Amicus Curiae Brief — Medellin v. Texas

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No. 06-984

IN lH

Supreme Court of the Anited States

JOSE ERNESTO MEDELLIN,

Petitioner.

V.

THE STATE OF TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

AMICUS CURLAE BRIEF OF CONSTITUTIONAL AND

INTERNATIONAL LAW SCHOLARS IN SUPPORT OF

RESPONDENT STATE OF TEXAS

EDWARDS —)48SON ERNEST A. YOUNG

RICHARD B. FARRER Counsel of Record

YELIER & WARDEN, LLP 727 East Dean Keeton Street

221 West Sixth Street. Suite 750 Austin, Texas 7870S

Austin, Texas 78701 (512) 232-5561

(512) 533-0150

Attorneys for Constitational and International Law

Scholars In Support of Respondent State of Texas

L4mici Constitutional and International Law Scholars

Are Listed on Inside Cover!

List of Amici Curiae Constitutional and International Law

Scholars:

Erwin Chemerinsky

John Eastman

Thomas Lee

Michael Ramsey

Michael Van Alstine

Arthur Mark Weisburd

John Yoo

Ernest Young

TABLE OF CONTENTS

Page

FR Ge FT Te ee iccirccnsetcnsccccsnsinissestiesesens ii

I GENET GUID sicccniccstninceniadenmsipnecebeienenesanensciiais |

SUMMARY OF ARGUMENT .................00:: cesses 3

I sriinicteatiaiiabein nessa stieiessangeilalisdadiniiinbinaiainividenen 5

1. The President Lacks Constitutional Authority

NC reriicicicsccenencttctininidciecsinitinnpies 5

A. The Memorandum Embodies a_ Discre-

tionary Judgment, Not the Implementatior

a sccccpnininccsicscsnveiscivareinncan 5

B. The President Cannot Unilaterally Create

SINS FOIE GIO as cieeesscesserescsinescenesees 7

C. The President Cannot Legislate to Execute

Non-Selt-Executing Treaties ......00..0000.00... 1]

D. The President's Order is Contrary to the

Will of Congress as Expressed in the

Habeas Statute ........ iadidpmaaieisspaseedianasiersaditides 14

ll. The President's Order Unconstitutionalls

luterferes with the Independence of State

Tail scnaiibidincacubbidsipaecniesiicapecssunsesiaeseetaiiionanitieess 18

A. The President May Not Require State

Courts to Exercise Jurisdiction That They

Do Not Possess Under State Law ................ 18

B. The President May Not Direct the State

Courts to Decide a Particular Issue in a

Particular Case in a Particular Way ............. 2|

C. the President May Not Require State

Courts to Reopen Final Judgments.............. 24

(1)

TABLE OF CONTENTS—Continued

il. The President's Memorandum is_ Bes:

Construed as Non-Binding ..................c0

CONCLUSION

oe eee ECO CORO CEO COCOCCO ECO C CCC See Tee eee ee eee eee eee

il

TABLE OF AUTHORITIES CITED

CASES Page

Alden v. Maine,

I caecum 19, 23

Am. Ins. Assn v. Garamendi,

aaa . 8&9

Bailey v. Cent. Vermont Ry. Co.,

I sc caauecaanamacenn 20

Bates v. Dow Agrosciences LLC,

§44 U.S. 431, 125 S.Ct. 1788 (2905) 00000000... 28

Bates v. Kimball.

NE FF CUE COD ro vsesecsecvesnersccsensesceesasens 25

Beazley v. Johnson.

242 F.3d 248 (Sth Cir. 2001) «0.0.0.0... eee }2

Breard v. Greene,

I add _ passim

Bowen v. Georgetown Univ. Hospital,

i ET enn =f

Calder v. Bull,

3 Dall. 386 1 L.Ed. 648 (1798)... cools 25

Chevron US.A., Inc. v. Natural Res s Def Coun-

cil, Inc., 467 U.S. 837 (1984) 000. 29

Claflin vy. Houseman,

i ccc csacaauenboaiesnans 19

Clinton v. City of New York,

Be Os EF GE or ercteectccrenseenisrermesves pee , )

Collector v. Day,

78 U.S. (LE Wall.) 113 (1970)... ; 23

Dames & Moore v. Regan.

BO) as GP OOO vcccsntsesccsntessessscccne: coe . 817

Dice y. Akron, Canton & Youngstown R.,

SI I a ii natcpenanhaniisgenee’ 20

Kdward J DeBartolo Corp: v. Fla Gulf Coast

Bldg. & Constr. Trades Couneil.

485 US. 568 (1988) oo... 29

1V

TABLE OF AUTHORITIES CITED—Continued

Page

Ex parte Bollman Swartwout,

ERP sap OEE REN 14, 26

Ex parte Merryman,

17 F. Cas. 144 (C.C.D. Md. 1861).................... 14

Felder v. Casey.

Re a Ee I cocci ctiddaiscmstnonsicesesstboncsonenn 20, 21

Fidelity Fed. Sav. & Loan Assn. v. de la Cuesta

8 SER RR nanan en 7

Foster & klam vy. Neilson,

Be ee BU fe siniactskstisvetibiciectsinidiacieccsiacesien 12

Frolova vy. Union of Soviet Socialist Republics.

761 F.2d 370 (7th Cir. 1985)..............00000000.000 12

Gregory Vv. Ashcroft,

Ee ee SED csccicinisheticnumntssscctesuvedéstegenni 28

Hamdan v. Rumsfeld.

126 S.Ct. 2749, 2800 (2006) (Kennedy. J..

Rr NE pithisncciinnenasecesnniaiciccscecctsisenions 5

Hayburn's Case,

MIE sciicsnitlcshiscnitccbniddbesinavesdeiaigadinionds 4,25

Helvering v. Gerhardt,

304 U.S. 405 (1938) 0... iccuguibiscionteion 23

Howlett v. Rose.

ee Oe eaesaninies 18, 19, 29

Igartua-De La Rosa v. United States,

BOT Fe ORS CEC, FOOD vcscesccnccsesesscccinsss 11.12.13

INS v. Chadha,

SE III cts) ccerescctsctscansnechiosnaamaande )

Johnson vy. Fankell,

Fe ae Oe OD coercncsccsousersnciseceivabs ieacikuaaed 19, 20

Lewis v. Webh,

3 Greenleaf 299 (Me. 18258)... 25

Merrill v. Sherburne.

PG Se isisocsincrinnctsevontnideistivnebenttiaieies : 25

V

TABLE OF AUTHORITIES CITED—Continued

Page

Minneapolis & St Louis RR Co. v. Bombolis.

BN TED ninhshiatnienensccienenccideseianness 19

Mondou v. New York, New Haven & Hartfor«

RR Co,

I i ial 18

Murdock v. City of Memphis.

gs Ee 23

Plaut v. Spendthrift Farm, Inc..

| kee 4, 25, 26

Postum Cereal Co. vy. California Fig Nut Co

272 U.S. 693 (1927)............ sbiadeiaseelenaanbien BURR 4

Rice v. Santa Fe Elevator Corp.,

IIIT sccictnciescscdenteéctetevenniénsemnsiien 28

Robertson Vv. Seattle Audubon Society,

eat 22

Sanchez-Llamas vy. Oregon.

a

Smiley v. Citibank (SD i, NA...

ETE eee a er 29

Societe Nationale Industrielle Aerospatiale \

United States Dist. Ct,

kL Canes siidalinitiets 28

Testa v. Katt,

RT RS oe a RO 4.18

United States v. Belmont,

I liars 8

United States v. Klein.

a ee

United States v. Mead Corp .

