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Charlie Savage | Court Rebukes Bush in Death Penalty Case •
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Supreme Court Rules Bush Exceeded His Powers
By David G. Savage
The Los Angeles Times
Wednesday 26 March 2008
Saying he does not have "unilateral authority" to force states to comply with an international treaty, justices vote 6-3 to reject presidential order to reopen cases of foreign nationals.
Washington - The Supreme Court rebuffed President Bush on Tuesday for exceeding his powers under the law, ruling he does not have the "unilateral authority" to force state officials to comply with an international treaty.
The Constitution gives the president the power "to execute the laws, not make them," said Chief Justice John G. Roberts Jr. Unless Congress passes a law to enforce a treaty, the president usually cannot do it on his own, he said.
The 6-3 decision was a rare defeat for Bush in the courts, and it came in an unusual case that combined international law, foreign treaties and the fate of foreign nationals condemned to die in Texas, California and several other states.
In a surprise move three years ago, Bush intervened on the side of the Mexican government and said Texas prosecutors should reopen the cases of Jose Medellin, a Houston murderer, and several others serving death sentences. Bush cited the Vienna Convention, which obliges signing countries to notify each other when one of their citizens is arrested and charged with a serious crime. Mexico said American prosecutors failed repeatedly to give notice when Mexican natives were charged with capital crimes.
In rejecting Bush's order Tuesday, the high court, led by its conservatives, took the opportunity to make a strong statement on the limits of presidential power.
Roberts cited the "first principles" of America's Constitution. "The president's authority to act, as with the exercise of any governmental power, must stem either from an act of Congress or from the Constitution itself," Roberts said. "[G]iven the absence of congressional legislation . . . the non-self- executing treaties at issue here did not expressly or impliedly vest the president with the unilateral authority to make them self-executing.
"It should not be surprising," Roberts added, "that our Constitution does not contemplate vesting such power in the Executive alone."
The decision upholds Texas prosecutors and judges who refused to reopen the cases of the Mexican nationals on death row there. By implication, it also blocks a challenge on behalf of several dozen Mexican natives who are serving death sentences in California.
The three dissenters, led by Justice Stephen G. Breyer, took the view that treaties are part of American law once they are ratified by the Senate.
At the White House, Press Secretary Dana Perino said the decision was a defeat, but on a narrow issue. "We're disappointed with the decision, but we're going to accept it, and we're going to be reviewing it in regards to the impacts that it may have," she said.
Since 2001, Bush has claimed the power to run the war on terrorism without interference from Congress or the courts. He and his White House lawyers have said his powers as commander in chief of the armed forces allow him to act unilaterally to protect the nation's security.
Citing this authority, he ordered the military to imprison "enemy combatants" without charges or hearings, and he told the National Security Agency to intercept international phone calls from suspected terrorists without seeking judicial warrants. He also has claimed the power to order harsh interrogations of suspected terrorists without oversight from Congress or the courts.
Civil libertarians have gone to court repeatedly to challenge Bush's actions, but they have won few clear victories.
Four years ago, the high court said war did not give the president a "blank check," but the justices stopped well short of forcing major changes at the military's prison at Guantanamo Bay, Cuba. Another challenge to that prison is pending before the court.
Pepperdine law professor Douglas W. Kmiec said Tuesday's opinion in Medellin vs. Texas may be "an epitaph for an administration that has sought to deploy all sorts of means of embellishing presidential authority." Bush's order was "clearly an executive overreach," said Kmiec, a former Reagan administration lawyer, and he called Roberts' opinion "a strong reaffirmation of the role of Congress in treaty making."
But liberal advocates faulted the court for undercutting an international treaty.
"The most disturbing aspect of this case is that Chief Justice Roberts is signaling that the United States can simply ignore its obligations under international treaties," said Kathryn Kolbert, president of People for the American Way. "It's a ruling that will further erode our standing in the world."
Donald Donovan, a New York lawyer who represented Medellin, said the court should have stood behind Bush's effort to enforce U.S. legal commitments. "Having given its word, the United States should have kept its word," he said.
Mexico does not have the death penalty, and its officials said they could supply lawyers for those who were charged with capital crimes in the United States. When Mexico sued over the issue, the International Court of Justice in the Hague ruled in 2004 that the United States had violated the Vienna Convention. Its ruling named 51 Mexican nationals.
