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Wednesday, March 09, 2005

More on the Medellin AntiClimax

Marty Lederman at SCOTUSBlog reports on Texas' response to the President's order.

Julian Ku at Opinio Juris predicts that the Bush Administration's actions will cause the court to dismiss Medellin's appeal. This, however, he questions due to the Texas response.

The question seems to be what the Bush memo should be considered for purposes of preempting the state procedural statute. In Garamendi, the Supreme Court held 5-4 that an executive agreement preempted a California state insurance statute, and I can't see how the Court could distinguish the current case from Garamendi, unless, as Professor Ku notes, this is not an executive order.

So, it seems, the decision we were all so excited for will have to wait. Probably a good move for the White House, however, as Justice Kennedy, as Phocion notes, cannot be trusted. :)

UPDATE: Julian Ku has information, on good authority, that the U.S. may withdraw from the optional protocol of the Vienna Convention.

UPDATE: It's true, the U.S. has officially withdrawn. But, as Marty Lederman notes, "There is some question whether today's treaty "withdrawal" was effective because the President acted alone, without the assent of the Senate and/or the Congress." See the post for his whole take.

1 Comments:

Blogger JMoore said...

Cross-commented at Opinion Juris:

After reading Garamendi, I'm not so sure the case is controlling. It is obvious that the president can pre-empt the TX state law that says cases cannot be reopened. However once the law is pre-empted, can he then ORDER the court to rehear? The case says nothing about this(as far as I've read).

Like you(Julian Ku), I cannot recall any precedent for this action. If the court drops the case, do you think this would strongly imply that such a presidential power exists? In any event, the lack of clarity on this issue leads me to believe the court will hear the case. If so the court will almost certainly have to consider the validity of a presidential order along with the original questions presented. In that sense we're getting some pretty loaded precedent out of this one case.

Any thoughts?

4:33 PM  

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