Medellín v. Dretke – Oral Argument – March 28, 2005

Media for Medellín v. Dretke

Audio Transcription for Opinion Announcement – May 23, 2005 in Medellín v. Dretke

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William H. Rehnquist:

We’ll hear argument now in No. 04-5928, Jose Medellin versus Doug Dretke.

Mr. Donovan.

Donald Francis Donovan:

Mr. Chief Justice, may it please the Court:

This case was exceptionally important when the Court granted it, and it’s even more important now.

It belongs in this Court.

At the same time, Mr. Medellin requests that the Court hold the case while he goes back to Texas.

I’d like to explain why, before I turn to the merits.

Under its decision last year in ex parte, so far, Texas has modified its longstanding two-forums rule.

Court of Criminal Appeals will now entertain a subsequent application for habeas writ, even if there are proceedings pending before a Federal Court, so long as the Federal Court stays its proceedings.

The Court designed that procedure so that a habeas petitioner could return to state court to exhaust an unexhausted claim without compromising his right to federal habeas–

William H. Rehnquist:

Ordinarily do not think of that as covered in this Court.

Donald Francis Donovan:

–Well, the Court of Criminal Appeals did not specify; but we find, of course, ourselves in an unusual posture, in the sense that the sequence of events here are such that even… the Court of Appeals has decided the Avena judgement claim, the Court has–

Sandra Day O’Connor:

But has this Court ever just said,

“Fine, we’ll hold it in abeyance and come back next term? “

I can’t recall that we’ve done that.

Donald Francis Donovan:

–Well, it’s an… it is, in fact, an unusual posture.

And it–

Sandra Day O’Connor:

I mean, it would be more likely that we would dismiss this, improvidently granted.

Donald Francis Donovan:

–Well, the case, though, has not been improvidently granted, with the greatest respect to the Court.

Of course, the case was important when the Court granted it.

The question, whether or not the United States will comply with an international obligation that every actor here… the United States, Texas, and the Petitioner… all recognize as binding, is an important question.

The President has now come in and said that it’s even more important, by saying that, in fact, the United States will comply.

Sandra Day O’Connor:

Well, it’s so odd, because usually what happens, if there is something that could occur at the state court level, is the state court itself would hold off until this Court had resolved whatever the case was.

So, this is a very unusual request.

Donald Francis Donovan:

We recognize that it’s an unusual request, because of the unusual circumstances.

And, of course, the alternative, if the Court is not prepared to stay, or, for example, vacate, in light of the presidential determination, remand to the Court of Appeals–

William H. Rehnquist:

Well, I think… I think granting a stay could be seen as validating the position of the government without ever having an opinion on it.

Donald Francis Donovan:

–Well, actually, I think that a stay would actually show respect to each of the relevant actors here.

And so–

Sandra Day O’Connor:

Well, why shouldn’t we just go ahead and decide the case, if we can?

Donald Francis Donovan:

–Well, we believe that there are, in fact, firm grounds on which this Court could grant… could decide the question presented, because, in fact, for the reasons… there are really three points here… for the reasons we’ve laid out, the Court, under the direct command of the Supremacy Clause, has… can give effect to the Avena judgement as the rule of decision.

The President’s determination, in fact, eliminates the… even setting aside its independent force, eliminates the basic objection of Texas to that course of action.

And then, of course, there’s the basic independent full force of the Supremacy Clause.

So if I may move to that, the Court, as I said, has recognized the importance of the United States complying with an international obligation reflected in treaties entered into by the democratically elected representatives of the American people.

I want to address the question presented first, because, I… before… setting aside the presidential determination… and just take a look at where we stand after the briefing by the parties as a… on the question whether or not the Avena judgement provides the rule of decision.

First of all, there’s an extraordinary amount of agreement between petitioner and respondent.

Respondent agrees that the Vienna Convention is a binding legal commitment of the United States.

The Respondent agrees that the Convention is self-executing.

The Respondent agrees that the United States agreed to submit disputes concerning the application and interpretation of the Convention to the ICJ.

He agrees that the United States agreed that any determination by the International Court of Justice would be binding.

William H. Rehnquist:

How about the creation of a private right of action?

Donald Francis Donovan:

Well, there is a… there is a… there are basically three objections that the Respondents made.

One of them is the cause of action.

But the Respondent confuses the creation of a cause of action with what the… a treaty will typically do.

The treaty here lays out the rights, and the treaty lays out an individual right, as determinated by the ICJ.

The treaty will not customarily create the cause of action.

For how the United States will abide by its legal obligations… that is, how the United States will give effect to the international obligation… we look to domestic law.

William H. Rehnquist:

Well, the courts… the courts usually do that, don’t they?

Donald Francis Donovan:

That’s exactly right.

But we would look… we would look to how the United States has provided for the implication of that international obligation.

Here, in the first instance, we have a direct command of the Supremacy Clause, a very fundamental choice made by the Framers–

William H. Rehnquist:

That doesn’t speak to the private right of action–

Donald Francis Donovan:

–The private right of action is found here in the habeas statute itself, which provides that a person in custody in violation of laws, treaties, or the Constitution of the United States can seek–

Sandra Day O’Connor:

So, presumably, that could provide some cause of action, quite irrespective of the ICJ decision.

Donald Francis Donovan:

–Well, it could… it… the cause of action is, itself, provided by–

Sandra Day O’Connor:

Yeah, I mean, you don’t–

Donald Francis Donovan:

–the rest of the–

Sandra Day O’Connor:

–you don’t really have to get into whether that judgement is enforceable here.

I mean–

Donald Francis Donovan:

–Well–

Sandra Day O’Connor:

–we could look at… look at it from the perspective of the habeas statute.

Donald Francis Donovan:

–Well, that’s right.

I mean, there are three… there are three basic questions that need to be–

Ruth Bader Ginsburg:

But is it right… I mean, you couldn’t… you could not… unless the ICJ decision gave a right to an individual, and you had no claim under the federal habeas statute… and it is unusual, is it not, for a judgement of the International Court of Justice to recognize the right of an individual, as opposed to being just a judgement between nations?

Donald Francis Donovan:

–Well, it may be that, because of the character of the typical dispute that the International Court of Justice hears, that it does not typically address such a question.

But, plainly it has jurisdiction to do so when the underlying treaty confers a right.

And that’s exactly one of the questions that was litigated between Mexico and the United States in the Avena judgement.

And the Court held that, in fact, this treaty does provide individual rights.

So–

Ruth Bader Ginsburg:

How many… how many times has the ICJ held that, that a treaty, apart from being contract between the signers, confers individual rights?

Donald Francis Donovan:

–Well, it has, of course, held, in… first, in LaGrand and then here in Avena.

In most of the cases the ICJ has held, however… it has dealt previously, for example, with rights in this situation.

For example, rights in the nature of diplomatic protection.

For example, when the United States went to the ICJ in the Tehran hostages case, it went, not only in its own behalf, but in the exercise of diplomatic protection.

