I see no where in this article that Jose Medellin is a citizen of the US. Were he a citizen, wherein lies Mexico's concern. If he is not a US citizen, how did he come to be in this country? Was it illegally? If so, what rights has he in any court in the world since his very existance in this country would be poisioned by the illegal act of invasion of a sovernign nation. The very act of crossing the border without a visa or passport is illegal. Therefore would not all subsequent acts of the individual be illegal? To whom do we owe our allegiance, Mexico, the WCJ or The Republic of Texas? I don't care who the president might be, we have 50 independent sovernignties that combine to make up this federation. Each of them is entitled to protect and preserve their borders by whatever means are at their disposal.

It is a question of the treaty that the US and Mexico are signatories to, specifically the provision stating that if a foreign national is arrested in the US (or vice versa), the consul of that nation must be informed. The US specifically pushed for that treaty provision in order to protect US citizens abroad. The US also agreed, under the treay, that any disputes will be settled by the ICJ. Ratified treaties are the Supreme Law of the land, along with the constitution and federal law, under the constitution.

PoliSci Guy:

It is a question of the treaty that the US and Mexico are signatories to, specifically the provision stating that if a foreign national is arrested in the US (or vice versa), the consul of that nation must be informed. The US specifically pushed for that treaty provision in order to protect US citizens abroad. The US also agreed, under the treay, that any disputes will be settled by the ICJ. Ratified treaties are the Supreme Law of the land, along with the constitution and federal law, under the constitution.

Absolutely correct. What I don't get about the whole argument in this case is why Bush's memo to the AG is even relevant. Whether or not that memo carries the force of law, the state courts should still be bound to comply with the ICJ ruling, and moreover, should have been bound to comply with the terms of the Vienna Convention (which is hardly a new component in the law) without needing to have it taken to The Hague in the first place.

Why so much focus on whether or not a memo that merely demands compliance with pre-existing laws carries any force of its own? The pre-existing laws carry the full force of law (by definition), so the situation shouldn't be changed in any way whether or not the memo carries any authority.

One claim made was that the issue was not properly in front of the court, since it was a matter of procedural default that cannot be re-opened in this fashion. The treaty right is no longer properly raised, even if it exists.

Others argue that the treaty does not supply a person the right to bring a case like this, only setting up an obligation between nations that can be enforced by common agreement. IOW, the int'l tribunal's ruling was wrong for offerring this type of relief -- a hearing in state court for a matter already decided (it was 14-1, the U.S. dissented) and Bush has no power to selectively enforce it (he argued that he did not have to enforce it, but did so as a matter of policy in this case -- since he was not compelled to do so, he didn't have the power to interfere in this fashion).

They point out that Medellin can argue the court was right, but the way to do this is go to the courts, not have the President via a memo do it. This might be a distinction w/o a difference if people are right about what the treaty requires, but in reality it is likely the Texas courts would interpret the treaty differently (or raise some other issue, as noted above) and the Supreme Court would be liable not to decide to take the case, given so few are taken and the conservatives are not very gung ho about the matter anyway.

Finally, if Congress passed an enabling law that required states to reopen a case like this, it might be different, again since clear law was involved, not voluntary presidential policy. And, the relief offered -- opening the case again etc. -- is not an obvious obligation to the treaty as compared to notifying the consulate to begin with. Think of it as some sort of 'exclusionary rule' matter where the issue is not the power to search in the first place, but dropping the case for using the wrongly seized items long after the fact.

It might be a legitimate way of enforcement, but the way to go about it would be different than a memo that could go the other way, so is a pretty arbitrary way of interfering with state judicial decision making. So is the arguments made, more or less.

-j