NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, August 27, 2008 ::
Major resource discovery: The Alexander Hamilton Institute for the Study of Western Civilization. See esp. the databases under the tabs "American History" and "Western Civilization" in the left-hand margin.
:: David M. Wagner 10:23 AM [+] ::
...
:: Monday, August 18, 2008 ::
Calif. S.Ct: under garden-variety civil-rights statute -- i.e., of the "you can't bar blacks from your hotel" type -- doctors specializing in fertility treatment must extend treatment to same-sex couples.
This news item doesn't refresh the memory as to whether California has a state RFRA, but I'll bet if it does, or gets one, it'll make no difference. What's my first clue? Well -- who's representing the plaintiff suing the clinic?
:: David M. Wagner 7:38 PM [+] ::
...
:: Wednesday, August 06, 2008 ::
Medellin, continued
First, I hope readers prayed for Medellin last night, and for his victims and their families. I'll continue to do so. I'm Catholic so I get to do that. 2 Maccabees 12:43-46. (Wuzzat? -- What, it's my fault somebody threw some books out your Bible?)
Second, of last night's dissents, only Breyer's was really substantive. (Court's per curiam opinon and four dissents here.) Some point-counterpoint:[T]he ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision.
I guess we're down to bedrock on the sovereignty issue here. For most votarists of public international law, those who talk seriously about national sovereignty are good for, at most, a laugh. I don't propose to entertain them unnecessarily.[L]egislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law.
Good job, too, because that's how, in the case of a non-self-executing treaty, one turns an i.l.o. into a b.d.l. He goes on:See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).
That last bit, in parentheses, gives the game away: the bill was referred to committee at the point where Congress had one foot out the door, in midsummer of an election year, with both major party conventions looming between now and Congress's next meeting, and no one planning to do anything not directly keyed to the presidential election once that meeting happens.
In other words, for all the "international legal obligation" solemnity that surrounds it (no cute acronyms here!), the Avena Case Implementation Act has been dropped in the ashcan by the Democratic majority that supposedly favors it.
Is the Court supposed to ignore this fact? Perhaps, but if so, note what follows: a biennial ritual (or at most annual) in which a congressman places an Avena Case Implementation Act in the hopper at midsummer (like that "rose" from first-year contract law), and the Court then grants Medellin yet another stay because, you know, Congress might yet act.
I suggest, instead, that Congress has to act if it wants to, and that there is no principled way for the Court to fashion a determinate injunction-like remedy to freeze the situation to allow Congress time to act.Congress may not have understood the legal need for further legislation of this kind.
That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.
A point, definitely a point. But valid only insofar as the non-self-executing nature of the Vienna Convention on Consular Relations was created by the Court's decision the Medellin case, and was utterly counter-intuitive before that. Many will argue that position. But I understood the Medellin Court to understand itself to be construing the Convention, not rewriting it. If so, then Congress knew or should have known that it needed to implement the Convention through legislation.
The rest of Breyer's arguments mainly re-package the declaration that Medellin's execution places "us" in breach of the Convention, because Medellin was not granted a hearing to determine whether his lack of consular access was harmless error. Leaving aside the question of whether the Convention is satisfied by such a harmless-error hearing -- it requires consular access, period, does it not? -- this "us" business begs the question. If "we" are in breach, it's because the particular subset of "us" whose job it is to bring "us" into compliance -- Congress -- hasn't gotten off its "us" yet on this issue. And our constitutional system -- which we can try to explain to you, Mr. ICJ, if you're interested -- doesn't allow parts of "us" to do other parts' jobs.
:: David M. Wagner 11:41 AM [+] ::
...
:: Tuesday, August 05, 2008 ::
Medellin: I'm monitoring the execution sitution via Scotublog and Google News. The last-minute argument for delay is non-trivial. As presented by Lyle Denniston:“Texas is about to execute Mr. Medellin anyway, taking the decision out of Congress’ hands and placing the United States irrevocably in breach [of the Vienna Convention on Consular Relations]....
“[T]he decision to breach the treaty has effectively been made by the District Attorney of Harris County, Texas, who, with the approval of a state trial-court judge, set an execution date at the earliest point allowed under Texas law,” the brief asserted.
That is not where the question over observing treaty rights should be left, it concluded.
In the course of the reply brief, Medellin’s attorneys specified that they were asking the Supreme Court to put the execution on hold “for a period of one year to allow Congress an opportunity to enact implementing legislation” to carry out U.S. obligations under the treaty....
OK, this deserves thought, and I'm glad the Supreme Court did not dismiss it summarily. However, two reservations, and a counter-reservation:
1. The reference to the Harris County DA and the trial judge is a bit disingenuous. Really, the State of Texas, a sovereign state, is the actor here. This may not be a dispositive fact, but rhetorically smooshing responsibility down to people who can be made to sound like bit players tends to obscure it.
2. What's magical about "one year"? Congress could have enacted implementing legislation the day it ratified the Convention, or the day after Medellin v. Texas was handed down, or the day before it went into its current recess -- excuse me, "district work period." But, as the Court held, neither the President, nor the ICJ, nor the Court itself can directly create implementing legislation, or order states to comply with the Convention as if such legislation existed. So where, exactly, would the Court get the authority to stay the execution for a year, or for any period of time, for that matter?
3. If I'm wrong about these points, I'll be very comfortable with being found so by the Court. Mr. Medellin is a very suitable candidate for the death penalty, but at the same time, I'm not so committed to the death penalty per se that I'd be vexed at being contradicted by the Court.
:: David M. Wagner 9:05 PM [+] ::
...