It was unclear how that ruling could be enforced. Bush, a former Texas governor, told Texas officials that they had to abide by the ruling of the International Court. He said he did so "pursuant to the authority vested in me as president by the Constitution and laws of the United States."
Texas prosecutors balked and decided to fight Bush in court. In Tuesday's opinion, Roberts concluded first that the Vienna Convention is not "binding federal law," since Congress had not passed a law to enforce it. And in such cases, the president had no authority to force state or local officials to comply with the treaty or the ruling of the International Court.
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Roberts' opinion. And Justice John Paul Stevens concurred in the result, saying the treaty at issue did not have the force of law in this country.
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Court Rebukes Bush in Death Penalty Case
By Charlie Savage
The Boston Globe
Wednesday 26 March 2008
Conservatives check expansion of executive power.
Washington - In a rebuke by President Bush's fellow conservatives, the Supreme Court yesterday declared that Bush does not have the power to order a state to comply with a ruling by the International Court of Justice.
The 6-to-3 decision rejecting Bush's attempt to force Texas to give a new trial to a Mexican citizen on death row pitted the court's conservative majority, including two Bush appointees, against most of its liberal members in a test of the president's power, the relationship between the federal government and the states, and the nation's obligation to follow international law.
For Bush, who has sought to expand the power of the presidency, especially over matters involving foreign affairs, the decision was a particularly harsh blow. Chief Justice John Roberts, whom Bush named to the court in 2005, declared that the president had gone too far.
As a matter of "first principles," Roberts wrote in the majority opinion, "the president's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.' "
Roberts declared that in this case Bush had neither source of authority in his favor, citing a 1952 case that struck down President Truman's seizure of steel mills during the Korean War, a landmark precedent laying out the limits of presidential power.
Yesterday's case involves a Mexican named Jose Ernesto Medellin, who was sentenced to death in Texas for his role in the rape and murder of two teenage girls in 1994. Local authorities did not inform Medellin that he had a right to contact the Mexican Consulate when he was arrested or during his trial and initial appeal.
Under an international treaty called the Vienna Convention, foreign nationals who get into legal trouble in another country have a right to contact their home country's representatives to seek assistance.
A related treaty also allows the International Court of Justice, a Hague-based tribunal set up by the United Nations that is also called the World Court, to resolve disputes over alleged violations of the treaty.
Mexico sued the United States before the World Court, and in 2004 the panel ruled that 51 Mexicans on death row in various states, including Medellin, had a right to have their cases reviewed by American courts to see whether a new trial was necessary.
Although Bush disagreed with the ruling and pulled out of the treaty, ending the World Court's jurisdiction over consular-rights disputes involving the United States in the future, in 2005 he ordered states to grant new hearings for the 51 Mexicans anyway as a matter of foreign policy.
But Texas refused to give Medellin a new hearing, citing a state law that limits appeals in death-penalty cases. Medellin appealed to the Supreme Court, setting up a momentous test of several controversies that have divided legal thinkers in recent years, including the proper role of international law in domestic legal disputes and the scope of presidential power.
In yesterday's decision, justices on both sides of the Supreme Court's ideological divide signaled that their interest in international law trumped their interest in executive power. Conservative justices who have been sympathetic to Bush's expansive claims of power in matters of national security abandoned the White House in order to curtail the authority of international law, while liberals who have criticized Bush in other disputes largely lined up with the administration.
In the majority opinion, Roberts wrote that even though the United States had ratified the treaty during the Nixon administration, it was not binding unless Congress separately enacted a domestic statute saying the same thing. Bush, he said, was illegally trying to make law by enforcing the treaty on his own, without congressional legislation.
Roberts was joined by the other four most conservative members of the court: Samuel Alito, Antonin Scalia, Clarence Thomas, and Anthony Kennedy. Justice John Paul Stevens, who usually votes with the court's liberals, also sided with the conservatives but wrote a separate opinion urging Texas to obey the World Court anyway.
Bush found unusual allies in three liberal justices: Stephen Breyer, Ruth Bader Ginsburg, and David Souter. In a dissent written by Breyer, the justices argued that the treaty was binding even without separate legislation by Congress, and so Texas should comply with Bush's attempt to enforce international law.
"President Bush has determined that domestic courts should enforce this particular [International Court of Justice] judgment," Breyer wrote. "And Congress has done nothing to suggest the contrary. Under these circumstances, I believe the treaty obligations . . . bind the courts no less than would" an act of Congress."
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