I: a cecibemsencin 29

l mted States ¥. Morrison,

SE ee ee )

vi

TABLE OF AUTHORITIES CITED—C ontinued

Page

United States v. Pink,

PR eee ities x

United States v. San Jacinto Tin Co.,

Senco 2

Whitney v. Robertson,

ee 12

Willy. Mich. Dept of State Police,

491 US. 58 (1981)... ea eal 28

Youngstown Sheet & 1 ube C ON. Sawy ver,

| fe Fe

TREATIES AND FEDERAL STATUTES

Se Oi eiasnbindanenmeenasensbenitie 16

SR i asasadalaldtal 16

i miniinsianseal 20

Act of Feb. 5, 1867, 14 Stat. 385. Remanaseiiiticsanstiinaie 14

Anti-Terrorism and Fffective Death Penalty Ac:

of 1996, Pub. L. No. 104-132, 110 Stat. 1214... 1s

Case-Zablocki Act. | U.S.C. $1 12(b)................ 10

CONSTITUTIONAL PROVISIONS

RE 8 eer 4

EF ESO ne 4

Nf TEESE eae OO 10

I al 14

AIT nicciscissthitcidicnsibantcicineulnantians 7

OTHER AUTHORITIES

Bellia. Federal Regulation of State Court Proce-

dures, 110 Yale LJ. 947, 970-92 (2001)........... 19

Comm On Foreign Relations. International

Covenant on Civil Rights. S. Exec. Rep. No.

Fs ATT, Ck ee Ce ccttcncternnsrsensinmectanesens 13

vil

TABLE OF AUTHORITIES CITED—Continued

Page

Comm. on Foreign Relations, Covenant Against

Torture and Other Cruel, Inhuman, or Degrad-

ing Treatment or Punishment. S. Exec. Rep.

No. 101-30, at 30-31 (1992) ooo eens

Easterbrook, Presidential Review, 40 Case W.

Be ics Be TEs ricrnnensenscneneesnebenecennnts

Hart, The Relations Between State and Feceral

Law, 54 Colum. L. Rev. 489 (1954)..................

Judicial Action by the Provincial Legislature of

Massachusetts, 15 Harv. L. Rev. 208 (1902)...

Report of the Committee of the Council of

Censors 6 Bailey ed. | 784) (Pennsylvania).......

Resolution on the Death Sentence Passed on

Karla Faye Tucker in the United States, 1998

SR See EE inerveceventitnectanbstanioniteneanimantiapdennne

Restatement (Third) of the Law of Foreign

SII TTIIIITTTIITT vischesihtthcssictaipicigpeaibianbinasenienniichduinaing

Vermont State Papers 1779-1786 (Slade ed.

sii ccischideuitbeesehininpiindiiadilopanmeentiiiigiaiaiiiiigiaatniiiiass ;

S Laws of New Hampshire. Including Public and

Private Acts. Resolves, Votes. Etc.. 1784-1792

(Metcalf ed. 1916) ..................... iceumibisitaiinliad

13

tv

‘”

IN Tht

Supreme Court of the Anited States

No. 06-984

Jost ERNESTO MEDELLIN.

Petitioner.

V.

TH& SLATE OF TEXAS,

Re spondent ,

ON WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

AMICUS CURIAE BRIEF OF CONSTITUTIONAL AND

INTERNATIONAL LAW SCHOLARS IN SUPPORT OF

RESPONDENT STATE OF TEXAS

INTEREST OF AWicl

Amici are scholars who teach and write about constitutional

and international law.’ Erwin Chemerinsky is Alston & Bird

Professor of Law and Professor of Political Science at Duke

Law School. where he teaches Constitutional Law and

Federal Courts. John Eastman is Dean and Donald P

Kennedy Chair in Law at Chapman University School of

' Pursuant to Supreme Court Rule 37.6. counsel for the amu i certifies

that this brief was not authored in whole or m part by counsel for any

party . and that no person of entity other than the amici or their counsel has

made @ monetary contribution to the preparation or submission of this

bricf. Pursuant to Rule 37.314). letters of consent from both parties te the

filing of this briet have been filed with the Clerk

5

Law, where he teaches Constitutional Law. Thomas Lee ts

Professor of Law at Fordham University School of Law,

where he teaches Constitutional Law, Federal Courts, and

International Law. Michael Ramsey is Professor of |_aw at the

University of San Diego School of Law. where he teaches

Constitutional Law and Foreign Relations Law. Michael Van

Alstine ts Associate Dean and Professor of Law at the

University of Maryland School of Law. where he teaches

International Law. Arthur Mark Weisburd is Mavtha M.

Brandis Professor of Law at the University of North Carolina

School of Law, where he teaches International Law. John

Yoo is Professor of Law at Boalt Hall School of | aw, the

University of California at Berkeley. where he teaches

Constitutional and International Law. Ernest Young ts

Charles Alan Wright Chair in Federal Courts at the

University of Texas School of Law, where he teaches

Constitutional Law. Federal Courts. and Foreign Affairs Law.

Each of us has written about the issues of executive authority,

judicial power, or federalism raised by this case.

The signatories of this brief represent a wide range of

perspectives on executive authority and judicial federalism.

But we all agree that there must be some limits on the power

of the President to act unilaterally with the preemptive force

of federal law, as well as on the power of the national

political branches to interfere with the operation of the state

courts. We also agree that, on any plausible view of those

limits, the President has transgressed them in this case.

Although we appreciate the difficult position that the

Internationa: Court of Justice has placed the President in with

respect to Mr. Medellin’s case. our Constitution frequently

constrains the means available to pursue even the most

commendable ends. Upholding the President's action here

~ We file this brief in our personal capacities as scholars. nene of our

respective universities takes ans position on the issues im this case

3

would set a dangerous precedent both for Executive authority

and for judicial independence.

SUMMARY OF ARGUMENT

This odd case raises fundamental questions about the

Executive's authority vis-a-vis Congress and the authority of

the national political branches vis-a-vis the state courts.

Construing the President's terse and cryptically worded

“Memorandum for the Attorney General” as a mandatory

directive to the state courts, the United States asserts a

unilateral executive authority to preempt neutral state-law

limitations on the jurisdiction of the state courts. Such an

action would not execute any current international agreement.

because the United States has conceded that neither the

Vienna Convention on Consular Relations. the Optional

Protocol to that agreement, nor the Avena judgment of the

International Court of Justice require domestic courts to set

aside their ordinary rules of procedural default in cases where

a foreign national belatedly raises an objection under the

Convention. Instead, the President seeks to act unilaterally.

asserting that the Memorandum has preemptive § effect

analogous to that of an Executive Agreement—but without

any such agreement. The better analogy ts that the President

seeks to make a non-self-executing international obligation —

the Avena judgment have direct domestic effect. but our law

of treaties plainly contemplates that Congress must imple-

ment non-self-executing international obligations. urless the

obligation falls within Executive authority that the President

would otherwise possess apart from the agreement. Finally.

and most importantly. federal intervention in state <riminal

proceedings is an area that Congress has delegated to the

federal courts under the habeas statute, which is itsell a

product of finely calibrated legislative compromise. Execu-

tive action to interfere with state court judgments in ways that

federal courts could not, because of established limits on their

habeas jurisdiction. thus talls within the distavored category

4

under Justice Jackson’s tripartite tramework in the Stee/

Seizure Case.