And in that posture, the ICJ–

Ruth Bader Ginsburg:

But there was no individual in that case.

That was a case of one nation against another.

There was no individual, like the Plaintiff here.

Donald Francis Donovan:

–But, in fact, in that case the United States did assert the rights of its nationals who were held hostage.

It didn’t… the case didn’t come down on that point.

But, likewise, the famous Barcelona–

Ruth Bader Ginsburg:

Well, that’s what I asked, if this… I know that, certainly in the context of the Vienna Convention, there have been the series of decisions you mentioned; but I was wondering whether, outside the Vienna Convention, there has been any similar judgement of the ICJ that operates directly on individuals.

Donald Francis Donovan:

–Well, for example, in the Barcelona Traction case, which is another case where, again, there were rights of a particular company and a particular national decided with… under the guise of diplomatic protection.

And that’s the posture which this case went forward.

Mexico asserted rights not only on its own behalf, but on behalf of its nationals.

And, therefore, if we think of the… the three objections that was… the Respondent has made to whether this Court can give us back the Avena judgement, they come down… they include the two we’ve just discussed, and one more.

First, they’ve said there are no individual rights here.

But, of course, the treaty, as this Court suggested in Breard, talks specifically about rights… quote/unquote, “rights”.

And that, of course, is what the ICJ held.

If the Avena judgement is binding, if the Avena judgement informs the Vienna Convention with binding effect, then that question is not the question this Court needs to answer.

Donald Francis Donovan:

The second point that–

Antonin Scalia:

Do you think… do you think that the President can enter into a treaty, with the approval of Congress, that would provide that, in a particular combat, the Commander in Chief will be somebody other than the President of the United States?

Donald Francis Donovan:

–Well, the Court has recognized that the only limitations of the treaty-making power are affirmative litigations… affirmative limitations within the Constitution, itself.

Antonin Scalia:

Right.

Donald Francis Donovan:

And if–

Antonin Scalia:

And you think that the Constitution provides the President shall be Commander in Chief, and, therefore, that can’t be given away.

Donald Francis Donovan:

–Well–

Antonin Scalia:

Right?

Donald Francis Donovan:

–no, the… obviously, a treaty would not be able to amend the Constitution.

Antonin Scalia:

Right.

Well, what if I think that the Constitution provides that all questions of federal law… statutory, treaty, constitutional… are to be decided, ultimately, by the Supreme Court of the United States.

Can a treaty give that away?

Donald Francis Donovan:

Well, a treaty would not be… this treaty does not do that.

When the–

Antonin Scalia:

It does if we’re bound by the determination of Avena.

It does if I have to believe that individual rights were created here, without reexamining the question on my own.

Donald Francis Donovan:

–Well, but the… but the Court has… it… the Court has regularly… and it has never been an objection to Article III power to give effect to a judgement that has been rendered in another sphere by another adjudicatory authority.

That happens all the time with respect to–

Antonin Scalia:

Not a question concerning United States law.

Donald Francis Donovan:

–But this is a question–

Antonin Scalia:

You’re talking here about a question of United States law, What is the meaning of this treaty that the United States has entered into?

Do you know another case where we have… we have been bound by a judgement of a foreign court or an international court concerning the meaning of United States law?

Donald Francis Donovan:

–Well, what the Court would be giving effect to is the determination by the political branches themselves to enter into the treaty.

Sandra Day O’Connor:

Well, I have a question that is much along the same lines, whether this Court must apply Avena as the rule of decision, or perhaps say,

“No, it does not have to do that. “

Then you’re left with looking at the treaty itself.

And does that… can that take effect as American law?

Donald Francis Donovan:

Well, the treaty does take effect as American law.

And–

Sandra Day O’Connor:

And, can–

Donald Francis Donovan:

–in fact–

Sandra Day O’Connor:

–is it open in this case to… for this Court to apply that, not Avena?

Donald Francis Donovan:

–Well, the Court could, in fact, apply the treaty.

It could reach its own interpretation of the treaty, in accord with the Avena judgement.

But we think–

Sandra Day O’Connor:

Is that open in this case?

Donald Francis Donovan:

–Well, it surely would be open in this case, but it would not be open at this point.

We’ve suggested alternative bases by which the Court could conform with Avena.

But we do believe that Avena, in fact, controls the decision, for this reason, that, in the first instance, the political branches have agreed to the substantive obligations under the treaty; in the second place–

Sandra Day O’Connor:

Well, suppose we think it can’t control?

Now, then what’s open to us?

Donald Francis Donovan:

–Well, if the… if the Court decided that the Avena judgement did not control, then it would obviously go to the terms of the treaty itself.

But our argument is that, in fact, by virtue of the political branches’ decision and in operation of the treaty… of the Supremacy Clause, the Court must be… must give effect if the Court reached a decision–

Anthony M. Kennedy:

Well, can the President give an interpretation of the treaty unilaterally that is binding on us?

Can the President sign a treaty and then, a year later, give an interpretation of that treaty that’s binding on us, insofar as what the treaty means?

Donald Francis Donovan:

–Well, the Court has–

Anthony M. Kennedy:

Can he do that?

Donald Francis Donovan:

–Well, no, the treaty… the Court has traditionally accorded deference to the Executive’s determination, but has not… has not given that–

Anthony M. Kennedy:

Right.

I would say that that, ultimately, is for this Court.

Then, if that’s so, how can he agree with the… to confer jurisdiction on the World Court, which would do the same thing?

Donald Francis Donovan:

–Because it’s not just the President that’s done that; it’s the treaty-makers, it’s the President acting with the advice and consent of the Senate in a context in which they are empowered to authorize a treaty… enter into a treaty.

And they’ve done–

Sandra Day O’Connor:

Well, is the constitutionality of the President’s action here before the Court in this case?

Donald Francis Donovan:

–Well, the–

Sandra Day O’Connor:

Only peripherally.

Is that an issue for us to decide in this case?

Donald Francis Donovan:

–The question that we’d ask–

Sandra Day O’Connor:

I hadn’t thought so.

Do you think it is?

Donald Francis Donovan:

–Well, the… we’ve asked that the Court take account of the President’s determination in this respect.

The Vienna Convention sets out a… sets out substantive obligations.

The ICJ… we’ve agreed to go to the ICJ for the interpretation obligation of those obligations.

The ICJ has now ruled.

The only objections, in effect, that the Respondent has made is to say,

“This Court can’t decide that question. “

because it’s within the power of the political branches.

In effect, it said,

“This Court should step back and await the permission of the Executive. “

And in Mr. Medellin’s view, this Court does not need to do that.

But if you did need to do that, which is the Respondent’s essential objection, the President has now said, not only should… not only can the Court give effect to the Avena a judgement, but that it’s in the paramount interest of the United States that it do so, and that it do so promptly, and that, therefore, any question about the… about the effectiveness of the Avena judgement has, on Texas’ own terms–

Anthony M. Kennedy:

What’s the case–

Donald Francis Donovan:

–on the Respondent’s–

Anthony M. Kennedy:

–what’s the case that you’re citing for this proposition, that the President and the Senate can, in effect, confer on an international tribunal the obligation to bind this Court with reference to an interpretation of a treaty?

