Listening to Bud Hedinger on Fox Radio today and yesterday,
http://www.540wfla.com/pages/bud_hedinger.html
podcast at:
he referred to the MEDELLIN V. TEXAS case currently before the Supreme Court as a case of the International Court of Justice versus US sovereignty.
All I can see is a dispute between US treaty obligations and States Rights.
Does anyone really take his ‘loss of sovereignty’ arguments seriously or is he just rabble rousing the stupid right constituency.
Three things:
(1) valid federal laws over-ride state laws
(2) US treaty obligations are federal laws
(3) those treaty obligations must be endorsed by a majority of the Senate, a gathering-together of representatives of the states.
Did the State of Texas accept the US Constitution when it entered the Union, or didn’t it?
My understanding of the issue is that:
The Senate ratified the Vienna Convention in 1969. One of the clauses in the treaty says that country A will notify country B when a citizen of country B is arrested or imprisoned in country A.
In Texas (and possibly other states like California) citizens of Mexico have been imprisoned or arrested without the Mexican embassy or consulate in the USA being notified.
Mexico won a ruling before the International Justice Court in the Hague saying that the US was violating terms of the convention.
Bush told Texas judges to revisit the case of one Mexican national who received the death penalty in Texas, and the Mexican government was not notified of his arrest or imprisonment.
The Supreme Court agreed with the Texas attorneys that Bush cannot tell Texas judges what to do.
My understanding has always been that ratifying an international treaty is just lip service, and until state or federal legislatures pass implementing legislation, the treaty is meaningless except as a statement of intent. I think this is a big problem with the legislative independence of each US state vs. the federal legislature being allowed to ratify international treaties. I’m not sure how it can be solved in the USA. Maybe some of our legal eagles have a solution in mind.
As far as I can see, it is still before the Supreme Court.
If that is so, then any treaty signed by the POTUS is not worth the paper on which it is written. Who then would trust a treaty obligation made by the US?
Giles, Pjen, I’m not a legal expert, so I’ll quote from this CNN articles on a similar case:
Germany sues U.S. in World Court over Arizona executions (cnn.com), November 13, 2000, By Raju Chebium
I’m puzzled by this too.
I’m puzzled because Australia has a similar constitutional structure:
(1) the states are sovereign entities, having been self-governing colonies (like New Zealand) before they entered federation.
(2) the states gave limited powers to the federal government.
(3) among those limited powers were treaty-making powers.
(4) federal treaties become federal law.
(5) valid federal laws over-ride state laws.
The result in Australia has been that the High Court has ruled that federal treaties over-ride state laws. I don’t see how, logically, you don’t get the same result in the US – though, of course, it’s partly a political matter, and (inevitably) supreme courts in federal states have to be partly political in their decision-making.
Here’s the way I understand it:
The US legal system is divided into two parts: Federal law and State law. Federal trumps State, where there is jurisdiction for that particular crime or offense.
The problem with death penalties, etc… is that things like murder are expressly State penalties, unless they’re committed somewhere that Federal law takes precedence (post office, federal courthouse, etc…)
And with the way that the Constitution is written, the Federal government has absolutely no legal standing to interfere in such things- the State is sovereign in that matter, regardless of what some treaty says.
If we had it otherwise, it would seriously undermine our form of government- the States would stand to lose so much power that anything like that would never fly.
Some treaties are self-executing (in which ratification of the treaty brings about binding obligations on the state party) and some treaties are non-self executive (which as you say leave it to the state parties to adopt whatever laws are necessary to carry out the obligations of the convention). I haven’t had a chance to look up this particular treaty, but I saw one news story that said that the obligation to inform a consular officer was a duty that was to be undertaken in accordance with the laws of the locality. (I’m guessing the intent is to respect that different countries have different laws regarding how long a suspect may be held incommunicado.)
I’m rather curious about the state sovereignty argument. Art VI of the Constitution reads:
On first blush, I don’t see how a state court could decide that it didn’t need to comply with a treaty. I agree with those who have said that the President cannot order a new trial in a state court, no more than the President has the power to order a new trial in Federal court, but it seems to me that the state governments have an obligation to see that the treaty is followed by “the judges in every state.” What is the counter-argument I am missing here?
First of all, of course it’s not about US sovereignty. Except insofar as some people consider that “sovereignty” means deliberately doing the opposite of whatever dem funny-talkin’ furriners say, just to prove we’re so badass we can get away with it. It IS a matter of STATE “sovereignty” vs. what happens when the government of the USA* does * agree with an international body, and who trumps who.