This case also raises fundamental questions of judicial

independence. While this Court has held that state courts

must hear federal claims if they have jurisdiction adequate to

do so, Testa v. Katt, 330 U.S. 386, 394 (1947). it has never

held that this obligation requires a state court to disregard a

neutral and general limitation on its jurisdiction. Conversely,

by directing state courts to resolve difficult questions

concerning their jurisdiction to review defaulted Vienna

Convention claims in favor of granting the “review and

reconsideration” ordered by Avena, the Memorandum uncon-

stitutionally seeks to “prescribe rules of decision to the

Judicial Department of the government in cases pending

before it.” United States y. Klein, 80 US. (13 Wall.) 128.

146 (1871). And by requiring the state courts to reopen final

judgements concerning the Avena prisoners, the Memorandum

violates the principle of finality established in Hayhurn’s

Case, 2 U.S. (2 Dall.) 408 (1792), and Plaut v. Spendthrift

Farm, Inc., 514 US. 211 (1995). Although this Court has

developed the Klein and Plaut principles in cases concerning

the federal judicial power under Article Il, we submit that

judicial independence in the resolution of federal claims is no

less important in the context of state adjudication. Moreover,

the United States has advanced no limiting principle that

would confine the President's authority, if upheld here. to

interference with state courts.

This case is odd because of the mismatch between the

fundamental constitutional issues raised by the United States’

position and the form and wording of the President's Memo-

randum itself. That Memorandum is not actually directed to

the state courts, it contains no mandatory language. and it

speaks instead of “comity.” Nothing in it purports to reverse

the Executive's position in the Breard case. which was that

the President possessed only authority to request state

5

officials to heed an ICJ judgment on a Vienna Convention

claim—not to compel a halt to an execution. We therefore

urge the Court to avoid the constitutional issues presented in

this case and interpret the Memorandum as a request that state

courts employ all available measures to comply with the

Avena judgment.

ARGUMENT

I. THE PRESIDENT LACKS CONSTITUTIONAL AUTHOR-

ITY TO ISSUE THE ORDER.

As Justice Kennedy recently affirmed, “[{t}he proper

framework for assessing whether Executive actions are

authorized is the three-part scheme used by Justice Jackson in

his opinion in Youngsiown Sheet & Tube Co. v. Saw ver, 343

U.S. 579... (1952).° Hamdan v. Rumsfeld, 126 S.Ct. 2749,

2800 (2006) (Kennedy, J.. concurring in part). Because the

President's Memorandum falls outside the President's

unilateral power to act and runs contrary to the expressed

intent of Congress to carefully limit and calibrate federal

interference with state criminal proceedings, the President's

action here is invalid.

A. The Memorandum Embodies a Discretionary

Judgment, Not the Implementation of Pre-

Existing Law.

Although the United States seeks to characterize the

President's Memorandum as implementing requirements of

the Optional Protocol to the Vienna Convention and the

United Nations Charter, see Brief of United States. at 8-9,

that view contradicts the clear positions taken by the United

States in this and similar litigation. Although the Vienna

Convention on Consular Relations binds all US. courts, the

United States has endorsed this Court's holding in Sanchez-

Llamas \. Oregon, 126 S.Ct. 2669, 2682-88 (2006). that the

treaty obligation does not override ordinary rules of pro-

6

cedural detault. Bricf of United States, at 27-29. Likewise.

the United States has endorsed the further holding of

Sanchez-Llamas that the [CJ ruling in Avena itself is not

binding on United States courts. See 126 S.Ct. at 2683-2685:

Brief of United States as Amicus Curiae (in the Texas Court

of Criminal Appeals), at 35-43 (concluding that ‘an ICJ

decision is not privately enforceable™).°

This means that when the President acts tw require

domestic courts to comply with the Avena ruling and set aside

their own rules of procedural default, he is not enforcing a

requirement of either Avena (which does not bind those

courts) or the treaty (which permits application of procedural

default).’ The Memorandum instead represents a discre-

tionary judgment that, in order to further certain foreign

policy interests. the state courts should be required to do

something more than dvena or the treaty require. That

judgment is no more an adequate basis for presidential

lawmaking than President Truman's judgment that national

security required seizure of the nation’s steel mills.

* See also Breard ¥. Greene. $23 US. 371, 375-376 (1998) (per

curiam) The United States also agrees with Texas that Medellin on his

Own May Mot invoke rights created by Article 36 of the Vienna

Convention, because that article by itself does not create rights privately

entorceable in United States courts See. ¢ ¢. Brief of United States as

Amicus Curiae (in the Texas Court of Criminal Appeals). at 38-43

(“Article 36 does not give a forern national a private mght to challenge

his comviction and sentence based on an alleged denial of consular

assistance. ).

* The UN. Charter adds nothing to the argument. as it onl. requires

compliance with the Vienna Convention and the fvemu judgmen

* Chief Justice Vinsen’s dissent in }ownystown did invoke the UN

Charter as 4 basis tor President Truman's action. much as the President

imvokes that treaty here. See 343 US | at 668-609

5

B. The President Cannot Unilaterally Create

Supreme Federal Law.

The Executive has previously conceded that it lacks the

power to compel the States to ignore state crimina’ law in

circumstances like these. In Breard v. Greene, 523 U.S. 371

(1998). the Justice Department argued in its brief that the

President's only power over the States in circumstarces like

these was the power to persuade. not the power to compel:

“[T]he measures at [the United States’] disposal are a

matter of domestic United States law, and our federal

system imposes limits on the federal government's

ability to interfere with the criminal justice systems of

the States. The “measures at [the United States’ } dis-

posal” under our Constitution may in some cases include

only persuasion—such as the Secretary of State's

request to the Governor of Virginia to stay Breard’s

execution—and not legal compulsion through the

judicial system. That is the situation here.”

Brief of United States in Breard v. Greene, at “1. This

Court's opinion in Breard appeared to agree that the

President's options were limited to “diplomatic discussion|s]

with Paraguay” and “a letter to the Governor of Virginia

requesting that he stay Breard’s execution” Breerd. 523

U.S. at 378.

That the President's power to interfere with State law in

these circumstances is limited to the power of persuasion is

consistent with the text of the Supremacy Clause. which does

not contemplate a unilateral executive power to preerpt state

criminal law but rather recognizes only the Constitution.

federal statutes. and treaties as sources for valid, supreme

tederal law. See U.S. Const. Art. VI. cl.2.° As Justice Black

” Executive agencies exercising delegated powers may Preempt state

law. see Fideldin Fed Sav & loan Assn \ de la Cuesta, 438 US. IAL.

153-184 (1982). but the United States points to no such delegation here

8

observed in the Steel Seizure Case, “the President's power to

see that the laws are faithfully executed refutes the idea that

he is to be a lawmaker.” Youngstown, 343 US.. at 588. Yet

the President's Memorandum would override state criminal

law and rewrite it by replacing the Texas procedural-

detault rule with one issued unilaterally by the President. The

Constitution does not grant the President that kind of

unilateral authority.

The Jnited States seeks to justify the President's order by

resorting to the Executive's independent authority to act in

matters relating to foreign affairs. but that authority does not

encompass unilateral preemption of state criminal law.

Rather. the President's foreign-affairs power has been rec-

ognized as authorizing him to enter into executive agreements

with foreign nations, and this Court has held that such

agreements will at least sometimes preempt state liw. See.

e.g. American Ins. Assn Vv. Garamendi, 539 U.S. 396, 415

(2003): Dames & Moore vy. Regan, 453 U.S. 654, 669-670

(1981): United States v. Pink, 315 U.S. 203 (1942). United

States V. Belmont. 301 U.S. 324, 326 (1937). Those cases do

not cover the present circumstances. however. The relevant

agreements between the United States and Mexico are the

Vienna Convention and its Optional Protocol. but as we have

already discussed. neither of those sources of law mandate

what the Memorandum requires. The Memorandum is a

unilateral act of executive authority.