What’s the best case you’ve got for that?

Donald Francis Donovan:

–Well, it goes to the Supremacy Clause itself, Justice Kennedy.

It’s–

Anthony M. Kennedy:

So you’re telling me you don’t have a case.

Donald Francis Donovan:

–Well, I’m not suggesting that there is direct precedent in this Court for this circumstance.

We recognize that the circumstances presented in these particular–

Stephen G. Breyer:

Were you saying 51-case set?

In respect to that deference, I suppose, he interprets the treaty in such a way that the Avena decision, in his opinion, as applied to this 51-set… case set is what the treaty means.

Donald Francis Donovan:

–Well, he has, in fact, come–

Stephen G. Breyer:

Is that right, or not?

Donald Francis Donovan:

–Well, that’s right.

He has… he has, in fact, endorsed the notion that the United States should comply.

Stephen G. Breyer:

Well, if it is… what I’m wondering is if this is similar to that insurance case out of California, where, in fact, we gave considerable deference to Mr. Eisenstat’s interpretation of the relationship of the treaty to the insurance laws of California.

Donald Francis Donovan:

Well, it… that is true.

And the Garamendi–

Antonin Scalia:

That was not an interpretation that ousted this Court of jurisdiction over the matter, though, was it?

Donald Francis Donovan:

–Well, the–

Antonin Scalia:

Don’t you think that’s a little bit different?

Donald Francis Donovan:

–But the Garamendi case did, in fact, endorse the President’s power.

It’s similar to the Dames & Moore case–

William H. Rehnquist:

–Yes, but in that case it was overseeing arrangements that were made by our government, not… they didn’t have that much local authority.

Donald Francis Donovan:

–Well, that’s… that is a distinction in the cases, but they still come down to a notion that… both Garamendi and Dames & Moore… to the President’s authority to give effect to international obligations.

William H. Rehnquist:

Well, but–

Donald Francis Donovan:

And here we have–

William H. Rehnquist:

–doesn’t the President, in Dames & Moore, enter into an agreement with Iran?

Donald Francis Donovan:

–Well, that’s right.

But that’s… that situation doesn’t really distinguish the cases, because in Dames & Moore v. Regan there was, in fact, an agreement, and the President acted pursuant to that agreement.

But here we have–

William H. Rehnquist:

But we decided, in Dames & Moore, that he was acting pursuant to the agreement.

Donald Francis Donovan:

–Well, they did act pursuant to the agreement, and that’s what the Court decided, but that’s precisely what the President is doing here.

The President is giving effect to commitments made by the United States in the Vienna Convention, in the Optional Protocol, in the ICJ statute and in the United Nations charter.

William H. Rehnquist:

But we didn’t–

Donald Francis Donovan:

So if–

William H. Rehnquist:

–we didn’t decide it on the basis that President Reagan says,

“This is what in particular the agreement affected. “

We examined it for ourselves.

Donald Francis Donovan:

–That’s true, but… and the Court looked at the… the Court did not reexamine the terms of the agreement.

What the Court decided in that case was that it was within the President’s foreign-affairs authority to enter into an agreement that would essentially required American claimants to go to the Iranian-United States Claims Tribunal.

Antonin Scalia:

That doesn’t… that doesn’t involve an interpretation of the treaty that is rendered by somebody else and that is binding upon this Court.

I mean, it’s just a matter of different magnitude.

To say that there can be private claims, fine; but that doesn’t say that the interpretation of a treaty entered into the by the United States is subject to a court, other than this Court.

Donald Francis Donovan:

The treaty itself is what the United States has committed itself to.

It’s the treaty in addition that the United States–

Stephen G. Breyer:

We have to look beyond the President’s interpretation of the treaty.

It happens that the President is interpreting it, for reasons related to what the ICJ said.

But that doesn’t make us have to look beyond the reason for the President interpreting it the way he wants.

Stephen G. Breyer:

I mean, do we have to defer to the ICJ, or do you… is it not sufficient to defer to the President, who is operating within his foreign-affairs power for whatever set of reasons he deems sufficient?

Donald Francis Donovan:

–Well, that’s precisely why we’ve said, in fact, what… there are two independent sources of authority here, because, by operation of the Supremacy Clause, the ICJ, the interpretation and application of the Avena judgement would be given effect.

Now we have an independent source of right in the form of the President’s determination.

Antonin Scalia:

Except that the President doesn’t think that the remedy is in federal habeas.

The President thinks that the remedy is within the states.

Donald Francis Donovan:

Well, the President has said that it should be given effect, and hasn’t… and hasn’t said that it shouldn’t be in federal habeas.

To the contrary, the President has indicated that, in fact, habeas would be available.

David H. Souter:

Well, your position, I take it, is that if somehow we follow your suggestion so that the President’s suggestion may be put into effect in the state courts, that there would still be a habeas jurisdiction, ultimately, over the result if you’re dissatisfied with what happens in Texas.

Do I understand you correctly?

Donald Francis Donovan:

That’s right, there would be–

Antonin Scalia:

Now, that–

Donald Francis Donovan:

–there would surely be habeas jurisdiction.

Antonin Scalia:

–that’s an interesting question.

Let’s turn from the more cosmic questions into how you overcome the impediment that in order to get a Certificate of Appealability here, you have to show that there was… you have to make a substantial showing of the denial of a constitutional right.

What constitutional right has been denied here?

Donald Francis Donovan:

Well, at this point, of course, the Court need not address that question on this… on this petition.

The question that the Court granted was, Will the United States abide by the Avena judgement?

And that–

Antonin Scalia:

No, I take–

Donald Francis Donovan:

–question would be answered without–

Antonin Scalia:

–that question to be a jurisdictional question, as far as the lower court is concerned; and, therefore, I think it’s a jurisdictional question for us.

Donald Francis Donovan:

–Well, of course, for the reasons we’ve laid out in our brief, we do not regard it as jurisdictional for this Court.

The Court clearly has jurisdiction under the petition to decide the questions on the basis that they should decide the question presented.

Anthony M. Kennedy:

No, no.

Donald Francis Donovan:

But even if it–

Anthony M. Kennedy:

No.

We can’t forego limits on our jurisdiction simply by granting the question.

Donald Francis Donovan:

–No, but–

Anthony M. Kennedy:

You don’t say,

“Oh, you’ve granted a question; therefore, you have to decide whether you have jurisdiction or not. “

Donald Francis Donovan:

–But this–

Anthony M. Kennedy:

See?

And, as Justice Scalia indicates, the COA is a jurisdictional requirement.

Donald Francis Donovan:

–But the COA is a jurisdictional requirement for an appeal in the Court of Appeals.

