CT Blue

I just finished reading the decision in Medellin v. Texas, which is being billed as a defeat in the Supreme Court for George Bush, because the court, the conservative justices in the majority, rejected a Bush bid for expanded presidential powers. Since this is the most political court in our history, I smelled a rat. The court, did indeed, rule against a Bush attempt to assert presidential power, but…not so much that Bush will care.

First, the background. The United States Constitution provides that treaties are the Supreme Law of the Land. I.e, they always trump state laws, at least that’s what it says on the surface. The Vienna Convention, to which the United States subscribes, provides that foreign nationals charged with certain crimes must be informed of their right to consult with consular officials. The United States also was a party to a Protocol by the terms of which it agreed to abide by the decisions of the International Court of Justice (ICJ). Medellin, a Mexican national, committed a murder here in the United States. He was not informed of his rights. The International Court of Justice found the United States to be in violation of its treaty obligations, and in essence ordered a do-over, what we in the legal biz call a remand. Shortly after that decision the U.S. Supreme Court, in a case in which none of the parties to the ICJ case were involved, ruled that the provisions of the Vienna Convention did not overrule state procedural laws. After the ICJ ruled, George Bush ordered state courts to follow the ICJ’s instructions. In other words, he implicitly overruled the Supreme Court. To make sure the problem never cropped up again, he thereafter withdrew this country from the ICJ protocol, but that’s another story.

So, the court was faced with two issues.

First, do the state courts have to follow an ICJ decision. In effect, does the ICJ trump the Supreme Court, which had already ruled, and;

Second, if the state courts ordinarily would not have to follow an ICJ decision, can the president make them do so?

Now, the first of these questions is complicated, so I will admit up front that I’m simplifying somewhat. The court ruled that the courts of the United States don’t have to take instructions from the ICJ, because the treaty does not clearly require them to do so, and Congress has never required it. The decision is laden with signs of petty in-fighting with the dissenters, whose analysis is grossly misrepresented. It is not without its moments, however. I was somewhat amused by the Court’s shock at the fact that, were it required to follow the dictates of the ICJ, such a decision “is not only binding domestic law but is also unassailable”. This from the court that brought us Bush v. Gore.

So in this part of the decision the court was able to do a couple of things that warm the cockles of the conservative heart. It was able to assure the execution of some Mexicans and it was able to subvert international law. It was also able to make sure its own decisions remained unassailable, something designed to warm the cockles of its own heart. It goes without saying that Bush’s solicitor general agreed with the court on this part of the case. The Administration simply argued that if the president wanted to, he could make the law and the courts had to genuflect. Since the Supreme Court has somewhat more institutional self respect than Congress, that was not an argument likely to be warmly received.

In order to get to the presidential power issue, the court had to resolve the first issue the way it did, otherwise the powers issue becomes moot. Once it had done so it had little choice but to rule against Bush. Neither the dissent nor Justice Steven’s concurrence reaches the Bush issue, the dissent pointedly refusing to do so.

Nonetheless, the court does use some strong language about presidential powers, but what does it amount to? First, it hits George Bush where he will be hurt the least. Does he really care if the nation’s courts follow international law? Not likely. More importantly, does this decision have any practical consequences so far as George Bush is concerned? Decidedly not. It is easily distinguishable from the many other situations in which he is trampling on the Constitution and he has less than a year in office, not enough time for any ruling against presidential powers to directly affect him. What the court has done is write brave language that it can choose to apply or not, depending on who wins the next election. For make no mistake about it, the courts will suddenly find that presidential powers barely exist if a Democrat is elected in 2008. On the other hand, should McCain be elected, the brave words in this decision will be quoted only in dissents. Meanwhile, the court gets to look like its taking a principled position against encroaching presidential powers, when the real action is in the evisceration of international law.