Moreover. all of the executive-agreement cases have

involved the narrow circumstance of a Presidential agreement

to settle civil claims of American nationals against a foreign

government. See Garamendi. 539 U.S... at 436-438 (Gins-

burg. J.. dissenting) (stressing the narrowness of the relevae

decisions). As Justice Souter was careful to poin: out in

Garamendi,

“Making executive agreements to settle claims of

American nationals against foreign governments is a

9

particularly longstanding practice. the first ¢xample

being as early as 1799... . Given the fact that the

practice goes back over 200 years [to the first

Presidential administration.| and has received con-

gressional acquiescence throughout its history. the con-

ciusion that the President’s control of foreign relations

includes the settlement of claims is indisputable.”

539 US.. at 415 (internal quotations omitted). This Court has

never accorded preemptive effect to an executive agreement

outside this narrow context-—much less an agreement that

intrudes into the State’s sovereign authority to enforce its

criminal law. Compare id., at 425 (stressing “the weakness of

the State's interest, against the background of traditional state

subject matter”) with United States v. Morrison, 529 US.

598, 617 (2000) (“| W]e can think of no better example of the

police power. which the Founders denied the National

Government and reposed in the States, than the suppression

of violent crime and vindication of its victims.”). Given the

closely divided court in Garamendi, the narrowness of the

cases on which it relied, and the evident tension of according

tull preemptive effect to sole executive agreements with a

Supremacy Clause that mentions only treaties. this Court

should hesitate to extend the reach of that decision.

The United States’ position in this case. however, would

wholly disregard the key limit preserved in even the broadest

possible reading of Garamendi—that is, the presence of a

bilateral agreement. See Brief of United States. at 23. But that

limit is the only stopping point remaining. if this broad

reading of Garamendi were adopted, before holding that the

President's discretionary determinations have the force of

law. The Constitution generally imposes difficult procedural

hurdles upon the making of supreme federal law, U.S Const.

Art. I. $7. and this Court has rejected pleas that these hurdles

may be circumvented in the name of efficiency ard good

policy. See. e.g. Clinton vy. City of New York, 824 U.S. 447,

448-449 (1998): INS v. Chadha, 462 U.S. 919, 952. 956-959

10

(1983). Garamendi watered down those safeguards by

analogizing a sole executive agreement to a treaty, which

must be ratified by a Senate by supermajority vote. but

adopting the President's position would eliminate those safe-

guards entirely. This Court should not mistake Garamendi’ s

exception for the rule that the formal requirements of federal

lawmaking are to be respected.

Nor are those requirements without practical vaue. In

particular, sole executive agreements must be reported to

Congress under the Case-Zablocki Act. | U.S.C. §112(b)

(2004). and they generally receive far more scrutiny than

unilateral statements of executive policy. By contrast. the

odd form of the President's Memorandum is likely attrib-

utable to a desire to avoid a public debate on interference

with the Texas death penalty at the behest of an international

court,

Acknowledging the unilateral power claimed by the

President to override state law would give the President an

essentially unlimited ability to preempt state law based on the

assertion of a foreign-affairs interest. For example. the

President could pardon state prisoners—notwithstanding the

textual limitation of his pardon power to crimes against the

United States, see U.S. Const., Art. Il, §2-—if doing so would.

in his opinion, advance the Government's foreig.-policy

objectives. Thus. according to the United States. when Texas

prepared to execute Karla Faye Tucker in 1998. the President

could have halted that execution, overriding state law.

because there was a widespread outcry from foreizn yov-

ernmments and human rights organizations. See eg,

Resolution on the Death Sentence Passed on Karla Faye

Fucker in the United States, 1998 0.5. (C 34) 168 (resolution

of the European Parliament strongly condemn ng_ the

execution). Similarly, the President could preempt state

environmental policies aimed at combating global warming

if, in his view, the existence of such policies undermined the

United States’ position in negotiations with other nations that

such policies are infeasible.

In sum, the President's position. if accepted. would afford

the Executive a practically unfettered power to override state

law based on his mere assertion that preemption serves the

foreign policy interests of the United States or somehow

relates to a valid treaty. That view of a sweeping Presidentiai

power is unsupported by the constitutional text. and z2oes far

bevond what any previous case has recognized.

C. The President Cannot Legislate to Execute

Non-Self-Executing Treaties.

The radical implications of the President's position here are

most clearly revealed in the United States’ argument that.

“when the President acts pursuant to a duly ratified treaty and

his own constitutional authority, he acts with the full

authority of the United States, and his authority is at its

zenith. . . . Presidential action that is expressly or implicitly

authorized by a treaty is akin to Presidential action that falls

within the first category [under Youngstown). Brief of

United States, at 10. As we have noted, the United States has

consistently affirmed that obligations imposed by the

Optional Protocol and the Avena decision are not self-

executing. /d., at 28-29. Thus. what the President claims is

the authority to decide when and how non-sclf-cexecuting

treaty obligations should be executed. without going to

Congress for implementing legislation.

The initial decision whether a treaty is to be self-cxecuting

belongs to the treaty makers—that is. the President with the

concurrence of the Senate. See Restatement (Third) of the

Law of Foreign Relations $111 (1987). Courts have thus

looked to the intent not only of the President but also of the

Senate in determining whether a treaty is self-exccuting.

See. e.g. Igartua-De La Rosa \. United States, 417 F 3d 145. 150

(CAL 2005) (en banc) (loosing to “the joint position of the President and

12

This Court has already determined that decisions of the 1CJ

are not binding on United States courts, see Sanchez-Llamas,

126 S.Ct., at 2683-2685, and the United States concedes that,

when it ratified the Vienna Convention and its Optional

Protocol, the Senate understood ICJ judgments under that

protocol to be non-self-executing. Brief of United States, at

26-27, see also Brief of Texas in Opposition, at 22-24

(canvassing the ratification histories of the U.N. Charter and

the Optional Protocol).

Since the Optional Protocol and the U.N. Charter are not

self-executing, the question is whether the Prcsident’s

Memorandum can execute them unilaterally. It cannot. The

President may execute non-self-executing treaties by actions

within the scope of his executive authority og. by

withdrawing troops from a disputed territory under his

commander-in-chief power or refraining from engaging in

torture. But the President may not execute a treaty by doing

something that he would not otherwise be empowered to

do — that is, in a way that requires legislation. Cases mvolving

non-self-executing treaties thus generally refer to chem as

requiring execution Ay Congress.” The decision to execute a

the Senate that a treaty is not self-evecuting™): Beasley v. Johasen, 242

F.3d 248, 267 (CAS 2001) (The Senate's intent was clear the treaty ts

not self-executing )

“See eg. Whitney v. Robertson, 124 US. 190, 194 (1888) (When

the stipulations are not self-executing. thes can only be enforced pursuant

to legislation to carry them into effect”): Foster & Elam \. \cilson, 27

US. (2 Pet.) 253. 314 (1829) (observing that non-self-evecutir g treaties

function as contracts between nations. “and the legislature must execute

the contract before it can become a rule for the Court’): Jeartwa-Je la

Rosa, 417 F 3d. at 190 (observing that non-self-executing treaties “are not

domestic law unless Congress has enacted implementing statutes”).