This comes to this Court as… on the denial of a Certificate of Appealability–

Antonin Scalia:

Yes, but–

Donald Francis Donovan:

–and on a petition from that.

Antonin Scalia:

–Do you know of any–

Donald Francis Donovan:

And so, the question raised by–

Antonin Scalia:

–do you know of any case in which a lower court did not have jurisdiction, but we do have jurisdiction on appeal from in a… from a court that didn’t have jurisdiction?

Donald Francis Donovan:

–But the Court… the Court of Appeals had jurisdiction to entertain an application for Certificate of Appealability.

And this Court, in turn, has jurisdiction to grant a petition from the denial of the Certificate of Appealability.

Antonin Scalia:

Well, if the–

Donald Francis Donovan:

And in that posture–

Antonin Scalia:

–had jurisdiction to–

Donald Francis Donovan:

–the Court can decide the question presented.

David H. Souter:

You’re simply saying that any court has jurisdiction to determine its jurisdiction.

We grant you that.

But, granted that, if we reach it, what is your answer to the claim that the COA requires a showing of substantial infringement of constitutional, as distinct from other sources of, rights?

Donald Francis Donovan:

Well, first of all, we believe that in the posture that this case comes to this Court, there has been a substantial denial of a constitutional right, even in the terms that Texas defines the statute, because what we have here is a claim based on the Avena judgement… I mean, the ICJ’s interpretation and application of the Avena judgement that the Court of Appeals held in effect that had been defaulted prior to its coming into existence.

Because the effect of the Court of Appeals judgement that the Avena… dismissing the… or denying the Avena… deciding the Avena judgement claim… was to say… was to give effect to a procedural default of the Avena judgement when it had not yet–

David H. Souter:

So you’re saying the–

Donald Francis Donovan:

–That is–

David H. Souter:

–the constitutional violation is the violation of the Supremacy Clause.

Donald Francis Donovan:

–Well, in that–

David H. Souter:

Is that what you’re saying?

Donald Francis Donovan:

–Well, it’s a violation here of both the Due Process Clause and the Supremacy Clause.

Due process–

David H. Souter:

Due Process Clause because?

Donald Francis Donovan:

–Because it was an arbitrary denial of a forum in which to hear the Avena judgement claim, not simply the… a different source of right.

Donald Francis Donovan:

In other words, although the Avena judgement claim comes up on Texas as a proposition as a… under a treaty, the action of the Court of Appeals was to deny that claim without giving it a forum.

That is to say, without… that… before it had been raised itself, before it even existed… because the effect of the Court of Appeals was to give effect to a procedural default of a right that hadn’t come into effect.

And, therefore, in that context, it’s effectively a due process claim.

Ruth Bader Ginsburg:

How do you answer–

Donald Francis Donovan:

In addition it’s a violation–

Ruth Bader Ginsburg:

–the related… the related question that… well, assuming the Vienna Convention is certainly law, and treaty stands on the same footing as law, but I believe that the… Texas and the Government have said the AEDPA statute is the later-in-time provision, and when you have two provisions with a statute treaty, the later-in-time prevails.

So why did… why isn’t the AEDPA controlling, and not the Vienna Convention?

Donald Francis Donovan:

–With respect to this claim, AEDPA itself would be, in our view, ousted by The Charming Betsey Principle.

But in the particular context here, you don’t have… you don’t have a conflict with respect to the constitutional claims themselves; you have a constitutional claim based on a denial a right that did not exist, and you also have a constitutional claim based on the Supremacy Clause itself.

William H. Rehnquist:

And you’re talking about denial of a right that didn’t exist.

That seems perfectly rational, the way you put it.

Donald Francis Donovan:

Well, that’s–

William H. Rehnquist:

If the right didn’t exist, it should have been denied.

Donald Francis Donovan:

–And perhaps… but the effect of that… and perhaps a more prudent way to put it is that the effect of that is to deny Mr. Medellin a forum, an… arbitrarily deny him a forum on the effect of the Avena judgement, because the effect was to deny the Avena judgement claim based on a procedural default before the Avena judgement had been rendered.

If I may save the remaining… my remaining time for rebuttal?

William H. Rehnquist:

Very well, Mr. Donovan.

Mr. Cruz, we’ll hear from you.

R. Ted Cruz:

Mr. Chief Justice, and may it please the Court:

At the outset, two issues bear emphasis.

First, the Court need not, and should not, address the many interesting issues of international law and constitutional law that swirl about this case.

Antonin Scalia:

They really are interesting, you know.

[Laughter]

R. Ted Cruz:

They are, indeed.

And this may launch a thousand law-review articles.

But with respect to the question before the Court, there is a simple and straightforward statutory basis to resolve this case; namely, that Section 2253 of the AEDPA does not allow a Certificate of Appealability for nonconstitutional claims.

Stephen G. Breyer:

Before we–

Sandra Day O’Connor:

Can that–

Stephen G. Breyer:

–before we–

Sandra Day O’Connor:

–be waived?

Can that be waived?

Sandra Day O’Connor:

And did Texas raise that issue in the Fifth Circuit at all?

R. Ted Cruz:

Justice O’Connor, Texas did not explicitly waive this ground before the Fifth Circuit–

Sandra Day O’Connor:

But it wasn’t raised in the Fifth Circuit by Texas, was it?

R. Ted Cruz:

–That’s correct, it was not.

But–

Sandra Day O’Connor:

And I assume, although we haven’t so decided, that that can just be waived.

R. Ted Cruz:

–Well, this Court has characterized the standards for a COA as jurisdictional in a threshold inquiry.

Stephen G. Breyer:

–But this is also a jurisdictional.

They decided it on a jurisdictional ground.

They decided that no COA lay, for the reason that they said.

Now, I guess, though we wouldn’t necessarily have to, we could simply say they’re either right on that or they’re wrong on that.

And if they’re wrong on it, send it back, and then you can argue whether there are other grounds; in which case, they could go into waiver, they could go into whether “constitutional” means to embrace “treaty”, and all those other interesting arguments that we could write law-review articles about that were not, in fact… they swirl around in this case, and you would not, in fact, be able to… you wouldn’t, in fact, have to pronounce on them now, here, when they really haven’t been thoroughly gone into, below.

R. Ted Cruz:

Justice Breyer, there are alternative jurisdictional grounds this Court could address, but the COA ground is straightforward.

It flows from the direct text.

And Petitioner has given this Court no reason to disagree with every Court of Appeals that has looked at this question, all of whom have determined that “constitutional” means “constitutional”.

It doesn’t mean “treaty”, it doesn’t mean “statute”.

And that’s every Court of Appeals that’s looked at that.

Given that that ground is direct and straightforward, there is no need for this Court to venture into the difficult constitutional areas, the difficult questions of international law, when there is a straightforward statutory–

David H. Souter:

Well, of course, we wouldn’t even have to venture into… possibly have to venture into this issue of law if Texas were interested in following the determination of the President.

