Amicus Curiae Brief — Medellin v. Texas

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No. 06-984

jniesisieani = OFFICE OF THE CLEAK

3n The

Supreme Court of the Anited States

*

JOSE ERNESTO MEDELLIN,

Petitioner,

V.

STATE OF TEXAS,

Respondent.

On Writ Of Certiorari To The

Court Of Criminal Appeals Of Texas

SJ

BRIEF AMICUS CURIAE OF FORMER

SENIOR OFFICIALS OF THE DEPARTMENT

OF JUSTICE IN SUPPORT OF RESPONDENT

¢

CHARLES J. COOPER

Counsel of Record

BRIAN STUART KOUKOUTCHOS

COOPER & KIRK, PLLC

1523 New Hampshire Avenue, NW

Washington, D.C. 20036

(202) 220-9600

Counsel for Amici Curiae

August 2007

ed - Or > + re eee

a —

COCKLE LAW BRIEF PRINTING CO (800) 225-6954

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............cc0ccceeceeecsesees 1

INTRODUCTION AND SUMMARY OF ARGUMENT... — 2

TES Oe aE CAE OE RE SE Oe 4

Il. PETITIONER CANNOT ESCAPE THE

I].

CONTROLLING AUTHORITY OF SAN-

i ___ nana TOPE

THE PRESIDENT’S ASSERTION OF POWER

TO PREEMPT STATE PROCEDURAL LAW

IN DEFIANCE OF THE EXPRESS TERMS

OF THE VIENNA CONVENTION VIOLATES

THE SEPARATION OF POWERS ...................

A. The President Has No Treaty-Based

Power To Countermand Treaty Interpre-

tations By This Court And To Preempt

I ED cciinenicitidapatininaenieneieinianininninnniie

B. The President Has No Inherent Foreign-

Relations Power To Override This Court's

Interpretations Of Treaties Nor To Pre-

I Fe ID ceinincticnviniinnitinndireiatinaedinden

C. The President Has No “Independent Au-

thority” To Preempt State Law In The

Course Of Resolving Disputes With For-

ns ee 2 a aeeeniaaanennni

D. The Solicitor General's Remaining Ar-

guments Are Unpersuasive...,...........0..606:

1. The President's assumption of re-

sponsibility for responding to [CJ de-

cisions proves nothing.................:60008

13

a ne, oe ee Ca aie

A eS

1]

TABLE OF CONTENTS -— Continued

Page

2. The President's possession of other re-

sponsibilities “related” to the authority

he claims here proves nothing.............. 25

3. The President’s role in litigation that

implicates foreign policy proves noth-

4. The President’s qualifications to act

in foreign affairs cannot override fed-

eralism or the Constitution’s separa-

RR ID iv ccetstcstntcisiinneciecensssncnadannie 28

TET incccrtihinnnisiisesumuininrineeinmsnnnadnentin 30

il

TABLE OF AUTHORITIES

Page

CASES

American Ins. Ass'n v. Garamendi, 539 U.S. 396

SII aisced.ceiaididesinainasleaietiataen aneainanienaeecatmaliatamaaaaines 3, 15, 16, 18, 19

Avena and Other Mexican Nationals (Mex. v. U.S.),

Se Cans. We) IIIS Ci cnicdssaciecievescotitnnnetnsuiarsnninenattasnnenianta passim

Barclays Bank v. Franchise Tax Bd., 512 U.S. 328

ERIE Oana ae ae ee a ea T a eee oan 20, 21

Bartkus v. Illinois, 359 U.S. 121 (1959).......ccccecceeeeeesceeeess 17

Bowsher v. Synar, 478 U.S. 714 (1986).............ccesceeceeeeeees 29

Breard v. Greene, 523 U.S. 371 (1998)...........c.cccee eee passim

Brecht v. Abrahamson, 507 U.S. 619 (1993)... cece 16

Brown v. Allen, 344 U.S. 443 (1953) .................ccsccescocssceeees 6

Case Concerning Rights of Nationals of the United

States tn Morocco (Fr. v. U.S.), 1952 1.C.J. 176

Fe SD cn coiccassdinnnimnnnsianvenmnaledniaia Madman 25

Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095

I I aascieeadiannnapummmianiasaaiais 27

Clinton v. New York, 524 U.S. 417 (1998)... ee, 7, 30

Dames & Moore v. Regan, 453 U.S. 654 (1981)......... passim

Hilton v. Guyot, 159 U.S. 123 (1 RQ) .............cccccescesseesceees 21

INS v. CRa@GRA, 462 UB. DID ( TBBS).. cccocsecccessesevccccccveceses: 29

LaGrand Case (F-R.G. v. U.S.), 2001 LC.J. 466 (June

0, ER eee a aon a eae nave NT SS en A REO TE Te ERE 24

Marbury vc. Madison, 5 U.S. (1 Cranch) 137 (1803).............30

Sanchez-Llamas v. Oregon, 1268. Ct. 2669 (2006) .... passim

a Renn EE

OO TS A TT RS RS SE SP:

1\

TABLE OF AUTHORITIES — Continued

Page

Sanitary District v. United States, 266 U.S. 405

€ FED cscressnenenceduessccuvesmunsdnionseintiseddasaenmuecentesiaanmmamamaaaaaa 28

Societe Nationale Industrielle Aerospatiale v.

United States Dist. Court, 482 U.S. 522 (1987)............ 21

United States v. Belmont, 301 U.S. 324 (1937)............ 15, 20

United States v. Brown, 381 U.S. 487 (1965) .......... 29

United States v. Morrison, 529 U.S. 598 (2000) ............... 17

United States v. Pink, 315 U.S. 203 (1942) ....... 15, 20

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

GE ( Da vcvscuvnservscnissniessionneteieliamnnnnaae 27

Wildenhus’s Case, 120 U.S. 1 (1887)......c.ccccsssocesceeesessesees 17

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)... 17

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

OEE © BD viccccestannqntpensnisisnnienmnstiiaiiindeimmnnainnal passim

OTHER

£7, CNSR. Get, Thy 8 Bicvicrsevesrenncsindibeaenee 14

af Ge Be SD en 10

THE FEDERALIST NO. 70 (Alexander Hamilton)................ 29

BD. GR. BRD BEA. « nsincuvsssnvessiesncssnsesncentensebsinaneseaaaanee l

INTEREST OF AMICI CURIAE

Amicus the Honorable Edwin Meese III served as the

75th Attorney General of the United States and is now the

Ronald Reagan Distinguished Fellow in Public Policy and

Chairman of the Center for Legal and Judicial Studies at

the Heritage Foundation. Amicus the Honorable Dick

Thornburgh served as the 76th Attorney General of the

United States and as Under-Secretary-General of the

United Nations. He had previously served two terms as

Governor of the Commonwealth of Pennsylvania and

currently serves as counsel to Kirkpatrick & Lockhart

Preston Gates Ellis LLP. Amicus the Honorable Charles

Fried is former Solicitor General of the United States and

former Associate Justice of the Supreme Judicial Court of

the Commonwealth of Massachusetts. He is now Benefi-

cial Professor of Law at Harvard Law School. Amicus the

Honorable Timothy Flanigan is former Assistant Attorney

General for the Office of Legal Counsel and former Deputy

White House Counsel. Amicus the Honorable Douglas W.