Beazley, 242 § 3d. at 267 (°’Non-self-evecuting means that asent any

turther actions by the Congress to incorporate them into domestic law. the

courts may not entorce them”): /rofeova \. é mion of Soviet Socralsst

Republics, 761 F 2d 370, 373 (CAT 1985S) [Treaties made by the United

States are the law of the land. U.S. Const. art V1. but if not implemented

}3

non-self-executing treaty is thus not generally one that the

President may make unilaterally. As Judge Boudin -ecently

pointed out, “[w]hen the President negotiates . . . a non-self-

executing treaty, and when Congress refuses to adopt

implementing legislation for a non-self-executing treaty, both

are performing functions entrusted to them by the Con-

stitution.” /gartua-De La Rosa v. United States, 417 F.3d

145, 150 (CA1 2005) (en banc).

There ts very good reason to uphold this limitation on the

President's power. Given the vast range of non-sclf-executing

treaties to which the U.S. is a party, holding that the President

may take legislative action to execute any of them would

have radical consequences. The Senate ratified many of these

treaties subject to explicit reservations that they were non-

self-executing.” but those reservations would hardly protect

the Congress's legislative prerogatives if the President could

act unilaterally and with the force of law to execute a non-

selt-executing treaty. There is no principled difference.

moreover, between allowing the President to override such an

explicit reservation and allowing the President to exccute

unilaterally a treaty, like the Optional Protocol. that the

Senate originally understood to be non-self-executing at

ratification. The President's position here intrudes upon

Congress's control over implementing legislation and. in the

process, vastly extends the scope of his own power.

bs appropriate legtsiation they do not provide the basis for a private

lawsuit unless they are intended to be self-executing ~)

' See. eg. Comm. On Foreign Relations, International Covenant on

Civil Rights. S. Exec. Rep. No. 102-123. at 9 19, 2341994), Comm. on

Foreign Relations. Covenant Agamst Torture and Other Cruel. Inhuman,

or Degrading Treatment or Punishment. S. Exec. Rep. No. 101-130. at 30-

SEC T992D),

I4

D. The President’s Order is Contrary to the Will

of Congress as Expressed in the Habeas

Statute.

This case invelves federal intervention in state criminal

proceedings to secure federal rights. This is not, to put it

mildly. unexplored territory. Rather, such interven-ion has

been the subject of extensive Congressional regulation since

1867 under the habeas corpus statute. See Act of Feb. §,

1867. 14 Stat. 385 (extending federal habeas to cover persons

in state custody). That statute and its subsequent amendments

represent an intricate and carefully calibrated set of legislative

compromises; likewise, judicial interpretations of that statute

have carefully balanced the need to enforce federal rights

with the imperative to avoid undue interference wth state

judicial processes. The President's action here. however.

runs roughshod over these particular balances and, more

broadly, over Congress's judgment that the federal courts are

the appropriate institution to supervise state ccurt en-

torcement of federal rights. By requiring the state courts to

reopen a state conviction im circumstances in which the

United States concedes that the Aabeas statute would forbid

federal courts to intervene. the President's action is contrary

to the will of Congress and thus falls within Youngstown’ s

most disfavored category of executive action.

To the extent that the Federal Government has power to

interfere with state criminal proceedings. that authority

derives from powers specifically vested in Congress: the

power to enforce federal constitutional rights. U. S. Const.

Amdt. 14. $5. to regulate the jurisdiction of the tederal courts,

id. Art. Hl, §1. and to regulate the writ of habeas corpus

specifically under the Suspension Clause. ad Art. 1. §% Fr

parte Bollman & Swartwout, 8 U.S. (4 Cranch) 78, 101

(1807): Ex parte Merryman. 17 F-Cas. 144 (CCD Md. 1861)

Congress has exercised that power by drafting statutes to

govern the granting of writs of habeas corpus to prisoners in

1S

custody because of a state-court judgment. Congress com-

prehensively reassessed the question of federal) inter-

vention in state criminal proceedings in the Anti-lerrorism

and Effective Death Penalty Act of 1996. Pub. L. No. 104-

132, 110 Stat. 1214. The AEDPA amended the federal habeas

Statute to set out detailed and strict conditions for when a

federal court may intervene to reopen state criminal

proceedings.

Four specific aspects of the statutory Aaheas regime are

most relevant here. First, Section 2254(b)(1) requires the

petitioner to exhaust state remedies. The doctrine of pro-

cedural default, barring a federal court from hearing a claim

that was not properly raised before the state courts and can no

longer be raised there, simply enforces the exhaustion

requirement. By seeking to override Texas's own rules of

procedural default barring state collateral review of Medel-

lin’s claim, the President attacks rules with which Congress

not only chose not to interfere, but which Congress and the

federal courts also built into the federal habeas regime.

Second. Section 2254(d)(1) forbids federal haheus relief

unless the state court's judgment was “contrary to. or

involved an unreasonable application of. clearly established

Federal law, as determined by the Supreme Court of the

United States.” This provision designates this Court. not the

President. as the primary guarantor of federal rights in state

criminal proceedings. Moreover. this Court has plainly held

that the Vienna Convention does not require state courts to set

aside their rules of procedural default. See Sanchez-Llamas,.

126 S.Ct. at 2682-2688. The President's action here thus

interferes with Congress's commitment of authority to this

court to construe the federal rules binding on state courts.

Third, Section 2254(e)(2) restricts the ability of a federal

court to hold an evidentiary hearing on a tederal claim when

the federal petitioner has not developed the factual basis for

his claim in state court’ The Breard Court cited this p-ovision

16

as trumping any claim that the Vienna Convention requires

federal courts to set aside ordinary rules of procedural default

and allow presentation of treaty claims outside the ordinary

habeas rules. See Breard. 523 U.S., at 376.

Fourth, the AEDPA sharply limits the extent to which

federal habeas courts can consider treaty claims like

Medellin’s. Federal rights under treaties fall within the initial

habeas jurisdiction of the district courts, but a district court

ruling is available only if a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. §2253(c)(1). Such an

certificate may issue. moreover, “only if the applicant has

made a substantial showing of the denial of a constitutional

right” 28 U.S.C. §2253(c)2). When Medellin’s case was

previously before this Court, the United States argued that

this plain language excluded appea!s from the denial of reliet

on grounds arising from a treaty. Brief of United States as

Amicus Curiae in Support of Respondent in No. 04-5928.

Medellin vy. Dretke, at 13-15 (Feb. 2005). The point. of

course, is not that this provision bars review in the present

posture but rather that Congress has carefully limited the

extent to which federal courts can reopen a state convic-

tion on treaty grounds. The President's Memorandum runs

contrary to that limitation.

These specific provisions simply emphasize what the

whole history of habeas corpus im this country shows:

Congress has pervasively regulated the scope and limits of

federal interference with state court convictions. The Presi-

dent's Memorandum undertakes to reopen a state conviction

in circumstances under which a federal court would plainly

lack power to act. The fact that Congress has never antic-

ipated such executive interference and hence never sought

to forbid it © shicithy—can be of little comfort to the United

States. Congress has made clear that the federal courts are its

chosen instrument for supervising the state judiciaries. and

the President ts no more entitled to usurp that role than he ts

17

to cast aside the specific limitations that Congress has placed

on its exercise

Nor can Congress's ratification of the Vienna Convention

in 1969 give the stamp of congressional approva to the

President's action. The Supreme Court has made clear that a

Vienna Convention claim, like all claims based on federal

law, is subject to the restrictions imposed by the AEDPA:

“[A|lthough treaties are recognized by our Constitution

as the supreme law of the land, that status is no less true

of provisions of the Constitution itself, to which rules of

procedural default apply... The Vienna Convention . . .

has continuously been in effect since 1969. But in 1996.

