Conservatives, Liberals, and American sovereignty
- The U.S. Supreme Court yesterday heard arguments over whether a foreign
("international") court could order American courts to do certain things.
President Bush is attempting to order Texas state courts to obey a foreign
court. But those pesky conservative justices, Scalia and Roberts, aren't
buying the sale of U.S. sovereignty, whereas those defenders of human
freedom, Breyer and Ginzberg, can't figure out what the problem is, and
think the foreign court giving orders to American courts is a socko idea.
Bottom line: Real Conservatives are the natural allies of rational
libertarians (Bush is not a conservative), and the Republican Party of NH is
where every rational libertarian in the Free State should be registered and
active. If you want to vote libertarian in a general election, feel free to
do so, but when it comes to political party activism and actually winning
elections, don't leave the New Hampshire Republican Party to the people who
have run the NH GOP over the cliff and caused the present disaster (lost
governorship, lost both Congressional seats, and possibly soon to lose
Sununu's seat unless the increasing number of libertarians rally to help
him, or unless Ron Paul moves to the Free State and runs for the seat as a
Republican). ---Tim Condon
October 11, 2007
Bush, Texas Court Tussle Justices to Decide
If State Must Heed
By *JESS BRAVIN*
October 11, 2007; Page A8
WASHINGTON -- The Supreme Court heard arguments yesterday about whether
President Bush can order state courts to obey a ruling from the
International Court of Justice, a test of executive power that could affect
the president's power to conduct foreign affairs.
Since the terrorist attacks of Sept. 11, 2001, the White House has
repeatedly claimed authority to act without approval from Congress or
courts, especially in areas of national security such as wiretapping and
terrorism trials. Congress and the Supreme Court have reined in some of
� * What's Happening:* The Supreme Court heard arguments on a case that
tests the president's foreign-affairs power.
� * The Question:* Can the president, following the decision of a U.N.
court, force Texas to hold an additional hearing before executing a Mexican
� * What's Next:* A decision is expected by June.
The question now facing the court is whether the president, following the
decision of the United Nations court, can force Texas to hold additional
hearings before executing a Mexican national convicted of the rape and
murder of two girls in 1993.
If a decision goes the government's way, the case could further concentrate
power in the hands of the executive. "There's a potential, at least, if the
court gives the solicitor general everything he asks for, that the president
can rewrite state law to conform to his view of the best foreign policy,"
said Michael Ramsey, a law professor at the University of San Diego.
At issue is the 1963 Vienna Convention on Consular Relations, which requires
that a home nation be notified when one of its citizens is arrested abroad.
It also states that the arrested traveler should be advised he can contact
his consul for assistance. The U.S. ratified an annex giving the
international court "compulsory jurisdiction" to decide disputes over the
The State Department insists foreign governments follow the treaty when they
detain Americans, but local authorities in the U.S. have a spotty record of
compliance, leading to complaints against Washington at the International
Court of Justice. In 2004, The Hague ordered the U.S. "to provide, by means
of its own choosing, review and reconsideration of the convictions and
sentences" of 51 Mexicans on death row, to determine if they had been
prejudiced by the lack of consular assistance.
The ruling set off a debate within the Bush administration. It initially
concluded the ruling was unenforceable. But with the U.S. under criticism
abroad for its perceived disregard of international obligations, Secretary
of State Condoleezza Rice persuaded the president to reverse course,
officials said. In February 2005, he issued a memorandum directing state
courts to comply with the ruling -- while simultaneously withdrawing from
the agreement to let The Hague decide any future such cases.
MORE ON THE CASE
[image: [More on the Court]] � Oral argument
� International Court of Justice
� U.S. government's
� Additional briefs and related
� American Society of International Law resources
Texas accused the president of exceeding his authority, and the state's
Court of Criminal Appeals agreed. The resulting Supreme Court case pits
Texas, backed by 28 other states, against its former governor, uncomfortably
aligned with condemned inmate Jose Ernesto Medellin, a Houston gang member
who grew up in the U.S. The European Union and dozens of other foreign
governments filed friend-of-the-court briefs siding with the Bush
On the right, Chief Justice John Roberts and Justice Antonin Scalia could
barely contain their disdain for Mr. Medellin's position: that the
international court compelled Texas to act. "Are you telling me that the ICJ
judgment empowers either federal or state courts to do things which their
laws do not permit them to do?" asked Justice Scalia. Donald Donovan, the
attorney representing Mr. Medellin, struggled to find words suggesting that
the world court's order already was authorized by the U.S.
Liberal Justices Ruth Bader Ginsburg and Stephen Breyer, meanwhile, said the
matter wasn't so complicated. "As I read the Constitution, it says 'all
treaties made...under the authority of the United States shall be the
supreme law of the land, and the judges in every state' -- I guess it means
including Texas -- 'shall be bound thereby,'" Justice Breyer said.
The case may come down to the opinion of Justice Anthony Kennedy, who often
strays from his conservative brethren to embrace the significance of
international law. Justice Kennedy's questions didn't indicate full
agreement with either side. A decision is expected by June.
*Write to *Jess Bravin at jess.bravin@...6
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