The crucial point, to my mind, is that the Court was exactly right in declaring that the President far overstepped his Constitutional limitations by usurping the legislative function of the Congress. For the State of Texas to have acquiesced in an unconstitutional Presidential directive would have done substantial harm to the separation of powers upon which the Constitution is largely predicated. To have given the Federal Government more time to work things out would have been pointless.
Under the Supreme Court's decision, two possibilities existed for the Federal Government to work things out:
1. The executions could have been postponed to give the Congress time to enact legislation implementing the Convention which was ratified in 1969, almost forty years ago. For the Congress to do that now would be tantamount to granting the ICJ the equivalent of habeas corpus jurisdiction to overturn State and Federal criminal convictions involving foreign nationals in the event of non compliance with the Convention. According to the Supreme Court, there is no provision for domestic review of ICJ decisions. It seems highly unlikely that the Congress would do any such thing anytime soon, in the absence of a domestic outcry for it to do so. Many U.S. citizens oppose ceding jurisdiction over State and Federal criminal proceedings to foreign judicial bodies, and such legislation would be highly controversial. Were the Congress to pass such legislation it would be subject to vehement attack, meritorious or not, as unconstitutional.
2. The President could seek to have the Convention itself amended to become self-executing. As the Court noted in Medellín, "in Sanchez-Llamas, we found it pertinent that the requested relief would not be available under the treaty in any other [of the one hundred and seventy-one] signatory countr[ies]." It would be very difficult to achieve agreement on such a result now and, were it possible to do so, it would take a lot of time. Then, the amended Convention would have to be approved by the Senate, which seems not at all certain.
There are, of course, things which could have been done back in 1969 (such as the passage of enabling legislation), or even as recently as the Supreme Court's 2006 decision in Sanchez-Llamas. These post Sanchez-Llamas actions might have been effective, although it is not certain that they would have been. The President could have requested the various State criminal authorities, and directed the various Federal criminal authorities, to advise all persons arrested that, should they be non-U.S. citizens, they were entitled to consult with the legal representatives of their respective countries and to solicit such assistance as they might be willing to provide. He could, quite properly, have cautioned that failure to offer such advice would contravene the Convention, cause embarrassment to the United States, and potentially result in protracted and expensive litigation. There is nothing in the Court's Opinion to suggest that this ever happened.
Article comments
1 - Ken Mills
As I understand it, Medellin actually had been in Texas since he was 3 years old, and never informed officials that he was not a citizen until well after he was convicted of murder.Futhermore, he confessed to the murder...his guilt or innocense has never been an issue...so, how could notifying the Mexican Consulate have been of any help? It all was a delaying tactic...Texans absolutely do not like and will not stand to be bullied by anyone and that includes our former Governor GWB or the World Court...Texans make their own laws using their own conscience as a guide and execute those laws....and, I disagree with anyone who tries to inferfere...The excessively brutal and inhuman facts of the rape, torture, and murder of 2 young, innocent beautiful daughters, sisters, granddaughers, friends of others warranted and justified the execution of the murdering monster...I only wish he could be revived and executed again, and again, ang again...maybe after being revived and executed several times, the scumbag would only then just begin to understand the hurt and misery he has brought to a whole lot of folk that didn't deserve it.
2 - Arch Conservative
Good for Texas.
The only thing that Texas did wrong in this case and also in the ase of the Honduran man they executed last week was fail to offer the executions as live pay per view events on univision and telemundo.
Don't mess with Texas!
3 - Dan Miller
Ken,
I agree that he did not inform anyone that he was a Mexican National until post-conviction. As I understand the situation, however, the authorities were required to advise him of his right to seek assistance from Mexico's legal representative.
The only way for the authorities to do that, without engaging in the sin of profiling, would have been (and would still be) to advise everyone to the following effect upon arrest: Sir (or Madam or whatever), in the event that you are not a Citizen of the United States, you are entitled to contact the legal representative of your country, whatever that may be.
Not that it would do anyone in Mr. Medellin's circumstances much good, but it would have spared Texas the cost of litigation and permitted Mr. Medellin's earlier execution. It would also have spared the U.S. some minor embarrassment and given the Washington Post a bit of editorial space in which to pontificate on something different.
Dan