.. . Congress enacted the Antiterrorism and [ fiective

Death Penalty Act (AEDPA). . . . Breard’s aility to

obtain relief based on violations of the Vienna

Convention is subject to this subsequently enacted rule.

just as any claim arising under the Unitec States

Constitution would be.”

Breard, 523 U.S., at 376. Medellin’s Vienna Convention

claim, too, is subject to the AEDPA limitations. which he

cannot overcome. The President's Memorandum. if read as an

order, attempts an end-run around those AEDPA restrictions,

and so puts the President into conflict with the will of

Congress.

Because the President's Memorandum is contrary to the

will of Congress. a mandatory reading of that Memorandum

describes an order that falls into Youngstown’s third category.

where the President's power is at its “lowest ebb” and his

claims of wide authority “must be scrutinized with caution.”

Youngstown, 343 U.S... at 637-638 (lackson. J. concurring).

The United States can cite to no Supreme Court decision

upholding presidential action under these circumstances. Cf..

eg. Dames & Moore. 453 US... at 680 ("Crucial to our

decision today ts the conclusion that Congress has inplicithy

approved the practice of claim settlement by executive

agreement. ).

18

Il. THE PRESIDENT’S ORDER UNCONSTITUTIONALLY

INTERFERES WITH THE INDEPENDENCE OF STATE

Courts.

The President's Memorandum not only exceeds the bounds

of Executive authority vis-a-vis Congress. it also contravenes

fundamental principles of judicial independence and fed-

eralism. Although historical practice establishes a limited

Presidential authority to stay or resolve claims pending in

domestic courts as an adjunct to his authority to recognize

foreign governments, see supra Part |, we are aware of no

prior instance in which the President has sought to compel

state courts to exercise yurisdiction they do not have, mandate

a particular resolution of a key issue in a particular set of

cases, or reopen final judgments. And we can see no

principled reason why. if the President can do these things to

the state courts, he may not exert similar powers over Article

IIT tribunals.

A. The President May Not Require State Courts to

Exercise Jurisdiction That They Do Not Possess

Under State Law.

In Testa v. Katt, 330 U.S. 386 (1947). this Court held that

the state courts ordinarily may not decline to hear federal

causes of action, even if those causes of action run contrary to

state policy. The Court was careful to note. however, that the

State court enjoyed “jurisdiction adequate and appropriate

under established local law to adjudicate this action” /d. at

394. Other cases in this ven. both before and after /esta.

have likewise qualified the state courts’ obligations to entorce

federal law by noting that the federal claim did not fall

outside the state court’s preexisting jurisdiction.” As the

' See. eg. Howlett, Ruse. 496 US. 356, 369 (1990) (noting that “a

State court may not dens a federal right. when the parties and controverss

are properly before it. in the absence of a ‘valid excuse”) (emphasis

added): Mondous New bork. New Haven & Hartford RR Co 2235S

~_—

19

Court made clear in Howlett v. Rose, 496 US. 356, 372

(1990), “[t}he requirement that a state court of competent

jurisdiction treat federal law as the law of the land does not

necessarily include within it a requirement that the State

create a court competent to hear the case in which the federal!

claim is presented."

Henry Hart's observation a half-century ago continues to

state the norm in our federal system: “Ihe general rule.

bottomed deeply in belief in the importance of state control of

state judicial procedure, is that federal law takes the state

courts as it finds them.” Hart, The Relations Between State

and Federal Law, 54 Colum. L. Rev. 489, 508 (1954).'°

There are two exceptions to this principle that may require a

state court to apply federal procedures when hearing a federal

claim. It is not at all clear that either exception could warrant

an extension of state jurixdiction not authorized by state law.

In any event, neither exception applies to this case.

1. 56 (1912) (holding that rights under the Federal Employer's Liabulity

Act were enforceable in state court. but noting that Congres; had not

attempted “to enlarge or regulate the jurisdiction of state courts. of to

contro! or atfect their modes of procedure”); Claflin. Housemaa,93 US

130. 137 (1876) (holding that federal rights of action are enforceable in

state court. so long as the state court is “competent to decide rights of the

like character and class”): see also Afden \. Maine. $27 U.S. 706, 752

(1999) (deseribing Jesta’s holding as applying to “state courts of

‘adequate and appropriate’ purisdiction”)

" See also Minneapolis & St Louis RR Cos Bombolis, 241 US

211, 222 (1916) (rejecting the idea that the state court's duty to enforce

tederal law “depended upon the conception that for the purpose ot

enforcing the [federal] right the state court was to be treated as a Federal

court deriving its authority not from the State creating it. but trom the

Umited States”): see generally Bellia. federal Regulation of State Court

Procedures. 110 Yale L. J. 947. 970-92 (2001)

See Johnson \. bankell, $20 US. O11, 919 (1997) (relying upon

Protessor Hart's observation): /ow lett, 496 US... at 372 (same)

20

The first exception helds that a state court must apply

federal procedures that are “part and parce! of the remedy

afforded” under federal law. Dice v. Akron, Cunton &

Youngstown R. Co., 342 U.S. 359, 362 (1952) (quoting Bailey

v. Cent. Vermont Ry. 319 U.S. 350, 354 (1943)). The right to

be excused from procedural default, however. is hardly part

and parcel of Medellin’s federal treaty rights. Indeed. this

Court has held—- with the concurrence of the United States

that the Vienna Convention does not supersede procedural

default rules. Sanchez-Llamas, 126 §.Ct., at 2669. And it is

clear that such rules would block Medellin’s claim if it were

brought in federal court. Medellin’s federal rights under the

treaty were fully satisfied by the opportunity to raise those

rights at trial.

The second exception is that particular state procedures

may be preempted if they unduly burden particular federal

rights. In Felder v. Casey, 487 U.S. 131 (1988). this Court

held a state notice-of-claim statute for suits against state or

local officials to be preempted as to federal suits under 42

U.S.C. $1983 (1996). But Felder made clear that its holding

did not abrogate the general rule that state courts may decline

to hear federal claims on the basis of neutral and generally

applicable rules of procedure. See 487 U.S., at 141-142."

The Court explained:

“Nor is this condition a neutral and uniformly applicable rule of

procedure; rather. it is a substantive burden imposed only upon

those who seek redress for injuries resulting from the use or

misuse of governmental authority. Second, the notice provision

discriminates against the federal right. While the State affords the

victim of an intentional tort two years to recognize the cor ypensable

nature of his or her injury. the civil rights victim is given only four

months to appreciate that he or she has been deprived of a federal

constitutional or statutory right.”

fd This Court emphasized that discrimination was key to /edder s holding

in Johnson, 320 US. at 918. 1.9. It was also crucial in Feld that the

state rule in question would not apply if the 1983 clam had been brought

21

—

There is no serious argument that the state’s procedural

default rule is in conflict with federal policy here: it mirrors

the federal rule, the U.S. has taken the position that it

legitimately applies, and in fact the U.S. has acted te protect

such rules for all future cases by withdrawing from the ICJ

protocol.

This well-established line of cases suggests that an attempt

by Congress to require the state courts to disregard neutral

and generally applicable restrictions on their jurisdiction

would raise serious constitutional questions. But the

President’s power is even narrower than Congress’s. After

all, the Executive ordinarily may not even bring suit in a

court that already has jurisdiction without Congressional

authorization. See United States v. San Jacinto Tin Co., 125

U.S. 273, 285 (1888). There is no precedent for executive

authority to commandeer the state courts and require them to

exercise jurisdiction that they do not otherwise possess.

