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Wednesday, May 25, 2005

Medellin and Garamendi

With the Supreme Court DIGging, (Denied as Improvidently Granted) Medellin, the big question is what the power of the President is to issue an order compelling Texas to give Jose Medellin his rights to contact his consulate under the Vienna Convention. In the opinions (a per curiam, a concurrence by J. Ginsburg, and dissents by J.'s O'Connor, Souter, and Breyer) issued on Monday, no Justice discussed whether the President had this power, but sent the case down because of newly complicated issues, and because Mr. Medellin may be able to get his relief in state courts.

But Texas has been clear that they don't think the President's order is valid, and that they are not going to comply. So, can the President compel the state?

A relevant case is last term's American Ins. Assoc. v. Garamendi. There, The Supreme Court, 5-4, struck down a California law as preempted that conflicted with a Presidential policy regarding the paying of insurance policies confiscated by Nazi Germany. Following the war, the German government established a foundation funded with 10 billion deutsch marks to compensate the companies' victims during the Nazi era. California passed a law requiring insurers to disclose information about all policies sold in Europe between 1920 and 1945. Since the California statute interfered with the federal policy, the Supreme Court found it preempted.

At first blush, Medellin looks easy--the President not only has a foreign policy objective, but an actual pronouncement telling Texas exactly what should be done. Preemption of the otherwise-adequate procedure defaul trule looks like an easy call.

But then there's Youngstown (another case with a whole lot of opinions) which held that "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution." So the question is whether the Vienna Convention on Consular Relations somehow gives the President authority to issue orders to ensure compliance.

The language of Garamendi makes the issue sound not very hard. After stating the obvious that at some point state efforts run into conflict with federal foreign policy and are preempted, Justice Souter writes:
Nor is there any question generally that there is executive authority to decide what that policy should be. Although the source of the President's power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the "executive Power" vested in Article II of the Constitution has recognized the President's "vast share of responsibility for the conduct of our foreign relations." While Congress holds express authority to regulate public and private dealings with other nations in its war and foreign commerce powers, in foreign affairs the President has a degree of independent authority to act.
Since the President has power to make executive agreements, and these agreements preempt conflicting state law, the President can preempt.

But Medellin is not this easy. The characterization of the memo that President Bush sent to Texas is hard, and Garamendi was 5-4. It's certainly possible that a Justice in the Garamendi majority sees a difference (as I do) between a valid Executive Agreement containing preemptive power and the President issuing an order directing a state to waive a procedural default. But that, to me, is the issue in Medellin Round II.


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