I take it that the suggestion that your brother has made, that, in fact, we take no action at this point so that they may return to Texas with the President’s determination, is not appealing to you.

R. Ted Cruz:

–We do not believe the Court should stay this action, because whatever the resolution of the subsequent proceedings that are now filed in Texas, the resolution of that question will not control the federal-law questions here.

David H. Souter:

Well, but does Texas have a position in response to the President’s determination?

R. Ted Cruz:

Our first position would be, as Justice O’Connor said, that that question is not presented in this case.

That will surely be litigated in the Texas state courts.

Ruth Bader Ginsburg:

You said… you said that something has started in the Texas courts.

We have the motion to stay this case, and your response that it shouldn’t be stayed, that we should decide this case.

But what is going on, at this moment, in the Texas courts?

R. Ted Cruz:

Justice Ginsburg, this weekend, Medellin filed a subsequent state habeas application with the Court of Criminal Appeals, in which he asked the Court of Criminal Appeals to stay its hand, pending this Court’s decision whether this Court should stay its hand, pending the Court of Criminal Appeals’ resolution–

[Laughter]

And so, that is a 50-page filing that they just filed this weekend in which–

Ruth Bader Ginsburg:

And after the Texas court stays its hand, then what action is asked?

R. Ted Cruz:

–Well, what it asks for is to authorize a subsequent state habeas proceeding based upon the President’s determination, which he characterizes as the predicate for a new claim.

And if that is correct, then there is yet another problem to his getting relief here, which is that he has failed to exhaust what he claims is now the predicate.

David H. Souter:

Well, but we don’t… we may not reach that, if Texas says,

“Well, yes, you’re right, it is a claim, and we’ll entertain it. “

Does Texas have a position on that question yet?

R. Ted Cruz:

With respect to whether the presidential determination is authorized, any… that matter will be resolved in subsequent state court litigation.

Any responsible state attorney–

David H. Souter:

Well, I’m sure it will be, but does Texas have a position on that, at this point?

R. Ted Cruz:

–We would respectfully submit, as would any responsible state attorney general, that there are significant constitutional problems with a unilateral Executive determination displacing generally applicable criminal laws.

But whatever the resolution of that question, that would ultimately be reviewable by this Court, on certiorari review.

Anthony M. Kennedy:

Well, that was my next… my question, and it follows on the question Justice Souter asked.

Does the attorney general concede, or do you not, or acknowledge that there are Texas procedures in which these questions can be litigated?

R. Ted Cruz:

There absolutely are Texas procedures in which the question of the validity of the President’s determination can be litigated.

And we would anticipate that that would be litigated–

Stephen G. Breyer:

But that–

R. Ted Cruz:

–and resolved–

Stephen G. Breyer:

–Yeah, that’s what I’m trying… I’m trying to get to, which is, What is actually the practical thing to do now?

Should we stay it, with a short per curiam, which says, “Texas, go ahead”, or should we do something else?

Suppose we just dismiss this, as you say, on the alternative ground.

Well, then what happens if Texas objects to the President’s order and turns out to be right, legally?

See, if that were true and then the review showed that it was true… I don’t know that it is true, but if it were, then we should turn to the Fifth Circuit claim, and there are 51 cases that depend on it.

But if we’ve dismissed it, by that time it’s gotten mixed up in the very issue you raise.

The question is, Does “constitutional” embrace “treaty”?

And I think there is one case that says it does, actually; or a treatise, anyway.

So that’s an issue.

And then they might refuse a COA on that ground.

And then there might… and we’ll never get this basic question decided.

I’m trying out on you the argument for actually staying it, rather than digging it.

R. Ted Cruz:

–Whatever the resolution–

Stephen G. Breyer:

What do you think?

What do you–

R. Ted Cruz:

–I do not believe the Court should stay it.

Digging it would be an option.

I also believe… I believe the most correct–

Sandra Day O’Connor:

Well, why do you believe we shouldn’t stay it?

I mean–

R. Ted Cruz:

–I don’t believe the Court should–

Sandra Day O’Connor:

–as an opinion, it’s based on what?

R. Ted Cruz:

–Because whatever the resolution in the State Court litigation, the resolution of that question will not impact the legal question before this Court now, which is, on first federal habeas, a claim that was filed that did not rely on Avena when it was filed, did not rely on the presidential determination–

John Paul Stevens:

Yes, but is it not true that it’s entirely possible that the Texas proceeding would make this issue moot–

R. Ted Cruz:

–That is true.

John Paul Stevens:

–and, therefore, avoid the necessity for deciding a lot of very difficult questions?

R. Ted Cruz:

That is true.

That is frequently the case, that in a… in a case that is being litigated, there are other proceedings that have the potential to make something moot.

Anthony M. Kennedy:

And is it also true that, in the Texas proceedings, they necessarily would involve a federal question on which this Court could, if it chose, grant certiorari on direct review?

R. Ted Cruz:

Absolutely.

And the difficult questions about the constitutional authority for the Executive determination may come back to this Court, but they’re not presented by the case right now before the Court.

The most direct avenue, I would submit, for this Court is to resolve this decision by affirming the Fifth Circuit judgement, and by affirming it on the grounds that a COA could not issue because this was not a constitutional claim.

And that would necessarily entail affirming Breard to the extent that Breard noted that a subsequently enacted statute, the AEDPA, to the extent of a conflict, superceded the Vienna Convention.

Stephen G. Breyer:

–Is the question… how difficult is the question?

The President of the United States has issued a document where he says,

“Exercising my foreign-affairs power, in my opinion the treaty, as I… I accept the meaning of the treaty as set forth by the ICJ and apply it to these 51 cases. “

So he’s deciding that.

And why doesn’t he have the authority to decide what that treaty means in these circumstances?

That’s his decision.

And Texas is bound by the Constitution.

R. Ted Cruz:

We would agree that the fact that the President has acted underscores the point made by both Texas and the United States, that the responsibility for determining the remedy to the Avena judgement is found in the political branches.

And the fact that the President is acting underscores this, that there is no precedent for an ICJ judgement being judicially enforceable.

Indeed, Respondent is aware of no country in the world that accords binding effect to ICJ judgements in their own domestic courts.

R. Ted Cruz:

And–

Sandra Day O’Connor:

Well, Mr. Cruz, maybe the treaty becomes part of federal law if it’s properly ratified and signed, as this one was.

Now, it’s possible that the treaty itself gives certain individually enforceable rights to Mr. Medellin.

And we can disregard the question of whether the Avena judgement is enforceable.

R. Ted Cruz:

–Justice O’Connor, that’s–

Sandra Day O’Connor:

Isn’t that right?

R. Ted Cruz:

–that’s absolutely correct, that this Court–

Sandra Day O’Connor:

I mean, it would be open to this Court, presumably, to say, that treaty became part of federal law when it was ratified, and Congress can enact subsequent laws.

It did in AEDPA.

But, in any event, the treaty could give rise to individual enforceable rights.

Is that correct?