B. The President May Not Direct the State Courts

to Decide a Particular Issue in a Particular

Case in a Particular Way.

The availability of review is a crucial issue ia every

collateral attack upon a prior judgment of conviction. State

courts decile this question by applying their own rules of

procedural defauit and any other constraints on collateral

attack under state law. The President's memorandum.

however, reaches into a narrow set of particular cases—those

involving the Avena prisoners—and directs the state courts to

resolve any questions concerning the availability of review of

those prisoners’ Vienna Convention claims in favor of

in federal court, See 487 LS. at 141. Here. of course. the federal courts

apply an identical procedural default rule. which the President has not

sought to disturb

22

review.’ This dramatic and unprecedented intrusion on

judicial independence violates this Court's stricture that even

Congress may not “prescribe rules of decision to the Judicial

Department of the government in cases pending before it.”

United States v. Klein, 80 U.S. (13 Wall.) 128. 146 (1871).

The reach of Alein is notoriously ambiguous, but this Court

stated the key limiting principle in Robertson v. Seattle

Audubon Society, 503 U.S. 429 (1992). Robertson upheld a

statute providing that particular actions by the Bureau of

Land Management, which had been challenged in pending

litigation specifically mentioned in the statute, satisfied the

relevant statutory requirements. The key point. the Court

said, was that the new statute “compelled changes in law. not

findings or results under old law.” /d., at 438. The President's

memorandum, on the other hand, does not purport to change

the underlying law in any way.

This case ts substantially easier than Alein or Robertson in

at least three respects. First. the directive to the courts in this

case is not contained in a statute, executive order, or any

other measure that even purports to be of general ap-

plicability. Second, the actor is the President rather than

Congress. Unlike Congress. the President has no independent

or delegated authority to change the underlying law

governing these cases in the general way required by

Robertson. Third, the President has attempted to direct a

resolution of the relevant cases under state law. not federal

law. If it were otherwise, Medellin could have sought review

and reconsideration in the federal courts as well a» the state

courts. Instead. the state courts are obliged to construe their

own rules governing collateral review in such a way as to

* Although the President has not directed the state courts to grant a

new trial. there is no reason in principle that he could not do so under the

United States’ theory. That would merely require directing the o itcome of

two issues the availabilty of review plus the existence of prejudice

arising trom the Vienna Convention viol2t.oa—rather than one

23

permit review and reconsideration. But even if the national!

government has the authority to preempt those rules by

promulgating a contrary general federal rule of decision, it

has not done so here. Even this Court, of course. cannot

direct the state courts to construe state law in a particular

way. Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590

(1874).

Alein and Robertson did turn on the integrity of the federal

judicial power protected under Article Hl, and one might

argue that the Constitution affords no similar guarantee for

the integrity of the state judicial power. That argument

would, in our view, be profoundly mistaken.'” Tae Con-

stitution conferred no explicit power upon Congress to

interfere with proceedings in the state courts. Under the

Madisonian Compromise, the Framers left: Congress the

choice whether to establish lower federal courts, and in fact

Congress chose not to confer general original jur sdiction

over federal questions on those courts until 1875. Under

these circumstances, most federal issues were presumptively

litigated in the state courts im the first instance. and the

integrity of those proceedings against political branch

interference would have been of no less importance than the

"As this Court observed in Alden \. Maine, $27 U.S. 706, 782-733

(1999). “[i}t would be an unprecedented step . . . to infer from the fact that

Congress may declare federal! law binding and enforceable in state courts

the further principle that Congress authority to pursue federal objectives

through the state judiciaries exceeds not only its power to press other

branches of the State into its service but even its control over tre federal

courts themselves. The conclusion would imply that Congress may in

some cases act only through instrumentalities of the States.” See also

Helvering \. Gerhardt, 304 US. 405, 415 (1938) (describing “the estab-

lishment of the judicial department” as one of the “sovereign and reserved

rights” rights of the States: “{w Jithout this power. and the exercise of it

no one of the States under the form of Government guaranteed by the

Constitution could long preserve its existence) (quoting Collector ¥. Day.

7S US CET Wally 113. 126 (¢1970))

24

integrity of proceedings in the federal district and circuit

courts. Moreover, this Court has suggested that it may only

review on appeal decisions that have the requisite integrity to

be “judicial judgments.” Postum Cereal Co. v. California Fig

Nut Co., 272 U.S. 693, 698-699 (1927). If the state judicial

power were somehow more open to political branch

interference than the federal one. this Court would have had

to grapple with the implications of that difference for its

ability to review state court judgments in federal question

cases. Finally, over 200 years of statutes and doctrine from

the Anti-Injunction Act to Murdock to the abstention doc-

trines to the statutory and common law restrictions on habeas

review -confirm the presumptive independence of the state

courts from federal interference.

The truth is that nothing in the President's action or

argument here is limited to cases in the state courts If the

President's say-so that a court must set aside rules barring

collateral review has the force of federal law, then that law

would bind both the state and federal courts. Nor is the

President's asserted authority confined to cases in which his

interference benefits the party asserting a federal righ:. If the

President felt that a court had been overly solicitous of a

prisoner's claims of prejudice from a Vienna Convention

violation, for example, no reason appears why he might not

require “review and reconsideration” of that result. To take

an example only slightly further afield. it is hard to see why

the President might not direct particular results denying

review or relief in federal court cases involving suspected

terrorists. The President's argument here is sweeping indeed.

and it is impossible to tell where its principle stops.

C. The President May Not Require State Courts to

Reopen Final Judgments.

The President's Memorandum required the Texas courts to

reopen Medellin’s conviction and sentence notwithstanding

that the state court’s judgment had become final. It is clear.

25

in the Article III context, that judicial judgments cannot be

made subject to executive revision, see Hayvhurn's Case. 2

U.S. (2 Dall.) 408 (1792), and that final judgments may not

be reopened by legislative command, see Plaut, 514 U.S. at

225-226. As we argued in the last section, the independence

of the state courts from control by the federal political

branches was no less central to the Founders’ design than the

independence of the Article III courts. The President is thus

no more entitled to revise a final state court judgment than he

would be to revise the judgment of a federal court.

This Court's opinion in Plaui is instructive on this score.

That opinion cited numerous authorities from the Founding

period and the carly republic for the general proposition that

political-branch interference was inconsistent with the very

nature of judicial power. See id, at 219-225. The principles

discussed were not unique to Article Ill, and many of the

references were to state judgments." The Court concluded

that finality is intrinsic to the very notion of judicial power of

which Article III is but an instance: “a judgment

conclusively resolves the case’ because ‘a judicial Power is

one to render dispositive judgments.” /d, at 219 (quoting

Easterbrook, Presidential Review, 40 Case W. Res. L. Rev.

905. 926 (1990)). All of the reasons for respecting the

integrity of state judgments canvassed in the preceding

section support this conclusion.

' Jd. (citing Calder vy. Bull, 3 U.S. (3 Dall.) 386 (1798) (discussing

Connecticut judgments): Lewis ¥. Webb. 3 Greenleat 326 (Me. 1825):

Bates \. Kimball, 2 Chipman 77 (Vt. 1824). Merril \. Sherburne. 1 Ni

199 (1818). Judicial Action by the Provincial Legis ature of

Massachusetts, 15 Harv. L. Rev. 208 (1902): § Laws of New Hampshire.

Including Public and Private Acts. Resolves. Votes. Ete. 1784-1792

(Metcalf ed. 1916). Vermont State Papers 1779-1786. pp. 331. £33 (Slade

ed. 1823). Report of the Committee of the Counct! of Censors 6 (Bailes

ed. 1784) (Pennsy Is ania)).