Kmiec is former Assistant Attorney General for the Office

Legal Counsel and former Dean, The Catholic Univer-

y of America School of Law. He is now Chair and Profes-

sor of Constitutional Law at Pepperdine University. Amicus

the Honorable Charles J. Cooper is former Assistant

Attorney General for the Office of Legal Counsel and is

also counsel of record fur umici here’ Although amici are

strong advocates for a robust vision of presidential power

in foreign affairs, amici do not believe that the positions

taken in this case by Petitioner and amicus United States

Counsel for aenict authored this bnef No person other than counsel

or amict made a monetary contnbution w its preparation or submission

S Ct Rule 37 6 Al! partes have consented to the filing of this brief

cme aE

SLE SS DS a ESS. Sen SASS OS

2

can be reconciled with the separation of powers and the

principles of federalism embodied in the Constitution.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case is controlled by Sanchez-Llamas v. Oregon,

126 S. Ct. 2669 (2006), and Breard v. Greene, 523 U.S. 371

(1998) (per curtam), in which the Court held that claims to

consular access under Article 36 of the Vienna Convention

are subject to the same procedural default rules applicable to

other federal] statutory and constitutional rights guaranteed

to a criminal defendant. Petitioner Medellin asserts nghts of

consular access under Article 36 as interpreted by the

International Court of Justice (“ICJ”) in Avena and Other

Mexican Nationals (Mex. v. U.S.), 2004 LC.J. 1 (Mar. 31) -

the very decision that this Court rejected in Sanchez-Llamas.

Medellin insists that there is no conflict between Avena

and Sanchez-Llamas because he was one of the 51 particular

Mexican nationals whose cases were before the ICJ in Avena.

Medellin thus invokes Avena not as an authoritative precedent

that this Court is bound to follow in applying Article 36, but

rather as res judicata — a final judgment by the ICJ in Medel-

lin'’s own case that, supposedly, binds this Court on a matter of

United States law. With respect to Medellin, we are told, the

{CJ has already determined his nights under Article 36, and in

that respect this Court is subordinate to the ICJ and not the

“one supreme Court” described in Article II] of the Constitution.

The Solicitor General argues that the ICJ’s Avena

decision misreads Article 36, but nonetheless asserts that

the President, under his Article II foreign-relations power

and the relevant treaties, has authority to preempt state

law and to order the Texas Court of Criminal Appeals to

ignore this Court's construction of Article 36 in Breard and

Sanchez-Llamas, and instead to give effect to the Avena

decision that this Court repudiated. Application of the

analytical framework set forth in Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“The Stee! Seizure

Case”), makes clear that the President has no such author-

itv, for the President's power is at low ebb when he acts in

conflict with a congressionally enacted law. Here, the

Article | branch, in the form of the Senate, has ratified a

treaty and thereby enacted the supreme law of the land for

the President to enforce: the Vienna Convention and its

requirement that consular rights be implemented “in

conformity with” the law of the forum state. And this

Court, the head of the Article III branch, has given that

law an authoritative construction contrary to the Presi-

dent's reading. Thus, the President here acts in contraven-

tion of the very treaty he invokes.

The Solicitor General’s contention that the President

may preempt Texas laws of criminal procedure by exercise

of the foreign-affairs power inherent in Article II is like-

wise unavailing. Whatever the extent of that power, it does

not extend to overriding this Court’s interpretation of a

treaty, nor to unilateral presidential preemption of state

law,

The Solicitor General also invokes the President’s

power to resolve international reparations claims involv-

ing foreign sovereigns. See American Ins. Ass'n v. Gara-

mendi, 539 U.S. 396 (20U3); Dunics & Moore v. Regan, 453

U.S. 654 (1981). But there is nothing remotely like that

here. This 1s not a case of an individual claimant in Texas

reaching overseas in an attempt to apply Texas law to a

foreign government or foreign corporation for alleged torts

that occurred in a foreign land. This case involves a Texas

criminal court applving Texas criminal procedures to

Texas judicial proceedings governing a Texas prosecution

csceeeeeeeeremeeenteeeeteeeseeeeeee ep

AS a a SES SS TST SD

4

of a foreign national who committed heinous criminal acts

in Texas against Texas residents. Thus, here Texas acts

within the irreducible core of State sovereignty: the

criminal law. Nothing in this Court’s precedents cedes to

the President power to displace state law — especially not

state laws that are expressly preserved by a treaty ratified

by the United States Senate, in which each sovereign

State is assured equal and perpetual representation.

The Solicitor General’s remaining arguments amount

to little more than an appeal to “efficiency” of the sort that

this Court has consistently rejected. Neither federalism

nor the separation of powers was instituted with the idea

that it would promote governmental efficiency. Those

principles are instead bulwarks against tyranny.

ARGUMENT

1. PETITIONER CANNOT ESCAPE THE CON.-

TROLLING AUTHORITY OF SANCHEZ-LLAMAS.

Petitioner Medellin asserts rights of consular access

under Article 36 of the Vienna Convention, contending

that when the United States ratified the Convention’s

Optional Protocol, it agreed to submit disputes arising out

of the Convention to the ICJ, and that when it ratified the

United Nations Charter (“U.N. Charter”), the United

States agreed to comply with any ICJ decision to which it

was a party. Pet. Br. 19-20. In Avena, the ICJ interpreted

Article 36 to preempt state rules of criminal procedure

under which criminal defendants such as Medellin forfeit

rights if they fail to assert them during trial and appeal.

lhe brief for Petitioner Medellin will be cited as “Pet. Br” The

prief of amicus curtae United States wi!! be cited “U.S. Br”

Pet. Br. 8-9. Mexico brought the Avena action to obtain

enforcement of Article 36 with respect to 51 Mexican

nationals who had been sentenced to death by state courts,

including Medellin himself, who confessed to raping and

then murdering two teenage girls in Texas. Petitioner

contends that the Texas court below, and this Court, too,

are bound by Avena because the treaties listed above are

the supreme federal law of the land under the Supremacy

Clause of Article VI of the Constitution. Pet. Br. 21, 23-28.