Yes, the reality IS that the President cannot “order” the judiciary authorities of the State of Texas to do anything. He holds the Executive Power of the Federal Government, not the Imperium over every person, chattel and action inside the US borders. The President when exercising his power to sign treaties, is subject first to the Congress ratifying the treaty and only then does the US actually bound to abide by it. THAT is not news, I should expect that the rest of the world understands that in more-or-less democratic polities, there’s always the risk that the treaty you negotiated in good faith will get kiboshed by the ratifying body.
Once that does get ratified, though, then there’s a different component coming into play: even though treaties go over state law, you need to establish some sort of procedural or jurisdictional mechanism to have it executed, if it’s going to apply to things beyond the purely Federal sphere.
If the President signed and Congress ratified a treaty about the rights of the criminally accused, being aware that the majority would be accused in state courts, it behooved them to enact the appropriate federal legislation containing the mechanisms to compel compliance at all levels. Federalism is a grand thing, but the idea that the US would sign a treaty about the rights of the criminally accused and then turn around and say “Oh, guess what, 90% of the criminal justice system in my country is not the jurisdiction of the government I represent, anyway” would be ridiculous. The obvious expectation in such a treaty is that it recognizes the rights of the criminally accused in ANY civilian court within the borders of a ratifying country. Now, of course, everyone ends up looking bad.
That has always been true. Treaties are utterly worthless (save as symbolic gestures) until such time as they have been ratified by the Senate.
Well, the Creeks, the Lakota, the Iroquois and a hundred or so other nations would tend to proclaim that no one in their right mind would trust a U.S. treaty in any event.
Thanks to all. That has clarified my view considerably.
The one thing that really struck me was how the issue was being portrayed to the predictable audience of Fox News Radio.
It seemed that the presenter was seeking the worst possible way to portray what was happening to pander to the prejudices of his audience. He used a similar technique when discussing other issues- looking for extreme interpretations of news stories and ramping up the negative emotions using fictitious padding around the story. There seemed to be a concerted effort to avoid addressing the real issues by the host, and no-one phoning in seemed to want to address the issue at the center of the argument.
Just fair and balanced then!
This article does a pretty good job explaining the case and arguments:
BTW, when I think about it, there is also the issue as to exactly what is being argued before the Court right now – if the case at issue is being presented exclusively in terms of the authority of the President to give orders to state governments, then its most constitutionally sound resolution would NOT address whether state courts are bound to observe treaty obligations, but it would surely be portrayed in foreign media as the US using “federalism” to weasel out of treaty compliance.
Seems to me both GW and the Mexican governmenthad the right idea but chose less than ideal strategy to put it into effect. Yes, *treaties ** are the supreme law of the land and the coinstitution says they are binding upon the judiciary in every state; but no, an AG memo is NOT the way to compel compliance; and trying to enforce a judgement from the Hague Court is not just ineffectual but will be considered downright insulting by a lot of American authorities. My own WAG is that the way I would have handled it would have been to diplomatically seek an agreement that Mexico would NOT seek a ICJ ruling against the US while our national State and Justice Departments would sue their Texas counterparts for not complying with a duly ratified treaty in violation of the supremacy clause and seek a US Federal Court * ruling ordering Texas to comply, and only once THAT avenue was exhausted, then sure, go to the ICJ. My impression is Texas ***would * ** have gone along, grumbling, with a US Court ruling that the treaty is locally enforceable; but will however kick and scream and refuse if an “order” is coming from a foreign court, whether channeled by the Prez or not.
Well, it’s not just the question of whether the President can give orders to state governments, but also whether the President can give orders to state courts. So it’s not just a federalism question, but it’s also a seperation of powers question, because the judiciary is supposed to be independent…the President isn’t able to say to the court, “Give this ruling” or “Overturn this conviction.”, which is what he tried to do in this case.
Another tiny wrinkle in the matter is were certain law enforcement organisations are prohibited by city or state statute or policy from inquiring about the immigration status of a suspect.
In a city or state were this was so, how would the Federal government be able to comply with that treaty, and notify a foreign country that one of it’s nationals is being held in a US prison if the Federal government isn’t even aware of it?
The axiom “Hard cases make bad law” comes to mind. The Slate article sums up this tangled mess pretty well. Bush shouldn’t have thought that a memo to the USAG would have state courts - even, ironically enough, in his old stompin’ ground of Texas - leaping to obey his wishes. But duly-ratified treaties are the supreme law of the land, and state courts are obliged to enforce their provisions. That, I suspect, is what the Supremes will end up saying, even as they tut-tut the President for so clumsily trying to get the state courts to comply.
If we think treaties to which we’re a party are too intrusive or violate U.S. sovereignty, guess what? We can abrogate or withdraw from them. Bush should know that; he’s done it several times already.
Is, “Don’t mess with Texas,” an active principle in this case?
The latter. Which does not mean Hedinger is not himself part of that constituency.