R. Ted Cruz:

–To be sure, this Court could certainly determine that the Vienna Convention gives rises to the individual rights.

That interpretation, however, would conflict with the express language of the preamble to the treaty, and would also conflict with the consistent position of the Executive Branch since 1969, when this treaty was ratified.

For those 36 years, the State Department has consistently answered the question, that the Vienna Convention does not give rise to individual rights.

And, indeed–

Ruth Bader Ginsburg:

Did the Breard case speak to that issue?

R. Ted Cruz:

–The Breard case simply made reference to… that there was, arguably, individual rights.

It didn’t purport to resolve that.

It said, even if there were, it is barred by AEDPA.

So I don’t believe the Breard case answers it, one way or the other; but, given the United States’ consistent position… and, indeed, it uses very similar language in later treaties, such as the two terrorism treaties that are cited in the United States’ brief.

It is worth underscoring that on every question currently before this Court in this proceeding, the United States agrees entirely with Texas, that this Court’s resolution of this case should be to affirm the judgement of the Fifth Circuit because a COA should not have issued.

William H. Rehnquist:

Well, if we came to the conclusion that the treaty, by its own force, did not create enforceable individual rights, then we would have to get to the question of whether the President’s proclamation changes that result.

R. Ted Cruz:

Only in the most threshold sense; because, on its face, the President’s proclamation, or determination, is focused only on state courts, and what the President says is that he has determined that the Avena decision will have binding effect in state courts.

So, according to the Executive determination, that does not have a binding effect on this proceeding; but, rather, on a subsequent–

William H. Rehnquist:

But that seems to be topsy-turvy, that a treaty would have effect in state courts but not in federal court.

R. Ted Cruz:

–We don’t disagree that the Executive could have chosen other avenues.

Nevertheless, Medellin’s argument that, given the Executive has said,

“This should have effect in some other proceeding. “

we should disregard what the Executive has said about this proceeding and apply it here, notwithstanding the President’s express determination it wouldn’t apply here.

Ruth Bader Ginsburg:

But isn’t what the President’s memorandum says exactly what the Avena judgement said?

Ruth Bader Ginsburg:

That is, the President said,

“Well, the ICJ said that these people are entitled to review and reconsideration of their guilt and of their punishment. “

“And so, I think that’s what should happen. “

“I agree with the judgement, or at least I think it should be enforced, and the only place it can be enforced is in the state court that rendered the judgement, because the ICJ said what the United States has to implement is, they have to give a review and reconsideration. “

Now, I suppose, as far as the ICJ is concerned, they don’t care if it’s done by some federal tribunal, or state, but within our system, it must be the state, mustn’t it?

R. Ted Cruz:

Well, certainly under the terms of the President’s order, where the President said that he’s determined it shall… should be given effect, quote,

“By having state courts give effect. “

by the express terms of the order, particularly as explained in the United States’ brief, where that is conjoined with the position of the United States, that in this proceeding, on appeal from the first federal habeas proceeding, that there is no effect to the Avena judgement.

That’s the position the United States has articulated.

And so, to the extent this Court gives deference to the Executive’s position… and in matters of foreign affairs, this Court has historically given great deference to that position… that position states that that should have no effect upon this proceeding.

John Paul Stevens:

But, Mr. Cruz, let me just make a suggestion.

Assume you lose… I’m not suggesting you will, but assume you do… the net result of the proceeding, in your adversary’s favor, would be that they would get a hearing in the state court, which is what… the President’s order says,

“Let them have that right away. “

So the whole purpose of having a lot of federal litigation to decide what you can address right away by honoring the President’s request, at least litigating it in the state court right away, we may be engaged in a lot of useless activity.

R. Ted Cruz:

Respectfully, if we were to lose, and if Medellin were to prevail, his position could potentially open the door to the reconsideration of the over 100 foreign nationals that are on death row across this country, and, beyond that, to thousands–

John Paul Stevens:

Well, so could the President’s order, the same thing.

R. Ted Cruz:

–But the President’s order is, by its term, confined to the 51 Mexican nationals.

Medellin’s theory is not.

Medellin’s theory is not even confined to those on death row; but, rather, would potentially extend to the thousands of foreign nationals–

Ruth Bader Ginsburg:

But that can’t be, in light of the United States’ most recent action.

I mean, we have a judgement.

The judgement concerns how many people?

Fifty-one?

Forty-nine?

R. Ted Cruz:

–Fifty-one.

Ruth Bader Ginsburg:

Okay.

There is no judgement concerning anybody else.

R. Ted Cruz:

That’s true with respect to the Executive determination.

But the ICJ’s decision went beyond its authorizing statute and explicitly… even though its authorizing statute says the ICJ has jurisdiction only to speak to the matter directly before it, in paragraph 151 the ICJ said it wasn’t speaking just to the matter before it.

Ruth Bader Ginsburg:

But this… but if there’s a claim here based on the Avena judgement, it is that the United States agreed to the ICJ’s jurisdiction in Vienna Convention cases.

Ruth Bader Ginsburg:

And so, pursuant to that agreement, there was an adjudication.

The United States is no longer agreeing, so there will never be another adjudication.

This adjudication concerns 51 people or… and there are no others.

R. Ted Cruz:

But Medellin’s theory that Avena should be applied as a binding rule of judgement, even without subsequent proceedings before the ICJ, could be taken to support granting habeas relief in other proceedings for individuals whose cases weren’t litigated, particularly given that the ICJ in Avena purports–

Ruth Bader Ginsburg:

Well, you have to… you have to recognize that there is a distinction between this case, which is, in large part, based on a judgement of the ICJ, and other cases that would not have the benefit of that judgement.

R. Ted Cruz:

–Surely.

Although the terms of the ICJ decision purport to apply more broadly than to these 51, and they explicitly say that this cannot be taken to imply that this does not apply to other foreign nationals, notwithstanding its jurisdictional statute that prevents it from doing that.

Ruth Bader Ginsburg:

Why isn’t this… the United States did consent to the jurisdiction of the ICJ in these Vienna Convention cases, and that tribunal issued a judgement.

Why doesn’t it get the same recognition and enforcement of any judgement of any court with jurisdiction?

R. Ted Cruz:

Under the terms of the applicable treaties, the ICJ has jurisdiction to determine, as a matter of international law, if there is a treaty breach.

But those treaties also specify the remedy for any judgement of the ICJ, and that remedy, under Article 94 of the U.N. charter, is recourse to the Security Council.

That was explicitly adopted as a political remedy, because it is the prerogative of the President and the political branches to determine how to respond.

One of the responses open to the political branch, as the United States has articulated, is to decline to respond.

And with respect to the Nicaragua case, that’s exactly what the United States did.

In that situation… and that matter was ultimately litigated; Judge Mikva, for the D.C. Circuit, wrote a compelling opinion laying out that decisions of the ICJ are not judicially enforceable in U.S. courts; they are, rather, matters sovereign-to-sovereign.