Petitioner's argument runs headlong into Sanchez-

Llamas v. Oregon, 126 S. Ct. 2669 (2006), where this Court

expressly repudiated Avena’s interpretation of those treaty

requirements. The Court ruled that the question whether

Article 36 requires preemption of state procedural default

rules “is controlled by our decision in Breard v. Greene,

523 U.S. 371 (1998) (per curiam).” 126 S. Ct. at 2682. The

background rule of international law —- which neither

Petitioner nor the United States disputes — is that, “‘ab-

sent a clear and express statement to the contrary, the

procedural rules of the forum State govern the implemen-

tation of the treaty in that State.’” Jd. at 2682-83 (quoting

Breard, 523 U.S. at 375). Neither Petitioner nor the

United States has identified any such express statement

in any of the treaties here. Indeed, Article 36 expressly

provides precisely the opposite: the rights it confers “‘shall

be exercised in contormity with the laws and regulations of

the receiving State.” Sanchez-Liamas, 126 S. Ct. at 2685

‘quoting the treaty). Thus, by the explicit terms of the

treaty that Petitioner invokes, state procedural default

rules continue to govern. See id. at 2680, 2685; Breard,

523 U.S. at 375.

Medellin recognizes that Sanchez-Llamas, decided

fust a vear ago, is a profound embarrassment for his

-

act ee rp

ls lS

6

argument. Pet. Br. 21-22. Petitioner therefore contends

that this Court’s rejection of Avena’s reading of the treaties

is irrelevant because, “|u|nlike the petitioners in Sanchez-

Liamas, Medellin is a national of Mexico whose case was

specifically adjudicated in Avena, and the United States is

indisputably bound ‘in respect of [his] particular case.’”

Pet. Br. 22. Thus, according to Petitioner, the “issue is not

the effect of the ICJ’s interpretation as a precedent, but the

effect of the ICJ’s decision as a judgment.” Id. (original

emphasis). Despite the fact that this Court rejected Avena

in Sanchez-Llamas, Avena supposedly governs Medellin’s

case because Avena is “a valid final judgment that is

binding on the United States by treaty.” Jd. Petitioner

contends, therefore, that his treaty rights have been

authoritatively adjudicated by the ICJ, that they are res

judicata, and that the final judgment of the ICJ is not

subject to question in this Court. Jd. Even though this

Court rejected Avena’s reasoning and conclusion, it must

nevertheless enforce the Avena judgment in favor of

Medellin, because the ICJ’s decision on this question of

United States federal law is binding on this Court.

Petitioner’s argument works only if the ICJ is a

tribunal superior to this Court on matters of federal law,

and we know that is not so. As Justice Jackson memorably

remarked in an earlier habeas corpus case, “|t)here is no

doubt that if there were a super-Supreme Court, a sub-

stantial portion of our reversals of state courts would also

be reversed. We are not final because we are infallible, but

we are infallible only because we are final.” Brown v.

i (en, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

aly a “super-Supreme Court” could reverse this Court’s

authoritative construction of Article 36 in Sanchez-Liamas

and Breard, and neither the ICJ nor any other tribunal

qualifies for that role. In fact, the Court appears to have

7

anticipated ‘and dismissed) Medellin’s argument in

Sanchez-Llamas:

Under our Constitution, “the judicial Power of

the United States” is “vested in one supreme

Court”... Art. II], § 1. That “judicial Power...

extends to... Treaties.” ... If treaties are to be

given effect as federal law under our legal sys-

tem, determining their meaning as a matter of

federal law “is emphatically the province and

duty of the judicial department,” headed by the

“one supreme Court” established by the Consti-

tution.

126 S. Ct. at 2684 (quoting Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 ‘1803)). “It is against this background

that the United States ratified, and the Senate gave its

advice and consent to, the various agreements that govern

referral of Vienna Convention disputes to the ICJ.” Jd. And

“{njothing in the structure or purpose of the ICJ suggests

that its interpretations were intended to be conclusive on

our courts.” /d.

The Senate and the President cannot, by treaty,

rewrite Article III to subordinate this Court to an interna-

tional tribunal convened by the U.N. See Clinton v. New

York, 524 U.S. 417, 445-46 (1998) (“Congress cannot alter

the procedures set out in Art. 1, § 7 without amending the

Constitution.”). But the Court need not address this

constitutional issue because it is clear that the treaties

Petitioner invokes did not intend to subordinate this Court

to the ICJ. As this Court observed in Sanchez-Liamas, the

treaties neither envision nor provide judicial remedies for

violation of consular rights. See 126 S. Ct. at 2680. Neither

party here — not Petitioner nor the State of Texas — was a

party in Avena. Indeed, the ICJ only “arbitrate|s| particular

disputes between national governments,” and enforcement

is exclusively by diplomatic means such as “referral to

the Security Counsel.” Jd. at 2684-85. Thus the treaty

contemplates exclusively and “quintessentially interna-

tional remedies.” Jd. at 2685 (original emphasis).

Petitioner asks this Court to order the Court of

Criminal Appeals of Texas “to honor the undisputed

international obligation of the United States, under

treaties duly ratified by the President with the advice and

consent of the Senate, to give effect to the Avena judgment

in the cases that the judgment addressed.” Pet. Br. i. But

this Court has already held that those treaties impose no

such obligation: “procedural rules of domestic law gener-

ally govern the implementation of an international treaty,”

and “Article 36 makes ciear that the rights it provides

‘shall be exercised in conformity with the laws’” of the

forum State. Sanchez-Liamas, 126 S. Ct. at 2685 (empha-

sis added). “|T|his means that the [Texas] rule of proce-

dural default —- which applies even to claimed violations of

our Constitution — applies also to the Vienna Convention

claims.” /d.

Although the ICJ’s “decisions” have “‘no binding force

except between the parties and in respect of that particu-

lar case,” id. at 2684 ‘quoting the treaty; emphasis

deleted), the same is not true of this Court’s decisions. In

Sanchez-Llamas, the Court did not announce a rule for

that case alone.

Il. THE PRESIDENT’S ASSERTION OF POWER

TO PREEMPT STATE PROCEDURAL LAW IN

DEFIANCE OF THE EXPRESS TERMS OF

THE VIENNA CONVENTION VIOLATES THE

SEPARATION OF POWERS.

The argument of amicus curiae United States likewise

seeks to evade Sanchez-Llamas by focusing just on the

9

“cases filed by the 51 Mexican nationals addressed in that

decision.” U.S. Br. 3. The Solicitor General agrees that

Avena misinterpreted the obligations of the United States

under the treaty (id. at 27-29), but states that the Presi-

dent has nevertheless chosen, for diplomatic reasons, to

comply with Avena “by having State courts give effect to

the decision in accordance with general principles of

comity.” Jd. at 3. The President’s order directing State

courts to ignore controlling decisions of this Court is an

exercise, according to the Solicitor General, of the Presi-

dent’s foreign-affairs power to decide how the nation will

comply with treaty obligations. U.S. Br. 8-9, 10-11. The

Solicitor General offers several different theories for the

President’s supposed judicial authority, but none of them

has merit.