Well, I just filled in a "survey" for the National Republican Senatorial Committee, coming out for low taxes, a strong national defense, and a marriage amendment, and against "gays" being "permitted to serve openly in the military"; but also against making it a "top priority" to secure our borders and control immigration (the question didn't specify "illegal" immigration, interestingly enough), and also against a flag-protection amendment.
Yeah, elect me some Senators with that combination of beliefs....
:: David M. Wagner 3:08 PM [+] ::
...
:: David M. Wagner 10:23 AM [+] ::
...
This news item doesn't refresh the memory as to whether California has a state RFRA, but I'll bet if it does, or gets one, it'll make no difference. What's my first clue? Well -- who's representing the plaintiff suing the clinic?
:: David M. Wagner 7:38 PM [+] ::
...
First, I hope readers prayed for Medellin last night, and for his victims and their families. I'll continue to do so. I'm Catholic so I get to do that. 2 Maccabees 12:43-46. (Wuzzat? -- What, it's my fault somebody threw some books out your Bible?)
Second, of last night's dissents, only Breyer's was really substantive. (Court's per curiam opinon and four dissents here.) Some point-counterpoint:
[T]he ICJ has asked that the United States “take all measures necessary to ensure that [the Mexican nationals] are not executed” unless and until they “receive review and reconsideration consistent” with the ICJ’s earlier Avena decision.I guess we're down to bedrock on the sovereignty issue here. For most votarists of public international law, those who talk seriously about national sovereignty are good for, at most, a laugh. I don't propose to entertain them unnecessarily.
[L]egislation has been introduced in Congress seeking to provide the legislative approval necessary to transform our international legal obligations into binding domestic law.Good job, too, because that's how, in the case of a non-self-executing treaty, one turns an i.l.o. into a b.d.l. He goes on:
See Avena Case Implementation Act of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to committee, July 14, 2008).That last bit, in parentheses, gives the game away: the bill was referred to committee at the point where Congress had one foot out the door, in midsummer of an election year, with both major party conventions looming between now and Congress's next meeting, and no one planning to do anything not directly keyed to the presidential election once that meeting happens.
In other words, for all the "international legal obligation" solemnity that surrounds it (no cute acronyms here!), the Avena Case Implementation Act has been dropped in the ashcan by the Democratic majority that supposedly favors it.
Is the Court supposed to ignore this fact? Perhaps, but if so, note what follows: a biennial ritual (or at most annual) in which a congressman places an Avena Case Implementation Act in the hopper at midsummer (like that "rose" from first-year contract law), and the Court then grants Medellin yet another stay because, you know, Congress might yet act.
I suggest, instead, that Congress has to act if it wants to, and that there is no principled way for the Court to fashion a determinate injunction-like remedy to freeze the situation to allow Congress time to act.
Congress may not have understood the legal need for further legislation of this kind.A point, definitely a point. But valid only insofar as the non-self-executing nature of the Vienna Convention on Consular Relations was created by the Court's decision the Medellin case, and was utterly counter-intuitive before that. Many will argue that position. But I understood the Medellin Court to understand itself to be construing the Convention, not rewriting it. If so, then Congress knew or should have known that it needed to implement the Convention through legislation.
That fact, along with the approaching election, means that more than a few days or weeks are likely necessary for Congress to determine whether to enact the proposed legislation.
The rest of Breyer's arguments mainly re-package the declaration that Medellin's execution places "us" in breach of the Convention, because Medellin was not granted a hearing to determine whether his lack of consular access was harmless error. Leaving aside the question of whether the Convention is satisfied by such a harmless-error hearing -- it requires consular access, period, does it not? -- this "us" business begs the question. If "we" are in breach, it's because the particular subset of "us" whose job it is to bring "us" into compliance -- Congress -- hasn't gotten off its "us" yet on this issue. And our constitutional system -- which we can try to explain to you, Mr. ICJ, if you're interested -- doesn't allow parts of "us" to do other parts' jobs.
:: David M. Wagner 11:41 AM [+] ::
...
“Texas is about to execute Mr. Medellin anyway, taking the decision out of Congress’ hands and placing the United States irrevocably in breach [of the Vienna Convention on Consular Relations]....OK, this deserves thought, and I'm glad the Supreme Court did not dismiss it summarily. However, two reservations, and a counter-reservation:
“[T]he decision to breach the treaty has effectively been made by the District Attorney of Harris County, Texas, who, with the approval of a state trial-court judge, set an execution date at the earliest point allowed under Texas law,” the brief asserted.
That is not where the question over observing treaty rights should be left, it concluded.
In the course of the reply brief, Medellin’s attorneys specified that they were asking the Supreme Court to put the execution on hold “for a period of one year to allow Congress an opportunity to enact implementing legislation” to carry out U.S. obligations under the treaty....
1. The reference to the Harris County DA and the trial judge is a bit disingenuous. Really, the State of Texas, a sovereign state, is the actor here. This may not be a dispositive fact, but rhetorically smooshing responsibility down to people who can be made to sound like bit players tends to obscure it.
2. What's magical about "one year"? Congress could have enacted implementing legislation the day it ratified the Convention, or the day after Medellin v. Texas was handed down, or the day before it went into its current recess -- excuse me, "district work period." But, as the Court held, neither the President, nor the ICJ, nor the Court itself can directly create implementing legislation, or order states to comply with the Convention as if such legislation existed. So where, exactly, would the Court get the authority to stay the execution for a year, or for any period of time, for that matter?
3. If I'm wrong about these points, I'll be very comfortable with being found so by the Court. Mr. Medellin is a very suitable candidate for the death penalty, but at the same time, I'm not so committed to the death penalty per se that I'd be vexed at being contradicted by the Court.
:: David M. Wagner 9:05 PM [+] ::
...
Yeah, elect me some Senators with that combination of beliefs....
:: David M. Wagner 3:08 PM [+] ::
...
