the flood of cheap labor coming in without law enforcement scrutiny.
Shame the two young girls had to die so horrifically - but if it results in us finding out who the illegals are that are arrested and check their native country for crime and terrorism - maybe the girl's lives aren't completely wasted.

Every call to embassy counsel should be accompanied by a request for embassy counsel to see if the illegal is wanted for anything in their home country, and what arrangement they wish to make with American Homeland Security's ICE Dept for their eventual repatriation..

Revenant said...

All the reports I've seen here indicate that the treaty in question is not self-executing.

If it isn't self-executing, and neither Congress nor Texas passed any laws implementing the relevant portions of it, then how can there be any possibility that the treaty holds power over Texas?