A. The President Has No Treaty-Based

Power To Countermand freaty Interpre-

tations By This Court And To Preempt

State Law.

The Solicitor General first asserts presidential power

lo preempt state law pursuant to treaty, and observes that,

although this Court “hes not specifically addressed how to

assess presidential action under the authority of a treaty

... it seems clear that when the President acts pursuant

to a duly ratified treaty ... his authority is at its zemith.”

U.S. Br. 10 ‘citing Youngstown Sheet & Tube v. Sawyer,

343 U.S. 579, 637 (1952) (Jackson, J., concurring). It 1s

equally clear that presidential power is at its nadir

“Iwlhen the President takes measures incompatible with

the expressed or implied will of Congress.” The Steel

Seizure Case, 343 U.S. at 637 (Jackson, J., concurring). As

Justice Black wrote for the Court in that seminal case,

10

“It}he President's power, if any, to issue the order must

stem either from an act of Congress or from the Constitu-

tion itself.” Jd. at 585. Here, as in Steel Seizure, “[t]here is

no statute that expressly authorizes the President” to

overrule treaty interpretations by this Court and to

preempt state law, “[njor is there any act of Congress ...

from which such a power can fairly be implied.” Jd. Those

statements are equally true if applied to treaties rather

J

than statutes.

The Solicitor General cites two sources of the Presi-

dent’s supposed power to preempt state law and compel

state courts to ignore controlling authority of this Court:

(1) the Vienna Convention’s Optional Protocol, in which

the United States agreed to submit disputes over the

interpretation of Article 36 to the ICJ, and (2) the U.N.

Charter, in which the United States agreed to comply with

decisions of the ICJ. U.S. Br. 8. But those provisions

describe, at most, the procedural apparatus for diplomatic

enforcement of obligations under the Vienna Convention.

They do not impose any substantive treaty obligation, let

alone any treaty obligation that purports to preempt state

law or to deputize the President as a super-Supreme

Court.’

It is quite telling that the Solicitor ‘;eneral fails to

address those portions of the Vienna Convention that do

impose substantive obligations on the United States. The

It goes without saying that a treaty properly ratified by the

Senate hus the same status as an Act of Congress under Article VI of

the Censtituuion

* As Sanchez-Llamas held. these treaty provisions do not make ICJ

decisions “conclusive on our courts” 126 S Ct at 2684. Rather, the

treaties “contemplate|] quintessentially internarional remedies,” such

as referral to the U.N. Secunty Council. Jd. at 2685 ‘original emphasis)

1]

Court held in Sanchez-Llamas that the Vienna Convention

does not set aside the procedural rules that govern imple-

mentation of the treaty in the forum state, absent an

explicit statement to the contrary. 126 S. Ct. at 2682-83.

Instead, the Convention expressly requires that Article 36

rights be enforced only “‘in conformity with the laws’” of

the receiving state. Jd. at 2680. Indeed, the Court stressed

this point repeatedly. See id. at 2678, 2685, 2686. The

Court therefore held that the Vienna Convention does not

preempt state procedural default rules, id. at 2687, and

accordingly provides no basis for the Court to direct

preemption and thereby expand United States obligations

under the treaty, id. at 2679, 2687.

But the Solicitor General defends presidential power

to preempt state procedural default rujes in compliance

with Avena, despite this Court’s decisions rejecting Avena

and holding that the Vienna Convention forbids displace-

ment of state procedural rules. U.S. Br. 8-9. The President

may be free, as a matter of international] diplomacy, to

defer to the ICJ’s misreading of Article 36. But the Presi-

dent’s supposed power pursuant to the Vienna Convention

to preempt state law is limited by the actual terms that

the Senate ratified: the “United States ratified the Con-

vention with the expectation that it would be interpreted

according to its terms.” Sanchez-Llamas,-126 S.Ct. at

2679. And the terms that the United States ratified

As the Solicitor General himself argued when Medellin was

before this Court the first ume, the Vienna Convention was ratified on

the express understanding that it did not “change or affect present U.S

laws or practice” Brief Amicus Curiae of the United States in No 04-

S428. Medellin v Dretke, at 21-22 (“The Senate Foreign Relations

Committee cted as a factor in its endorsement of the treaty that

“tthe Convention dues not change or affect present U.S laws or

practice’ ”- quoung S. Exee Rep Ne 9, 9}st Cong at 211969")

12

expressly mandate enforcement of Article 36 “:n confor-

mity with” state procedural rules. Jd. at 2685 (emphasis

added).

Therefore, there is no authority for the President to

preempt state law under the Vienna Convention because

displacement of state law is “not only unauthorized by any

itreaty!” — it is in fact proscribed by treaty. Steel Seizure,

343 U.S. at 586. See also id. at 602 (Frankfurter, J.,

concurring) (“It cannot be contended that the President

would have had power to issue this order had Congress

explicitly negated such authority in formal legislation.

Congress has expressed its will to withhold this power

from the President as though it had said so in so many

words.”); id. at 635-36 n.2 (Jackson, J., concurring) (This

Court has “intimated that the President might act in

external affairs without congressional authority, but not

that he might act contrary to an Act of Congress.”).

Although the Solicitor General relies on Steel Seizure,

that case is his undoing, for the Vienna Convention, as

authoritatively construed in Sanchez-Llamas and Breard,

limits the means and manner by which the President may

implement United States obligations under that treaty. As

Justice Frankfurther explained in Stee! Seizure, “lilt 1s

quite impossible ... when Congress did specifically ad-

dress itself to a problem, ... to find secreted in the inter-

stices of legislation the very grant of power which

Congress consciously withheld.” 343 U.S. at 609 (concur-

ring opinion).

13

B. The President Has No Inherent Foreign-

Relations Power To Override This Court’s

Interpretations Of Treaties Nor To Pre-

empt State Law.

All parties and amici agree on this:

When the President takes measures incompati-

ble with the express or implied will of Congress,

his power ts at its lowest ebb, for then he can rely

only upon his own constitutional powers minus

any constitutional powers of Congress over the

matter. Courts can sustain exclusive presidential

control in such a case only by disabling the Con-

gress from acting upon the subject. Presidential

claim to a power at once so conclusive and pre-

clusive must be scrutinized with caution, for

what is at stake is the equilibrium established by

our constitutional system.

Steel Seizure, 343 U.S. at 637-38 (Jackson, J., concurring).

See Pet. Br. 35; U.S. Br. 9-10. Here, as in Steel Seizure, “it

is not claimed that express constitutional language grants”

the President power to reverse this Court’s judicial con-

struction of a treaty and to preempt state law; “'t|he

contention is that presidential power should be implied

from the aggregate of his powers under the Constitution.”

