Court rebukes Bush in death penalty case
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. 