The last bastion of liberal thought, the Wall Street Journal, profiles R. Ted Cruz, solicitor general of the Nation State of Texas and why Texas puts so many more people to death than anywhere else. One particular exercise, dealing with a condemned defendant named José Ernesto Medellin has created a particular problem.
After Texas courts imposed and affirmed the death penalty for Medellin, a citizen of Los Estados Unidos de Mexico, his lawyers went to the International Court of Justice at the Hague to seek recourse under the Vienna Convention, which requires that “a consular post to be notified if a citizen of its nation is arrested.”
Before you jump to the conclusion of who cares what some jerks in the Netherlands has to say, consider what this means for Americans sentenced to death by a court in Somalia. It works both ways, and if we don’t respect treaties as applied to other nations, they won’t respect them as it applies to ours.
In an ironic twist of fate, President Bush ordered Texas to revisit Medellin’s punishment and Texas refused.
The Texas court rejected Mr. Bush’s order on constitutional grounds. In an amicus brief filed in Medellin v. Texas, the Bush administration holds that the court’s action undermines presidential authority to determine “how the United States will comply with its treaty obligations.”
According to Ted Cruz, Texas has pretty simple view of the situation.
“When a sentence is legally and justly imposed, the state of Texas carries it out,” says Mr. Cruz. “And in the judgment of the Texas Legislature and in the judgment of the significant majority of Texans, the death penalty is fundamentally a matter of justice.”
Texas doesn’t take its marching orders from anybody, including the Hague or the President of the United States. It is a sovereign state and can make up its own mind. Texas doesn’t need anyone’s permission to put people to death. And it doesn’t need to answer to anyone for its choices.
This presents a rather interesting problem, one that has caused such opposites on the political spectrum as John Yoo and Erwin Chemerinsky to find themselves on the same side. What does the United States do when Texas says they just don’t care what anyone else thinks about the way they put people to death there?
As Baze v. Rees is pending before the Supreme Court, Ted Cruz wrote an amicus brief for Texas stating that they’re fine with the three-drug cocktail used to execute people in Texas. What if the Supremes rule against the use of the cocktail and Texas chooses to use it anyway? Clearly, Texas has decided that the ICJ doesn’t trump their courts. The President has no business telling Texas what to do. Cruz takes the position that the Texas legislature, reflecting the will of Texans, is all the authority needed.
“The Constitution gives democratically elected legislatures the principal responsibility of making policy determinations,” says Mr. Cruz. “And before the Supreme Court, Texas has frequently been defending the proposition that the federal courts should respect the determinations of the democratically elected legislatures.”
Is it only a matter of time before Texas decides that it has had enough of outsiders meddling in its business? You gotta love Texas, if for no other reason than that it has been able to accomplish something that no one would have ever believed possible: “It is an unusual case that features Ed Meese and Jerry Brown, now attorney general of California, on the same side.” I’ll say.
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This article is best filed somewhere in the WSJ is losing its credibility category, it was a very, very sloppily written article. The WSJ didn’t bother to fact check. At one point the article was averaging one factual error per paragraph, including little things that a quick Google check would reveal (# of states w/ the DP in the article is off by 4) facts that anyone who has taken civics in Texas would know (the AG is the state’s top lawyer, not the SG), and the outright scurrilous (those opposed to the DP don’t care about victims, never mind organizations like MVFR or that the NCADP’s current chairman is a murder victim’s family member).
There are good reasons why the international court of justice should not trump U.S. law, even if the president says so.
That said, Texas is probably in the wrong, here. The circumstances probably call for an appeal into the US federal court system. Let them (up to the SCOTUS, if appropriate) deal with the issues of law, including the treaty.
Also, can’t Bush commute the death sentence? Wouldn’t that be a clearly legal way to stop the execution? Maybe he could even commute it conditionally, so that if the ICJ rules for Texas, they can execute him after all.
Aside from the multitude of procedural problems raised by your comment, why do you say that there are good reasons why the ICJ should be ignored?
I’m not a lawyer, so I can’t comment on the procedural issues.
The reasons I feel the ICJ should not trump US law is that, as corrupt as the US government is, it has nothing on the UN. You’ve often noted that how US government officers seem to forget they represent the people and are empowered solely by the people’s consent. Officers of the UN are even more likely to forget that, given the extra layer between them and the people and the nondemocratic nature of some of the member countries.
While Texas is not a sovereign state, the US is a sovereign country, so it has no need to take marching orders from the Hague.
When traveling abroad, one tacitly accepts the laws of another country (except for ambassadors, etc, who have immunity). There are good reasons for foreign nationals to receive extra rights via reciprocation, those rights should be ensured by a (somewhat) normal legislative process, not by executive fiat.
Note that I don’t feel the ICJ should always be ignored, but that its powers should be limited, as needed, by US courts.
That said, further research puts Medellin on firmer ground, and makes Texas look even more crazy.
First off, the US Congress did apparently ratify the Vienna convention, which gave the ICJ jurisdiction on that issue. Thus, there is no executive fiat here; Texas simply wants to ignore the properly created law.
Further the ICJ was careful to not infringe on US sovereignty. All they did was order the US to “provide, by means of its own choosing, review and reconsideration of the convictions and sentences”. Thence, the pending SCOTUS case, which will presumably consider the rights of Medellin under the Vienna convention. In other words the ICJ ordered that the US do exactly what I thought it should do in my first post.
I think your analysis is pretty good. The difference with a court, even the ICJ (or especially the ICJ) when it comes to something like the Vienna Convention, is that sovereign nations (and their subdivisions) either honor it or cannot expect other sovereign nations to honor it in return. This may well prove to be a huge problem with regard to the Geneva Convention in the future, due to the way our country has chosen to reinterpret it in light of our preferred outcome.
Because of this inter-reliance between nations, if the US chooses only to honor its decisions when we agree with it, we can expect the same in return when it’s our nationals in other countries with some of their peculiar laws and punishments. Americans tend to be outraged by the way other countries treat our citizens, but we think that we are inherently right so that our laws, as applied to foreign nationals, are above reproach. Either everybody honors treaties, or there can be no treaties.
The twist here is that the United States, not Texas, is the signatory to the Vienna Convention. So what does that mean to Texas? Well, not much apparently. Ted Cruz’s position, that if the law is valid in Texas, that’s the end of the story, doesn’t allow for any room for the United States to fulfill its function in international relations. But the Constitution precludes the President from dictating the internal affairs of Texas, as it should, which is why this matter presents such a dilemma. Now it’s up to the Supreme Court to determine whether the Vienna Convention trumps Texas’ authority as a State to exercise its reserved powers without limitation. And then, will Texas listen?
Texas Win Could Cost American Lives
The Supreme Court has answered that age old question, when is a treaty not a treaty, in its decision in Medellin v.
Texas.