343 U.S. at 587. To sustain this claim, the Court would

have to hold that power to preempt state law is - as

Justice Jacksuni put it - “within |the President's] domain

and beyond control by Congress.” /d. at 640 (concurring

opinion).

As explained above. however, the Limit on presidential

power to preempt state procedural rules is imposed by the

express terms of the Vienna Convention - the Senate

ratified a treaty that mandates implementation of Article

36 “in conformity with” state law. To hold that the Senate

14

cannot limit its consent to a treaty by ratifying its express

terms, and that the President is free to ignore the treaty

terms ratified by the Senate because foreign relations is

“within his domain and beyond control by Congress,” id., is

to displace the Senate’s explicit constitutional authority to

give or withhold consent to a treaty. See Art. II, § 2.

Indeed, the President’s power in this case is at a far

lower ebb than in Stee! Seizure. Here, as there, the Article

] branch ‘the Senate) has spoken in a treaty to the issue

before the Court (here, the limits of federal preemption of

forum state procedural law). But unlike Steel Seizure, here

the Article III branch has already definitively interpreted

that treaty with respect to that precise issue of compliance

with state rules of procedural default. See Breard; San-

chez-Llamas. There is no presidential power to preempt

state law in defiance of the terms of a treaty as authorita-

tively interpreted by this Court. Such a power cannot

possibly be “inherent” in Article Il, because any such

reading of Article II is precluded by the express terms of

Article II], which vests “the judicial Power of the United

States ... in one supreme Court.” “If treaties are to be

given effect as federal law under our legal system, deter-

mining their meaning as a matter of federal law ‘is em-

phatically the province and duty of the judicial

department,’ headed by the ‘one supreme Court.’” San-

chez-Llamas, 1268S. Ct. at 2684.

C. The President Has No “Independent Au-

thority” To Preempt State Law In The

Course Of Resolving Disputes With For-

eign Nations.

The Solicitor General argues that the President has

“long established authority to resolve disputes with foreign

15

nations ... involving international! claims.” U.S. Br. 12-15.

See also Pet. Br. 35-37 (making a similar argument). But

all of the authorities adduced for this proposition involved

international reparations claims against foreign sover-

eigns or other foreign entities. See American Ins. Ass'n v.

Garamendi, 539 U.S. 396, 405 (2003); Dames & Moore v.

Regan, 453 U.S. 654, 679 (1981); United States v. Pink,

315 U.S. 203, 227 (1942); United States v. Belmont, 301

U.S. 324, 326 (1937). There is nothing remotely like that

here. This is not a case of an individua! claimant in Texas

reaching overseas and trying to apply Texas law to a

foreign government or foreign corporation for alleged torts

that took place overseas. This case involves a Texas

criminal court applying Texas criminal procedures to

Texas judicial proceedings governing a Texas prosecution

of a foreign national who committed heinous criminal acts

in Texas against Texas residents.

The Solicitor General's own principal authority,

American Ins. Ass'n v. Garamendi, see U.S. Br. 13-15, 23,

25, distinguishes his cases and defeats his argument. The

Court there identified the strength of the state’s interest

as a crucial factor in analyzing whether the President

could preempt the state’s law. See 539 U.S. at 419-20.

Garamendi involved a Califorma insurance-company

disclosure statute. The Court acknowledged the impor-

tance of the state’s general interest in “consumer protec-

tion.” but the disclosure law was not “a_ geterally

applicable” consumer-protection law, but was instead a

law that “singleld) out only policies issued by European

insurance companies, in Europe, to European residents, at

least 55 vears ago.” Jd. at 425-26. The challenged law

ordered the disclosure by the European companies of

infurmation about the policies they had issued to Euro-

pean policyholders who died in the Holocaust. Jd. In that

16

historical, overseas scenario, the Court found California's

highly attenuated regulatory interest to be quite “weak.”

Id. at 425.

In contrast, the Texas procedural default rule at issue

here applies to all criminal defendants in Texas, not just

foreign nationals, and governs all] assertions of rights by

defendants - not just consular rights, but also state and

federal constituticnal rights. And the Texas rule 1s being

applied not to events that happened on the other side of

the world half a century ago, but to a Texas cmminal

prosecution involving brutal crimes of violence - gang rape

and murder — recently committed in Texas against Texas

residents - a pair of teenage girls. With all of these dis-

tinctions, it is hard to imagine how this case could be less

like the Solicitor General’s cases involving international

claims reparations.

In Garamendi, this Court ruled that a state's interest

in applving forum law to foreign litigants and foreign

events is to be considered under “general standards for

evaluating a State’s claim to apply its forum law to a

particular controversy or transaction.” 539 U.S. at 426.

What could possibly be more appropriate and more famil-

iar than for a state to apply its own criminal laws to

crimes committed within its borders by its own residents

against its own citizens? It is beyond cavil that the

“States possess primary authority for defining and enforc-

ing the criminal law.” Brecht v. Abrahamson, 507 US.

619, 635 1993) ‘citation omitted). With respect to the

The Garamendi Court indicated that “|wjhere a State has

acted within its ‘traditional competence,’ but in a way that affects

foreign relations, it might make good sense to require a conflict of a

clarity or substantiahty that would vary with the strength for the

traditional importance of the state concern asserted." /d. at419n ll

17

federal-state balance struck by the Constitution, there is

“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 vindica-

tion of its victims.” United States v. Morrison, 529 US.

598, 618 (2000). See Bartkus v. Illinois, 359 U.S. 121, 137

(1959) (denouncing an invasion of State criminal authority

that “would be a shocking and untoward deprivation of the

historic right and obligation of the States to maintain

peace and order within their confines”).

Unsurprisingly, neither Petitioner nor amicus United

States has identified any history of presidential orders, or

congressional acquiescence therein, invoking the foreign-

relations power to preempt application of state procedural

law by state criminal courts to crimes committed within

that state against the state’s people. Petitioner offers two

cases that, he says, define a “long and uninterrupted line

of cases” in which this Court has applied treaties, “even if

those treaties conflict with state law in areas of traditional

state concern.” Pet. Br. 28. But Petitioner's authorities are

irrelevant to this case, where the President purports to

preempt state law not pursuant to a treaty, but despite this

Court's ruling that the relevant treaty expressly preserves,

rather than displaces, state law. See Breard; Sanchez-

Liamas.