26

Habeas corpus is a limited exception to the firality of

judgments in criminal cases. But the existence of habeas

review does not mean that there is no constitutional

protection for finality of state judgments. Habeus review is

considered an exercise of appellate jurisdiction. see &x parte

Bollman, 8 U.S. (4 Cranch), at 101; it thus falls withir: Plaut’s

recognition that appellate review by another judicial tribunal

does not violate the principle of finality. See 514 US. at 227.

In Medellin’s case, by contrast. habeas review is corcededly

barred. and the President seeks to overturn the state

court's judgment that it lacks jurisdiction. This executive

intervention into the judicial process offends both //avburn

and Plaut.

Recognizing executive authority to reopen state court

judgments would have far-reaching consequences. It would.

for example. obviate the Article II's restriction of the

President's pardon power to crimes against the United States.

Moreover. there is no principled reason to confine the

President's assertion of authority to reopen final judgments to

the state courts or to judgments of conviction, as opposed to

acquittal. The fact that the President seeks to use this broad

power in the present case for the relatively benign purpose of

satisfying an international court's judgment should not blind

this Court to the implications of an executive power to reopen

state or federal judgments whenever the interests of national

security require it.

Hil. Tee PReESIDENT’S Meworanptmu ts Best

CONSTRUED AS NON-BINDING.

[his case raises fundamental questions of constitutional

structure. But these questions only arise if the President's

Memorandum ts construed as a mandatory order purporting to

bind the state courts to disregard limitations (n_ their

jurisdiction. The Memorandum simply does not say that Its

wording is consistent with the position that the President took

27

in Breard, which is that President has power under these

circumstances to request action by state authorities but not to

compel. [his Court should adopt that construction and avoid

the fundamental constitutional! questions that would otherwise

arise in this case.

If the President's Memorandum is an order. it is a very odd

one. It is styled as a “MEMORANDUM FOR THE

ATTORNEY GENERAL,” and it is direcied to an officer of

the federal Executive, rather than to the state courts. The

operative language consists of a single sentence:

“| have determined, pursuant to the authority vested in

me as President by the Constitution and the laws of the

United States of America, that the United States will

discharge its international obligations under the decision

of the International Court of Justice in [Avena] by

having State courts give effect to the decision in

accordance with general principles of comity .n cases

filed by the 5] Mexican nationals addressed in that

decision.”

Pet. App. 187a. This language does not vrder anyone to do

anything: tt creates no new legal obligations. It certainly does

not purport to override Texas's rules or to conter new

jurisdiction on the state courts. The text contemplates

enforcement of the Avena decision in the same way that the

Vienna Convention itself is enforced in this country: through

the efforts of state and local law enforcement officials who

come into contact with foreign nationals. without any federal

implementing legislation creating further legal obligations.

The wording of the Memorandum suggests that state courts

should read the Avena decision and determine what “cffect™ it

can be given, consistent with other applicable principles of

state and federal law. Some state courts may determine that

their habeas regimes permit them to grant the “review and

reconsideration” directed by the ICJ: for instance. some of the

Avena prisoners may not have defaulted their Vienna Con-

vention claims or may still be on their first habeas petition

28

Nothing in the Memorandum purports to require recon-

sideration when. as in Texas, state law limits the discretion of

the state courts more strictly. Given that the United States

Government has consistently argued that the application of

federal and state procedural rules that may limit the right to

raise Vienna Convention claims is valid and consistent with

the treaty. it would be exceptionally odd to read the

President's Memorandum as overriding those rules. Nothing

in the Memorandum suggests that the Executive means to

reverse the position it took in Breard, which was that the

President has power under these circumstances to req west, but

not to compel. See Brief of United States in Breard v.

Greene, at 51.

Any lingering doubt as to the President's meaning ought io

be dispelled by his emphasis on “principles of comity”—

principles which are, by definition, discretionary. See. ¢.¢..

Societe Nationale Industrielle Aerospatiale v. United States

Dist. C1, 482 U.S. 522. 543, 1.27 (1987) (“Comity refers to

the spirit of cooperation in which a domestic tribunal

approaches the resolution of cases touching the laws and

interests of other sovereign states”). The President surely

knew that no court is free, on grounds of comity. to override a

clear statutory constraint on its jurisdiction.

Multiple canons of construction favor this non-mandatory

reading of the Memorandum. The Court has repeatedly held

that “[ijf Congress intends to alter the usual constitutional

balance between the States and the Federal Government. it

must make its intention to do so unmistakably clear in the

language of the statute.” Gregory v. Ashcroft. 501 US. 452,

460 (1991) (quoting Will v. Mich Dept of State Police. 49\

US. 58. 65 (1989)). Similar canons disfavor reading

ambiguous federal enactments to preempt state law, Bates v.

Dow Agrosciences LLC, 544 US. 431, 448 (20058): Rice v

Santa ke Elevator Corp., 331 U.S. 218. 230 (1947). and

mandate the “utmost caution” before construing federal law

29

to require a state court to hear federal claims notwithstanding

“a neutral state rule regarding the administration of the

courts.” Howlett, 496 U.S., at 372. Most generally. “where

an otherwise acceptable construction of a statute would raise

serious constitutional problems. the Court will construe the

Statute to avoid such problems unless such construction is

plainly contrary to the intent of Congress.” Edward J

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr Trades

Council, 485 U.S. 568, 575 (1988)). This Court should

exercise the same caution in construing the President's

Memorandum.

Nor, finally. is the Department of Justice's interpretation of

the Memorandum as mandatory entitled to deference. The

Department is not construing its own rule or regulation. nor

can there be any analogy to the deference ordinarily accorded

an administrative agency's construction of a statute that it is

charged to enforce. See Chevron U.S.A., Inc. v. Natural Res.

Def. Council. Inc., 467 U.S. 837 (1984). There is no

deicgation of authority to Department of Justice to enforce

the Vienna Conveniion or the Memorandum, let alone of

authority to issue binding interpretations of those measures.

See United States v. Mead Corp. 533 U.S. 218, 229-

230 (2001). Nor is the deference sometimes accorded to

Executive interpretations in the realm of foreign affairs

appropriate here. because the Department of Justice 1s not the

agency that negotiated the Vienna Convention or that is

charged with overseeing its implementation of the Vienna

Convention. That agency. of course, is the Department ot

State. Courts have been especially reluctant to defer to

executive agency interpretations of law wher those

interpretations are embodied not in a formal rule or

regulation, but instead in a litigation position embodied in a

brief. See Smiley v. Citibank (South Dakota), NA. 817 US.

735, 741 (1996) (~OF course we deny deference to agency

litigating positions that are wholly unsupported by regu-

lations. rulings, or administrative practice ~) (quoting Bowen

30

v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988)).

That hesitance is especially appropriate here. where the

DOJ’s current position on whether the President has

constitutional authority to issue a mandatory order to the state

courts directly contradicts the position that it took in 1998 in

the Breard case. Briet of United States in Breard v. Greene,

at 51.

CONCLUSION

The Court should affirm the decision of the Texas Court of

Criminal Appeals.

Respecttully submitred,

EDWARD C. DAWSON ERNEST A. YOUNG

RICHARD B. FARRER Counsel of Record

YETIER & WARDEN, LLP 727 East Dean Keeton Street

221 West Sixth Street, Suite 750 Austin, Texas 78705

Austin, Texas 78701 (S12) 232-5561

(512) 533-0150

Attorneys for Constitutional and Internatione! Lay

Scholars In Support of Respondent State of i exas