That same reasoning applies here.

It is a matter for the Executive to determine how to apply.

I would note that Medellin also presents an argument… two arguments as to why he’s presented constitutional claims.

One, a due-process claim.

Due process was not in the questions presented, as he authored.

It was not in the brief that he wrote to the Fifth Circuit asking for a COA.

The words “due process” do not appear in his merits briefs.

And, indeed, under the sections… the constitutional sections cited, he does not include the Due Process Clause.

David H. Souter:

Well, what difference does that make, since this… the issue to which it is addressed has not been raised either?

I mean, it’s a new issue, and I presume, to the extent that it may be considered at all, his response… he can make a response to it.

R. Ted Cruz:

He might conceivably have brought a due-process claim.

And if he had brought a due-process claim, the Court of Appeals could have considered if that due-process claim met the substantive standards of the AEDPA.

He didn’t bring a due-process claim.

He brought a treaty claim.

And that’s the question upon which he sought certiorari review by this Court.

David H. Souter:

Well, I can understand the argument, that he shouldn’t be allowed to raise due process here if the argument also goes to your… the permissibility of your raising 2253.

R. Ted Cruz:

But 225–

David H. Souter:

What’s sauce for the goose–

R. Ted Cruz:

–but 2253 is a jurisdictional bar to this Court.

David H. Souter:

–Okay.

Then I don’t see why it isn’t also a jurisdictional gate for him to make a response to it.

R. Ted Cruz:

Because he didn’t bring that case.

Sure, there are dozens of constitutional claims he could have brought that would have satisfied 2253.

He didn’t bring those claims.

So that’s not presented by that proceeding.

He’s not entitled, in his reply brief, to say,

“Well, you know, we could have brought this constitutional claim. “

given that he did not, in fact, bring that… this constitutional claim.

If Medellin’s theory is adopted, it would embrace a standard beyond Fay versus Noia.

Thank you.

William H. Rehnquist:

Thank you, Mr. Cruz.

Mr. Dreeben, we’ll hear from you.

Michael R. Dreeben:

Mr. Chief Justice, and may it please the Court:

For the reasons articulated in the brief for the United States and by the State of Texas, this Court should conclude that there was no jurisdiction in the lower court to issue of Certificate of Appealability; and, therefore, the Court should not reach the many questions that Petitioner has raised in this case about the effect of the Avena judgement.

Anthony M. Kennedy:

Have there been any cases in the Circuits holding that the state can waive the jurisdictional limitation on COA?

Michael R. Dreeben:

There have been cases in the Circuits, Justice Kennedy, that have held that once a COA has issued, the Court of Appeals may consider a claim that would otherwise be beyond the jurisdiction of the courts.

But this is a case where a COA has not been issued, and there is a plain procedural obstacle to its issuance that this Court can determine and, therefore, obviate the need to consider the very sensitive and delicate questions that Petitioner has raised.

Sandra Day O’Connor:

But is their whole question of the COA waivable?

Michael R. Dreeben:

I don’t think so, Justice O’Connor, because a COA is a jurisdictional requirement.

And just as a notice of appeal is a jurisdictional requirement and the prerequisites for proper notice of appeal have to be satisfied, the prerequisites for a proper Certificate of Appealability should be satisfied before this Court goes on to reach the merits of a question, which, as Justice Stevens has pointed out, may never need to be reached at all if the Texas courts recognize the President’s determination with respect to the Avena decision or apply the Avena decision itself.

And I think it’s very noteworthy that the filing that Petitioner made at the end of last week in the Texas Court of Criminal Appeals seeking a successive petition for a writ of habeas corpus under Texas law specifically, at page 25, says that Petitioner is relying on the Avena judgement and he’s relying on the President’s determination, which are two new sources of law that were not available at the time the Texas courts previously addressed the matter and that now are available, which constitutes a ground for a second petition under Texas law, and that, accordingly, the Texas courts should allow this claim to be developed in the state courts and to be litigated there.

To me, those statements are almost an admission that the claims that Petitioner has brought here are barred by failure to exhaust available state remedies.

Ruth Bader Ginsburg:

Mr. Dreeben, could this question of the effect of the Avena Treaty be brought before the Court?

Mr. Donovan raised, I think, the All Writs Act, and he also raised original writs in this court.

If the COA doesn’t work, then treat this… I think that’s what he’s saying… treat it as though it were an application under the All Writs Act or an original writ.

Michael R. Dreeben:

I do think that the Court would have the option of availing itself of extraordinary jurisdiction, but, as the Court made clear in the Felker case, its exercise of extraordinary original writs would be informed by the limitations that the AEDPA imposes upon the grant of habeas corpus relief; and, therefore, the Court should look to at least the additional jurisdictional obstacle that the United States and Texas has raised; and, namely, that is that the decision that the Texas courts raised… issued in this case is not contrary to any Supreme Court decision or a misapplication of any clearly established federal law.

Stephen G. Breyer:

So all those are… there are a lot of reasons.

Does that counsel in favor of our holding this?

Here we have a case that went on a jurisdictional ground.

And if we affirm or reverse that jurisdictional ground from the Court of Appeals, we’ll decide a lot of issues that will create guidance.

We might not have to decide it, because Texas may deal with it; or we may decide, if they come out the other way, they’re wrong.

But we might.

And that’s why I was thinking perhaps we should hold it rather than dig it, particularly because that other issue does have some authority the other way.

I take it there’s a treatise in the Fifth Circuit case which does say that the word “constitutional” here encompasses “treaty”.

Michael R. Dreeben:

Justice Breyer, I do not think that the Court should hold the case, pending the outcome of the Texas proceedings.

Stephen G. Breyer:

Because?

Michael R. Dreeben:

The Texas proceedings can consider the Avena claim and the claim in reliance–

Stephen G. Breyer:

Yeah, but suppose you lose… see, I’m thinking, suppose you lose in the Texas proceeding, it comes here, and, for whatever reason, suppose you lost again… you might not, but you might… in which case, then what do we do?

Michael R. Dreeben:

–Well, the Supreme Court would have the option of granting cert to review whatever the Texas courts–

Stephen G. Breyer:

No, no, but suppose we thought they were right?

See, suppose you lost across the board?

That would be the argument for holding it… holding it because then you’d have another vehicle to get to these questions.

Michael R. Dreeben:

–I think it would be close to issuing an advisory opinion for the Court to decide an important issue of federal law in which there is a clear jurisdictional bar to the issuance of a Certificate of Appealability, and I don’t think that a treatise creates enough of a doubt that AEDPA, means “constitutional” for this Court to embark on a wide-ranging exploration of potentially very significant issues with constitutional overtones.

The Avena decision is not a freestanding source of law that can be administered by this Court wholly apart from the President’s determination.

What the President did was to determine not that the treaty has a particular meaning that favors Petitioner’s case, but that, as a matter of compliance with the obligation of the United States, under international law, to comply with a judgement of the International Court of Justice… or to determine not to… but that, in the interest of the rule of law and the obligations that were taken on, the President would create a new source of law, in effect, that would enable the enforcement of that particular judgement, without respect to the validity of the underlying merits determination that the ICJ made.