Petitioner cites Worcester v. Georg:a, 31 U.S. 16 Pet. 515 (18382),

and Wildenhus’s Case. 120 U.S. 1/1887). But Worcester struck down an

application of Georgia criminal law not because it was in conflict with a

presidential order. but because it was “repugnant to the Constitution,

iaws and treaties of the United States.” $1 U.S. at 561. That is not this

case Petitioner's reliance on Wi/denhus is even more baffling the Court

refused a writ of habeas corpus sought by the Belman consul because

the murder that Wildenhus was accused of took place in a New Jersey

port and threatened pubhe order. and was therefore. the Court held

Continued on following page

15

This case is further distinguishable from Garamendi

and its predecessors in other respects. In Garamendi, the

federal government made an extensive showing of the

disruption of United States foreign policy that would

ensue if California's law, specially enacted to apply to a

single class of foreign companies and foreign insurance

policies, were applied to regulate overseas transactions by

overseas parties 55 vears ago. Neither the Solicitor Gen-

eral nor the Petitioner makes any such demonstration

here, nor could they. At issue is a general law of criminal

procedure applied to all habeas corpus petitions in the

Texas courts. There are no extraterritorial] parties; there is

no extraterritorial operation of Texas law. Moreover, this

Court has already held that the application of such proce-

dural default rules by state courts is no disrespect to the

Vienna Convention, because the relief that Petitioner and

the Solicitor General demand - suspension of Texas’

procedural default rule — would be “extraordinary” relief

“that is accorded to almost no other right, including many

of our most fundamental constitutional protections.”

Sanchez-Liamas, 126 S. Ct. at 2687-88. Therefore, “|iJt is

no slight to the Convention to deny petitioners’ claims

under the same principles we would apply to an Act of

Congress. or to the Constitution itself.” Jd. at 2688.

properly within local jurisdiction pursuant to the treaty in question

120 U.S. at 17-15

Petitioner also cites several cases that he characterizes as involving

federal “treaties” that preempt state business regulation, property law,

or tort law See Pet Br 28 & 14 Insofar as they affirm preempton of

tocal law by a treats, the cases have no bearing on this case, where the

President's assertion of power to preempt state law contrarenes the

treaty in auesuon. Furthermore, like Garamend:. these cases distin-

suish themselves from the vital state interest in its own crmuinal law

that is etuissue here

19

Indeed, it is hard to imagine how the action of the

Texas court below could possibly give any discernible

further affront to the Vienna Convention and the ICd,

given that: (1) this Court has already rejected the ICJ’s

construction of the treaty, (2) the President himself has

denounced the Avena decision as incorrect, (3) the Presi-

dent has repudiated Avena as non-binding on United

States courts, and (4) the President has announced that

the United States no longer recognizes the ICJ’s jurisdic-

tion. See id. at 2685.

As the foregoing discussion makes clear, a presidential

order that preempted state law and directed state courts

to disregard decisions of this Court would raise grave

constitutional issues of separation of powers and federal-

ism. However, the Court need not venture down that path,

because it is doubtful that the President in fact issued any

such edict. The Solicitor General does not characterize the

President’s action as an “executive agreement” with

foreign nations or even as a unilateral executive “order.”

The strongest term that the Solicitor General, the Peti-

tioner, or even the President himself can offer is “determi-

nation” (U.S. Br. 3; Pet. Br. 10):

“] have determined ... that the United States

will discharge its international obligations under

the decision of the |ICJ} in |Avena}) by having

State courts give effect to the decision in accor-

dance with general principles of comity in cases

filed by the 51 Mexican nationals addressed in

that decision.”

Pet. Br. 10 ‘quoting the President's statement.

To begin with, this “determination” is a unilateral act,

not a solemn international “executive agreement” of the

sort to which the Court emphasized deference in Gara-

mendi and its ilk. See Garamendi, 539 U.S. at 406 n.2,

20

407, 408 & n.3, 413, 421: Dames & Moore, 453 U.S. at 665,

679, 682-83: Pink, 315 U.S. at 223, 230-31; Belmont, 301

U.S. at 326, 330-31.

Second, this “determination” is merely an internal

memorandum within the executive branch. The difference

between “Executive Branch actions,” “amicus filings,”

“pronouncements,” “letters,” “decisions,” and sundry other

“statements” of executive policy on the one hand, and

“legally binding executive agreements” on the other, is

that the latter, but not the former, are meant to have the

force of law. Barclays Bank v. Franchise Tax Bd., 512 U.S.

at 328-29 & n.30 (1994). Even if the form of a presidential

action is not necessarily dispositive, it is undeniable that

the President's “determination” here does not display any

of the indicia that usually accompany an executive order

that is intended to have the force of law. And before the

Court decides serious constitutional issues raised by an

executive action, it should first ascertain whether the

President's action was truly meant to be law. “Executive

Branch communications that express federal policy but

lack the force of law cannot render unconstitutional |a

State’s| otherwise valid” rule. Barclays, 512 U.S. at 330.

Third, although the President's “determination” does

address Avena, it does not say that Texas procedural

default rules are preempted — nor does it even imply that.

Only the Solicitor General's amicus brief asserts preemp-

tion, and amicus briefs that urge a particular result are

not a sufficient basis for a court to infer an executive order

that is meant to bind. /d. at 329-30. The President's

“determination” itself speaks only of “having State courts

give effect to the decision in accordance with general

principles of comity” — and “comity” is the hedge. Pet. Br.

10 ‘emphasis added).

Comity is “the courtesy of nations.” Societe Nationale

Industrielle Aerospatiale v. United States Dist. Court, 482

U.S, 522, 543 n.27 (1987) (citations omitted). It is a policy

of courtesy and cooperation, rather than “a matter of

absolute obligation.” Hilton v. Guyot, 159 U.S. 113, 163-64

'1895). The application of foreign law as a matter of

“se

“*comity is, and ever must be, uncertain,” and “‘no nation

will suffer the laws of another to interfere with her own.’”

Id. at 164 (quoting JusTICeE Story, Story’s CONFLICT OF

LAWS § 28) (internal citation omitted). Therefore, the

President’s explicit qualification of the state courts’ con-

sideration of Avena as deriving from “general principles of

comity” means that those courts remain free to reject

Avena if it prejudices the state’s interests or conflicts and

interferes with their own rules — which is precisely what

the court below did. The President's invocation of the “ever

. uncertain” rule of international comity as the basis for

applying Avena renders the President’s determination

“merely precatory.” Barclays Bank, 512 U.S. at 330.

Futhermore, the President’s “comity” hedge should be

considered in hght of his simultaneous decisions: (1) to

reject the Avena decision as incorrect, (2) to repudiate

Avena as non-binding on U.S. courts, and (3) to disavow

the jurisdiction of the ICJ. See Sanchez-Lilamas, 126 §. Ct.

