Defending U.S. sovereignty, separation of powers, and federalism in Medellin v. Texas.

• Author: Cruz, Ted
• Position: Separation of Powers in American Constitutionalism

In 2008, the U.S. Supreme Court decided Medellin v. Texas, (1) a case that implicated virtually every conceivable axis of the structural limitations on government. President vis-a-vis Congress, President vis-a-vis the Supreme Court, international law vis-a-vis domestic law, federal government vis-a-vis the States, and, with a Mobius twist, President vis-a-vis the state judiciary. In Medellin, the State of Texas vigorously defended U.S. sovereignty, separation of powers, and federalism, and, by a vote of 6-3, Texas prevailed.

The Supreme Court's resolution of this case presents reason for both celebration and great trepidation. We should celebrate because U.S. sovereignty was preserved and because separation of powers and federalism--both foundational limits on governmental authority--were respected and enforced. Each of these structural limitations on government serves to diffuse power and to safeguard the citizenry, and it is only by ensuring the vitality of these democratic checks on unilateral authority that liberty can be secured. At the same time, the case invites great trepidation, because it represents an assault on those principles that will continue unabated for many years to come.

1. HOW THE CASE AROSE

   The principles at stake were monumental, but, as always, the case arose from concrete facts. And, in this case, the facts were horrific. One night in 1993, two teenage girls were walking home in Houston when they had the ill fortune of stumbling into a gang initiation. (2) What ensued was the brutal gang rape and murder of both girls. (3) Even in Houston, a city hardened to violent crime, the facts of this case shocked the conscience of the city. (4) Within days, police apprehended the gang members, who in turn confessed. (5) Jose Ernesto Medellin, the second-in-command of the gang, waived his Miranda rights and wrote a four-page hand-written confession. (6) Displaying no remorse whatsoever, he admitted gang-raping both girls, and he described how they pleaded for their lives before he stomped on one girl's neck and strangled them both with a shoelace and a belt. (7) Medellin committed an unspeakable crime, confessed to that crime, and, after being vigorously represented by two state-funded lawyers, (8) was convicted and sentenced to death by a jury of his peers. (9)

   Medellin's conviction was affirmed on appeal. (10) Then, four years later, he brought a new claim into his case on state habeas: He alleged that he was denied his rights under the Vienna Convention on Consular Affairs. The Vienna Convention, a multi-lateral treaty ratified in 1969, provides that a foreign national has the right to contact his consulate if arrested in a foreign country, and that the arresting authorities are required to inform the national of that right. (11) Although Medellin had lived most of his life in the United States, had attended American schools, and read and wrote English, he was born in Mexico and therefore was technically a Mexican national. (12) And, there was no dispute that the local police had failed to inform Medellin of his rights under the Vienna Convention.

   That, however, was not the end of the matter. It is a bedrock principle of American criminal procedure that rights not preserved at trial cannot later be used to collaterally attack a conviction. (13) In this case, Medellin's lawyers never raised the Vienna Convention at trial and so the habeas court held that any claim under that treaty was procedurally defaulted.

   The Supreme Court has long held that legal claims--even constitutional claims, which enjoy the highest level of protection in criminal law--generally cannot be raised on habeas if they were not raised first at trial. (14) And there is no sound basis for according treaty claims more force than constitutional claims. For that reason, in 1998 the Supreme Court in Breard v. Greene squarely held that if a defendant does not raise a Vienna Convention claim at trial, then that claim is forfeited and cannot be raised on habeas. (15)

   The reason for the procedural default rule, the Supreme Court has explained, is that the trial should be the "main event" (16)--the central moment for determining guilt and resolving all of the legal issues in the case. And Medellin illustrates well the reason for that rule: Had Medellin's lawyers asserted at trial his treaty right to contact the Mexican consulate, the trial judge could have resolved the issue on the spot, allowing him simply to contact the consulate. The claim would have gone away, and he no doubt would still have been convicted for the brutal crime to which he had confessed. Instead, Medellin urged, the treaty claim that he had never raised should serve as a basis to set aside his long-completed trial and final conviction. The state courts rejected Medellin's claim, (17) and, following Breard, the Fifth Circuit likewise rejected Medellin's federal habeas claim. (18)

   The Supreme Court granted certiorari and heard oral argument, but then dismissed the case as improvidently granted because Medellin had subsequently brought a successive state habeas petition, urging that a recent memorandum signed by President Bush (discussed below) superseded state law. (19) Then, the Texas Court of Criminal Appeals denied the successive petition as an abuse of the writ, and unanimously held that the Presidential Memorandum exceeded the President's constitutional authority. (20) And so the Supreme Court granted certiorari once again. (21)

   Before the Supreme Court, Medellin advanced two principal arguments: First, he argued that the Avena decision of the World Court constituted a binding judgment, which the Supreme Court was obliged to enforce. And second, he argued that the Presidential Memorandum constituted binding federal law, which trumped all state and federal law to the contrary. Both arguments had grave implications.

2. THE WORLD COURT DECISION

   In 2004, the World Court (22) issued its Avena decision, which purported to order the United States to reopen the convictions and sentences of fifty-one Mexican nationals on death row across the country. (23) For the first time in the history of our nation, a foreign tribunal attempted to bind the U.S. justice system, and to disturb final criminal convictions.

   Thus, the central...