The local jurisdiction does not need to know the immigration status of the suspect: the just need to know the suspect’s citizenship. If a Mexican citizen present in Texas is charged with a crime, it doesn’t matter whether they are in the US on a visitor visa, a green card, or illegally: they should be given access to the nearest Mexican consulate.
(Perhaps there’s an unspoken assumption that all Mexicans in the US are illegal immigrants: that is certainly not so!)
Of course not.
What I meant to ask was, say the local police arrests an individual. They ask for his ID. He provides a valid (U.S.) drivers licence. That’s it, they are done.
Since some jurisdictions are prevented from checking a person’s immigration status (either by legislation from the local or state level folks, or by operating directives within the local police agency), how do they know a person is not a citizen of the U.S. unless the suspect voluntarily divulges that info?
I guess I’m showing too much of my ignorance here.
How do the police determine the citizenship of a suspect without also finding out the immigration status?
One way would be if the suspect offers a foreign passport, foreign ID or foreign drivers license as identification. Another would be if the suspect says, “I am a … citizen, and want to get in touch with my embassy/consulate for help.” In both cases, you haven’t found out the immigration status (except, perhaps, if you went through all the visa pages in the passport, but even that might not help all that much in some cases).
I have not read the briefing in the case, so I am reluctant to offer too much legal thought. But, having said that, there is one aspect to this that comes to mind:
The State of Texas has determined it has properly convicted and sentenced the defendant. This means that the state, through its judicial system, has reached a determination that the treaty obligations of the United States do not effect the defendant’s conviction. Now, that apparently doesn’t square with the treaty which is in effect. But, the issue becomes one of remedy. Certainly, the federal administration is not able to force Texas to change its mind. If the federal government is going to get involved, it would have to be through either federal legislative or federal judicial action. Thus, the Congress could pass a law freeing the defendant (assuming they can find constitutionally sufficient grounds for such a law. Or, the defendant could file for a writ of habeas corpus in federal court and attempt to get the federal judicial system to free him, on the basis that he has some rights under the treaty that were violated by the action of the Texas judicial system.
I think that the issue of “sovreignity” is simply a red herring, used to try and avoid the real issue, which is that Texas doesn’t want to have to have anything interfere with the swift conviction and execution of certain people.
Our federal government is one of limited, enumerated powers. The Constitution lays out the powers the federal government has, and notes that all other rights and powers are reserved to the states, or to the people. To add a power to the federal government that the Constitution doesn’t already grant requires an amendment to the Constitution.
If a treaty made by the federal government could trump state law on any and every subject, then we have the curious contradiction that the federal government could grant itself any power merely by including the language in a treaty.
That’s not how it works. A treaty may only reflect Congress’ powers. It may not exceed the powers of the federal government.
Right.
But I was envisioning a case where a suspect did not reveal his citizenry, for whatever reason. (Maybe he was just plain unaware of the treaty mentioned by Arnold Winkleried in post #3.)
I am unclear about the particulars of the OP’s case.
Did Medellin (the defendant in the OP) request to contact his consulate during his trial, and the state (Texas) deny it, or did he not reveal his citizenship until after the conviction?
From reading up on the case, it appears that Medellin should have been told of his rights to consular assistance. I can’t find out how the police found out that he was a Mexican citizen, but I can imagine routine questioning going something like this:
Police: Where were you born.
Medellin: In Mexico.
Police: Have you been naturalized as an American?
Medellin: No.
Police: So you’re a Mexican citizen then?
Medellin: That’s right.
Medellin confessed to the crimes of rape and murder, in spite of a Miranda warning. I doubt if he would be concealing his citizenship, and I can see how it would come out in routine questioning.
What is required of the local court when they arrest a foreign national? Do they send a memo over to the embassy? Fax a list? Enter a name onto a web page? Do we have to let Mexico know every time we deport someone back to Mexico?
I am just curious how the treaty works. I have friends in the foreign service who, in the early part of their career, had the joy of dealing with US citizens arrested in places like Mexico. I am just wondering, considering the sheer number of Mexican nationals in the US, how well the Mexican embassy could even deal with this issue.
On the flip side, could every local jail deal with the situation by making the equivalent of a short-form that they send off and they are done with notifying?
Why would we want to be involved with the International Court of Justice? Remember when they said we couldn’t mine Nicaragua’s harbors? What’s up with that?
Says who? Point to the language in the document that says that.
Or does strict construction only run in one direction? 
Are you joking? The guy practically quoted the Constitution of the United States. It’s the Tenth Amendment.
Bricker’s argument is perfectly logical; the Constitution pretty specifically states what the federal government’s powers are and specifically gives any powers NOT given to the feds “to the States, or to the people.” It’s illogical to conclude that Congress could simply short-circuit this by granting itself a power and calling it a “treaty.”
Are you kidding me??
You quoted the language: …and all Treaties made, or which shall be made, under the Authority of the United States…
A treaty made UNDER THE AUTHORITY OF THE UNITED STATES is supreme. A treaty which extends the powers of the federal government beyond those granted under the Constitution is not made under the authority of the United States – by definition, since the limits of the authority of the United States are delineated in the Constitution.
Moreover, as I pointed out, assuming the contrary eviscerates any limitation of power for the federal government, since it permits the President and the Senate to modify the Constitution with no input from the House or the states. A basic rule of statutory construction is that language should not be interpreted to reach an absurd or contradictory result.
But you knew that, which makes your comment puzzling.
If you are going to limit the powers of the federal government to make treaties in the way suggested by Bricker, then there’s a gap. Suppose a citizen of Texas was visiting the State of New South Wales,was arrested by the state police there and charged in a state court with a felony. How can the Texan get help from the US Consulate in Sydney? The State of Texas can’t make a treaty with the State of New South Wales on consular relations: they both gave away treaty-making powers when they joined their respective federations. And why should the Texan expect that right anyway, when a New South Welsh person arrested in Texas can’t expect to be helped to get in touch with the Australian Consulate in Houston.
But Bricker is arguing from the point of view that the treaty is about criminal procedure. In fact, it’s about diplomatic and consular relations, including the rights of ordinary citizens to get consular assistance, and hence falls well within the limited powers of the federal government.
That’s a perfectly reasonable view to take. I was objecting only to the general sentiment that seemed to be in the offing here that all treaties automatically trump all local law. If the subject matter of the treaty is one that’s within the purview of the federal government, then it’s legitimate
Texas had this problem a few years ago when a Canadian man was on death row. He had never identified himself as a Canadian and the authorities thought he was an American. I can’t remember if he was executed or not. Does this ring a bell with anyone?
Marc
Just bringing this discussion back from the dead because the Supreme Court has ruled in Medellin v. Texas.
By a 6-3 decision, the Court says that Texas does NOT have to re-try or re-sentence Medellin, even in the face of a federal treaty obligation presumably to the contrary. They note that:
As I said above, back in October:
Yes, that would have been Stanley Faulder. This piece from the CBC briefly tells the story, although this is the important part:
I’m going on memory here as well, and it may not be perfectly accurate. But as I recall things, the fact that Faulder was Canadian didn’t come out for a long time. When it finally did, the Vienna convention was quoted and the Canadian government got involved. Like the Mexican government with Medellin, it too was unsuccessful at convincing Texas that a review ought to take place on the basis of the right Faulder was never told of. Though I don’t believe the Canadians went to the International Court of Justice to enforce their claim.
A little further digging, and I found more information on the Stanley Faulder case for those who are interested. See this link from the (Ontario, Canada) Criminal Lawyers Association.