* See also Hilton v. Guyot, i155 U.S. at 165 «*'[I]n the conflict of

laws 1t must often be a matter of doubt which should prevail: and Uiat,

whenever a doubt does exist, the court, which decides, wili prefer the

luws of its own country to that of the stranger’”), id. at 165 ("‘It is the

voluntary act of the nation by which it is offered. and is inadmissible

when contrary to its policy. or prejudicial to its interests. ") ‘citation

omitted), id. at 166 ‘" ‘There is no obligation ... to regard foreign laws

but their application is admitted, oniv from considerations of utility and

the mutual convenience of States — ex comitate, ob reciprocam utill-

tatem.") «quoting WHEATON’S INTERNATIONAL LAW (8th ed. § 79)

i)

bo

at 2685 ‘“|I|t is doubtful that our courts should give

decisive weight to the interpretation of a tribunal whose

jurisdiction in this area is no longer recognized by the

United States.”). Similarly, the President’s “determination”

in 2005 to have state courts apply Avena in accord with

comity must be understood in light of this Court's control-

ling decision in Breard in 1998 that Article 36 does not

displace state-court rules of procedural default. See San-

chez Llamas, 126 S. Ct. at 2682-83. Thus, the President

instructed state courts to consider (under the discretionary

and non-binding policy of comity) a decision (that the

President has denounced) of a foreign tribunal (that the

United States no longer recognizes) enforcing a treaty on

consular rights that had already been authoritatively

interpreted by this Court to conflict with, and to have no

impact on, state-court rules of procedural default. Charac-

terizing the President's Avena “determination” as merely

precatory almost seems to overstate its significance.

D. The Solicitor General’s Remaining Argu-

ments Are Unpersuasive.

Amicus United States offers a grab-bag of additional

arguments to “inform” the Court’s understanding of the

President's preeminent role in foreign affairs. U.S. Br. 11-

12, 16-21. The Solicitor General stops short of contending

that these bases in themselves actually authorize the

President to preempt state law and to order state courts to

defy the decisions of this Court. This is prudent, because

the only illumination that these arguments really cast on

this case reveals just how unprecedented and illegitimate

the President's action truly is.

1. The President’s assumption of respon-

sibility for responding to ICJ decisions

proves nothing.

The Solicitor General contends that, historically, the

President has determined how the United States responds

to decisions of the ICJ. The only authority offered is a cf.

citation to a sentence fragment from Dames & Moore that

supposedly finds relevance in “a ‘history of congressional

acquiescence’ in presidential authority.” U.S. Br. 19 (quot-

ing Dames & Moore, 453 U.S. at 678). What the Court

actually said, in the rest of the sentence that the Solicitor

General omits, is that “[a}t least this is so [1] where there

is no contrary indicatien of legislative intent and [2] when,

as here, there is a history of congressional acquiescence in

conduct of the sort engaged in by the President.” 453 U.S.

at 678 (emphasis added).

Taking the second caveat first, the “conduct” in which

the President has engaged here is preempting a Texas

procedural-default rule and ordering the Texas courts to

ignore a controlling decision by this Court. The Solicitor

General proffers not even one prior historical example of

that, let alone a “history” of congressional acquiescence in

such presidential usurpations of both legislative and

judicial power. Thus Dames & Moore subverts, rather than

supports. the Solicitor General.

The other caveat is that a histury of like executive

actions is relevant “where there is no contrary indication

of legislative intent.” 453 U.S. at 678. That distinguishes

this case as well, for the Legislative Branch ‘the Senate)

clearly indicated, in the language of the Vienna Conven-

tion itself, that the consular rights of Article 36 were to be

implemented “in conformity” with local law, including local

procedural laws. Sanchez-Liamas, 126 S. Ct. at 2685. Thus

24

Dames & Moore, the Solicitor General's sole authority,

defeats his argument.

Furthermore, the four ICJ cases that the Solicitor

General cites as defining a history of congressional acqui-

escence in presidential responses to the ICJ are entirely

beside the point. See U.S. Br. 19-20. In none of those cases

did the President take any action that raised any question

that he was exceeding his lawful authority, whether by

preempting state law or otherwise. Indeed, none of the

cases even involved any domestic orders by the President

at all.”

The LaGrand Case (F-R.G. v. U.S.), 2001 1.C.J. 466

(June 27), is the most revealing of the Solicitor General’s

examples, because it involved Article 36. The ICJ ruled

that the United States had violated the treaty and must

allow reconsideration for defendants denied their consular

rights. The President, as here, determined that the 1CJ’s

judgment was not binding but then, rather than trying to

preempt state law, the President merely sent state gover-

nors, parole boards and clemency boards precatory letters

“encouraging them” to consider the lack of consular notifi-

cation. U.S. Br. 20-21. Thus the case presented no issue of

presidential intrusion on state (or federal judicial) author-

ity because the President did not attempt to intervene in

state “avenues for judicial review” nor presume to preempt

the “domestic law” governing such proceedings. U.S. Br.

20. Would that the President had taken the same course

here.

In the Nicaraguan case. the President ignored the [Cd's decision

and took no domestic action whatever See U.S. Br. 20 In the case

involving Maine. the ICJ resolved a boundary dispute in international

waters and the President's sole response was to tunker with interna-

tional maps. /d

25

Congressional “acquiescence” in executive responses

to ICJ decisions that were devoid of domestic impact

proves, at most, that Congress is not troubled when the

President does not do anything. Contrary to the Solicitor

General's suggestion, this sort of “acquiescence” does not

amount to a congressional license for the President to

ignore a decision of this Court or to preempt state law -

especially not in the face of a Senate-ratified treaty speci-

fving that state law is not to be displaced.”

2. The President’s possession of other re-

-ponsibilities “related” to the author-

ity he claims here proves nothing.

The Solicitor General finds it “lo]f particular impor-

tance” that Congress has authorized the President to

direct functions connected with United States participa-

tion in the UN and the ICJ (U.S. Br. 16), and has given the

President broad authority to obtain the release of citizens

detained abroad. U.S. Br. 17; see aiso Pet. Br. 39-41. The

only case authority offered is, again, another cf. citation to

the same page of the Dames & Moore opinion: “the enact-

ment of legislation closely related to the question of the

President's authority in a particular case which evinces

legislative intent to accord the President broad discretion

The Solicitor General does not even bother to discuss his fourth

ICJ cause or the President’s reaction to it. US. Br. 19 2.4. The Pres-

dent's actions there apparently raised no issue of the Execuuve

exceeding his authority with respect to the Judiciary or the States

because the dispute befure the ICJ involved U.S. consular jurisdicuon

in Morocco and the immunity of U.S. nationals from Moroccan laws and

taxes. See Case Concerning Rights of Nationals of the United States in

Morocco (Fr ve US.) 1952 1LC.J. 176, 212-13 ‘Aug. 27)

26

may be considered to ‘invite’” presidential action in

related areas. 453 U.S. at 678. See U.S. Br. 16.

Once again, the Solicitor General omits the two

caveats contained in the next sentence. See Part II.D.1.,

supra. First, congressional grants of broad presidential

power in related areas “invite” presidential exercises of

discretion except where, as here, there is a contrary indica-

tion of congressional intent — again, the express language

of the treaty mandating enforcement of Article 36 “in

conformity with” local law. The second condition is like-

wise absent: there is no history of congressional acquies-

cence in presidential orders preempting state procedural

laws or ordering state courts to ignore a controlling deci-

sion by this Court. As before, the Solicitor General is

unable to adduce even a single example for the President's

unprecedented usurpation of judicial and state authority.

