The Texas Court of Criminal Appeals has rebuked President Bush in a ruling involving Mexican nationals on Texas death row.
Judge Keasler's lead opinion is here. Presiding Judge Keller's concurring opinion is here. Judge Price's concurring opinion is here. Judge Hervey's concurring opinion is here. Judge Cochran's concuring opinion, joined by Judges Johnson and Holcomb, is here.
Texas Court of Criminal Appeals, that State's highest court in criminal cases, holds that President Bush was powerless to force the Texas judiciary to disregard its rules of procedural default to consider on the merits a Mexican death row inmate's Article 36 Vienna Convention claim: The Texas Court of Criminal Appeals today issued its ruling in Ex Parte Jose Ernesto Medellin. The ruling consists of a lead opinion and four separate concurring opinions. You can access the lead opinion at this link, while the concurring opinions can be accessed here, here, here, and here.
In light of the possibility that the Texas courts will provide Medellin with the review he seeks pursuant to the Avena judgment and the President's memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellin's pending action, we think it would be unwise to reach and resolve the multiple hindrances to dispositive answers to the questions here presented. Accordingly, we dismiss the writ as improvidently granted.
In a sharp rebuff of a claim of presidential power, Texas' highest state criminal court ruled on Wednesday that President Bush did not have the constitutional authority to tell state courts to apply a decision of the World Court on the rights of foreign nationals arrested and prosecuted in the U.S.
"We hold," the Texas Court of Criminals Appeals said, "that the President has exceeded his constitutional authority by intruding into the independent powers of the judiciary." Relying on the two-century-old doctrine that it is the duty of the courts "to say what the law is," the state court said that power includes interpretation of treaties. "The clear import of this is that the President cannot dictate to the judiciary what law to apply or how to interpret the applicable law." (Thanks to Howard Bashman for the alert to the decision; Howard has posted links to the five opinions in the case at his How Appealing blog. The discussion of the state court's holding on presidential powers begins on page 15 of the main opinion linked by Howard.)
Because the ruling ultimately rests upon federal constitutional interpretation, it is subject to appeal to the U.S. Supreme Court. The Justice Department entered the case in Texas courts to defend energetically the President's action. While it is unclear at this point whether it would take the issue on to the Supreme Court, the Bush Administration has not hesitated to appeal decisions that go against its conception of robust presidential authority.
Judge Michael Keasler's majority opinion was supported, in its result, by all of the Court of Criminal Appeals' nine judges. Keasler and four of his colleagues rejected President Bush's directive to state courts to act to follow the World Court. A sixth judge joined the result only. Three other judges, led by Judge Cathy Cochran, dismissed Bush's memorandum as less than a legal document binding on state courts so she found it "unnecessary to undertake a separation of powers analysis as does the majority." One of the concurring judges, Presiding Judge Sharon Keller, said that Bush's "unprecedented, unnnecessary, and intrusive exercise of power over the Texas court system cannot be supported by the foreign policy authority conferred on him by the United States Constitution."
The ruling vindicated the argument of the Texas state government that Bush did not have the authority he claimed.
The practical effect of the rulng was that Jose Ernesto Medellin, a Mexican national convicted of murder and sentenced to death for his role in the gang rape and murder of two teenage girls in Houston, was denied relief on his claim that his rights under an international treaty were violated when he was denied access to a diiplomatic official of his country after his arrest. The treaty at issue is the Vienna Convention on Consular Relations, assuring such contact with a consular officer.