# Amicus Curiae Brief — Medellin v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0518%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2008 - **Citation:** 552 U.S. 491 ## Text AY | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0518%3A17. Public record. Not legal advice.