But if this Court were to treat the ICJ judgement as a freestanding source of law, it would frustrate the Executive’s ability to determine, in a particular case, this determination by an international tribunal should not be enforced and it should not be given effect; rather, that the President might, in a particular case, choose to… not to comply with that determination.

And it would rob the President of that freedom in international affairs were this Court to treat a determination by the International Court of Justice as a freestanding–

Sandra Day O’Connor:

Well, is, though, a treaty that’s been duly ratified and signed enforceable as part of our federal law, as this one is drafted?

Michael R. Dreeben:

–It is, Justice O’Connor, but it should… properly construed as not conferring privately-enforceable rights on a criminal defendant in a criminal case.

It has not one word about private enforceability in a criminal case in its language.

The backdrop of the Vienna Convention was that no country had ever provided notice of rights to a criminal defendant that would then form a basis, in the event of a violation, of an attack on a criminal conviction.

State practice since the Vienna Convention has not recognized, here or abroad, a privately-enforceable right–

Antonin Scalia:

Mr. Dreeben, how many… how many states are we talking about for these 51 individuals involved in the case?

How many different states?

Michael R. Dreeben:

–I’m not sure of the exact number, Justice Scalia.

Michael R. Dreeben:

I think it’s five or six states that have defendants that are at issue in those proceedings.

And what the President determined was, with respect to those 51 individuals, observance of the ICJ judgement was warranted, as a matter of United States foreign policy, not because the United States agrees with the ICJ’s rulings.

Antonin Scalia:

It’s conceivable that those five or six states could say,

“The President has no authority to do this. “

ground one.

Ground two,

“Even if he did, on the merits, we reexamine. “

So the whole thing could go away.

Michael R. Dreeben:

That is absolutely correct.

And I think that’s an additional reason why this Court should not rush ahead and overlook jurisdictional obstacles that may not have been apparent to it at the time that it granted certiorari, and certainly the Court did not have the benefit of the fact that the President would make a determination that state courts should provide the review and reconsideration that the ICJ had determined was appropriate.

And the Court, of course, didn’t know that Petitioner would then file a petition for successive writ in the Texas courts that could provide him the review and reconsideration that he now seeks this Court to announce in a ruling that would have extraordinarily broad and detrimental foreign-policy consequences for the United States’ freedom to respond to the decisions of international tribunals in a manner that the President sees fit in accordance with his foreign-policy judgement.

If the Court has no further questions–

William H. Rehnquist:

Thank you, Mr. Dreeben.

Mr. Donovan, you have five minutes remaining.

Donald Francis Donovan:

Thank you, Mr. Chief Justice.

The Respondent came to this Court saying that he agrees with Mr. Medellin that America could keep her… should keep her word.

Here’s the situation we have.

Everybody agrees that these treaties are binding.

Everybody agrees now that the President has determined that Mr. Medellin should get exactly what he came to this Court asking for, which is review and reconsideration from the state courts.

The… as Mr. Dreeben has pointed out, and as we advised the Court last week, in order to protect against any statute of limitations bar, we have, in fact, filed in Texas, in order to make these claims, pending the disposition here.

And Mr. Medellin is prepared to go forward in state court, making exactly these claims, which the state courts have never had an opportunity to occasion.

The question here is, How does this Court fulfill its function of ensuring that the United States complies with its international obligations that the President has now confirmed he will comply with?

And, of course, the question here is not whether this… whatever this Court does with respect to the question presented here… that is, Does the Avena judgement having binding effect under the Supremacy Clause +/?

in this case, would no in any way constrain the President’s determination at some future point, because here we have a situation where the President has said “comply”.

And so, this case does not raise questions… if it operated directly under the Supremacy Clause… does not raise a question about what would happen if, in some future case, the political branches made a different determination once an ICJ judgement came to this country.

Here, we have the President saying,

“You should do exactly what… the United States… what the ICJ said to do. “

So the question is, How does one proceed?

We have proposed a means of going forward that, in our view, is respectful to the authority of this Court, that is respectful to the Texas courts, and that’s respectful to the President; and that is, to go forward on the subsequent application in the Texas courts, giving them two issues that they’ve never had a chance to address, the Avena judgement claim and the claim under the President’s determination.

What should not happen is, that application should not be compromised by any adverse action on this Court, and the suggestion of a dismissal might have compromising effects.

Donald Francis Donovan:

At a minimum, it might be perceived as leaving in place a judgement that this Court has already said warranted review and is now, in our view, fatally undermined by the President’s determination, as it has been previously fatally undermined by the plain command of the Supremacy Clause.

In addition, we would, no doubt… we’re already hearing arguments from the opposition to the motion to stay… we would no doubt hear arguments that, on some subsequence habeas which the United States says is… would be available, that that would be a second or successor habeas, even though Mr. Medellin has never had a chance to bring the… otherwise, to bring these claims to the Court.

And, therefore, the Court might, at some point… at this point, the best thing to do, if we are going to achieve expeditious compliance with the President’s determination… is, in fact, to stay; not to deal with any of the questions that have been raised here, but to let the Texas courts deal with them in the first instance.

If it comes back to this Court in the posture of a direct… for example, request for certiorari review from a judgement of the Texas courts… there should be no adverse impact from anything this Court did at this posture, simply because Mr. Medellin came here.

And, indeed, it was Mr. Medellin’s case that presumably prompted the President to act.

That would be unfair, and it would complicated the Court’s own disposition.

What do we have Texas saying before this Court?

Effectively, Texas has come into this courtroom and said neither the President nor this Court can effect… can give effect of the Avena judgement, because Texas has opposed the Court’s authority under the direct operation of the Supremacy Clause, and now Texas has told the Court that the President can’t do this either.

And in the face of that suggestion, Mr. Medellin has every hope and expectation that the Texas courts will see their obligations under the Supremacy Clause in a form of both the Avena judgement interpreting and applying the Vienna Convention and the President’s determination, differently than the Texas authorities have so far announced.

But if it does not, this Court should have the full complement of means at its disposal in order to ensure that the United States complies with its international obligations.

Mr. Dreeben has, himself, just suggested that there may be circumstances if it were not otherwise achievable.

It’s hard to think of a more important case for the exercise of this Court’s extraordinary writs.

But none of that should be in any way compromised by a dismissal, at this point, simply because the President came in in the midst… in fact, concurrently… into Mr. Medellin’s own case before this Court and made this determination.

Instead, as we’d suggest, the appropriate thing would be… to do is to stay the case, to allow it to go forward in the Texas courts.

But if the Court does not wish to stay, we would respectfully suggest that, at this point, under direct command of the Supremacy Clause endorsed by the President’s determination, as well as the President’s determination itself, the Court should give effect to the United States’ promises.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Donovan.

The case is submitted.