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:: 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 ::

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    :: 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 [+] ::

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