Furthermore, nothing in the two statutes cited by the

Solicitor General even vaguely hints that the President is

authorized to order state courts to ignore a controlling

decision of this Court or to preempt state criminal law

whenever the President believes that doing so would

advance United States relations with some foreign coun-

try. Indeed, the Solicitor General concedes that these

statutes do not even “authorize the President to imple-

ment an JCJ decision.” U.S. Br. 17.

3. The President's role in litigation that

implicates foreign policy proves noth-

ing.

The Solicitor General contends that the President has

an “established role in litigation implicating foreign-policy

concerns” and that the President has sometimes “exercised

authority to determine whether an international rule of

law should be applied in domestic courts.” U.S. Br. 17; see

also Pet. Br. 29-30, 33. The leading example offered is the

President's former role in deciding whether a foreign

nation received sovereign immunity in American courts.

U.S. Br. 17. But as the United States concedes, that ended

more than 30 years ago. Jd. Furthermore, that ancien

regime, as the Solicitor General's own authority explains,

involved the courts deferring not to the President, but to

the “decisions of the political branches” — that is, to the

Legislative and Executive Branches together. Verlinden

B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983)

(emphasis added).

Indeed, the Executive’s former role in offering his

“suggestions” in court about sovereign immunity came to

an end because their “application proved troublesome” and

the President’s decision-making was “often” tainted by

“diplomatic pressure” and plagued by “political considera-

tions.” Jd. at 487. Congress enacted the Foreign Sovereign

Immunities Act (“FSLA”) “to free” the process from the

“diplomatic pressures” to which the Executive was histori-

cally vulnerable, id. at 488, and to which the Executive,

ironically, clearly succumbed in issuing the very “determi-

nation” at issue here. The question of sovereign immunity

is now decided by the Judicial Branch “on purely legal

grounds” in accord with the Legislative Branch’s “compre-

hensive sct of legal standards.” Jd. See also Chuidian v.

Philippine Nat'l Bank, 912 F.2d 1095, 1100 (Sth Cir. 1990)

‘Wallace, J.) (Congress enacted the FSIJA to render Execu-

tive immunity “suggestions” non-binding because Execu-

tive decision-making was not “the rule of law”). “ar from

establishing a history of congressional acquiescence in

unbridled Executive authority in foreign-policy litigation,

the FSLA was enacted 30 vears ago to limit the discretion

of the Executive in this area.

28

The second example offered by the Petitioner and the

Solicitor General is Sanitary District v. United States, 266

U.S. 405, 425-26 (1925), where this Court held that the

President has inherent power to sue a political subdivision

of a State even if no statute expressly confers such stand-

ing. See U.S. Br. 18-19; Pet. Br. 29, 33. Would that the

President had followed the example set in that case. Here

the President did not file a lawsuit asking this Court to

interpret and apply the relevant treaty as the supreme

law of the land. Instead, the President acted unilaterally,

purporting to overrule a controlling decision of this Court

interpreting that treaty (Breard) and to preempt Texas

rules of criminal] procedure on his own say-so.

Consider the reasoning behind the proposition ad-

vanced by Petitioner and the Solicitor General: because

the President has standing to petition this Court for

interpretation and enforcement of a treaty, the President

can instead simply dictate the result he seeks and thereby

preempt state law. They urge this reasoning on the Court

even here, where the treaty, as ratified by the Senate and

construed by this Court, expressly preserves those state

laws and mandates treaty implementation “in conformity

with” those laws. Thus would Petitioner and the President

invade the legitimate provinces of the Article | Legisla-

ture, the Article II] Judiciary, and the sovereign States.

Rarely has the Executive attempted such a bold constitu-

tional trifecta.

4. The President’s qualifications to act in

foreign affairs cannot override feder-

alism or the Constitution's separation

of powers.

Finally, the Solicitor General argues that the Presi-

dent is “uniquely suited,” “best positioned,” and “uniquely

qualified” to “respond expeditiously” to decisions of the

ICJ. U.S. Br. 11-12; see also Pet. Br. 37. These points are

pertinent to a discussion of how to divide government

power in the first instance. See, e.g., THE FEDERALIST NO.

70, at 472 (Alexander Hamilton) (J. Cooke ed. 1961). But

they cannot provide a fulcrum for prying the separation of

powers out of the Constitution's structure, nor for overrid-

ing the rule of law that the Senate actually ratified in the

Vienna Convention, as authoritatively construed by this

Court.

If the Solicitor General's “efficiency” argument sounds

familiar, it is because this Court has heard it, and rejected

it, so often. See, e.g., Bowsher v. Synar, 478 U.S. 714, 736

(1986) (“the fact that a given law or procedure is efficient,

convenient, and useful in facilitating functions of govern-

ment, standing alone, will not save it if it is contrary to the

Constitution.”) (citation omitted); INS v. Chadha, 462 U.S.

919, 944 (1983) (“Convenience and efficiency are not the

primary objectives - or the hallmarks - of democratic

government.... ”); United States v. Brown, 381 U.S. 437,

443 (1965) (“This ‘separation of powers’ was obviously not

instituted with the idea that it would promote governmen-

tal efficiency. It was, on the contrary, looked to as a bul-

wark against tyranny.”). Unsurprisingly, the President

pressed this same “efficiency” argument in The Steel

Secure Case. where it was embraced by the dissent, see

343 U.S. at 690 ‘Vinson, C.J., dissenting), and, naturally.

rejected by the Court. See id. at 613-14 (Frankfurter, J.,

concurring’; td. at 629 (Douglas, J., concurring); id. at 649-

50, 655 (Jackson, J., concurring).

Here, the Article | branch, in the form of the Senate,

has ratified a treaty and thereby enacted the supreme

law of the land for the President to enforce: the Vienna

30

Convention and its requirement that consular mghts

thereunder be implemented “in conformity with” the law of

the forum state. And the Afticle III branch has given that

law an authoritative construction. The Article II branch

has no power either to legislate unilaterally a different

rule that suits its needs, see Clinton v. New York, 524 U.S.

at 445-46, nor to reverse this Court and render an inter-

pretation of the treaty that is more to its liking. See

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803);

Sanchez-Llamas, 1268S. Ct. at 2684.

CONCLUSION

For these reasons, the decision below should be

affirmed

Respectfully submitted,

CHARLES J. COOPER

Counsel of Record

BRIAN STUART KOUKOUTCHOS

COOPER & KIRK, PLLC

1523 New Hampshire Avenue, NW

Washington, D.C. 20036

202) 220-9600

Counsel for Amici Curiae

August 2007