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--Written by: RogerThat
On July 7, 2011, Texas executed Humberto Leal Garcia, a Mexican national* who brutally tortured and murdered a 16-year-old girl. Garcia was properly tried and convicted under the laws of Texas, and sat on death row for over 16 years while multiple lawyers tried to get his death sentence overturned.
In a very unusual move, Obama administration lawyers intervened in Leal Garcia’s case to ask the United States Supreme Court to delay the execution. They argued that Texas had violated Garcia’s rights under the Vienna Convention on Consular Relations because he was not informed of his right to seek legal assistance from the Mexican consulate. The Convention requires that the member countries give foreign nationals access to diplomatic advisers from their own countries if they are arrested in the United States.
The Obama lawyers asked the Court to grant a stay in order to allow Congress to have more time to consider legislation being put forth by Senator Patrick Leahy which would make the Convention binding law in the United States. Unsurprisingly, the motion was supported by the usual suspects: the United Nations, the Justice Department, the State Department, the Mexican Government, other foreign governments, and, somewhat strangely, advisors from Ex-President George W. Bush’s administration.
In a 5-4 opinion along the typical ideological lines, Justice Alito rebuffed the President, stating:
“We are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be… We have no authority to stay an execution in light of an “appeal of the President,” presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim.”
The dissenting Justices took the position that it would be acceptable to defer to the President and his constitutional authority over foreign relations and grant a stay. Justice Breyer’s dissent stated:
“The Court has long recognized the President’s special constitutionally based authority in matters of foreign relations. And it has ordinarily given his views significant weight in such matters. It should do so here.”
In other words, the liberal wing of the Court felt that a stay should be granted simply because the President asked for it.
The Obama Request was Illogical on its Face
These actions by the Obama administration were illogical for three reasons:
First, the purpose of the Convention’s provision was to ensure that foreign nationals receive proper due process (i.e., proper legal representation) during their prosecution. During his almost seventeen years on death row, Garcia had assistance from more than 10 different lawyers and had four different appeals reach the Supreme Court. To say that there is even an argument that he received inadequate due process is beyond the realm of believability. (A complete and very extensive judicial history of Garcia’s case is documented by Texas Attorney General Abbott here). One federal district court judge called his case “one of the most procedurally convoluted and complex habeas corpus proceedings” he has ever witnessed.
Second, the Supreme Court addressed this exact same issue three years ago in another practically identical case (which I will discuss in Part 2). In that case, the Supreme Court held that the Vienna Convention was not a self-executing treaty, and that in order for the Convention to be binding upon the states, Congress must enact legislation to implement its provisions. In other words, the Court had already addressed this exact same situation and had told Congress what it had to do to make the Convention binding law in the United States. The Supreme Court pointed out that, “It has now been ..three years since our decision… If a statute …had genuinely been a priority for the political branches, it would have been enacted by now.” It made no legal sense to ask the Supreme Court to take a different position on a situation that it had previously addressed.
Third, Garcia was obviously guilty of the charges against him. Indeed, none of the objections to his execution even challenged his guilt. His final words verified his guilt. "I have hurt a lot of people. ... I take full blame for everything. I am sorry for what I did," he said in the death chamber. "One more thing," he said as the drugs began taking effect, "Viva Mexico!, Viva Mexico!"
So, since Garcia’s guilt was not in question, and given that he had received more than adequate due process, and considering that the Congress had failed to act on implementing the Convention, what explains the administration’s actions?
I operate under a fundamental premise that absolutely everything this administration does is political. The issue was not about Garcia, and it wasn’t even about the law (except perhaps as an attempt to alter it by judicial activism). The actions of the administration are perfectly logical if looked at through the lens of politics and liberal ideology:
I propose that the following political and ideological motivations were in play:
- The administration believes that the United States should defer to rulings of the United Nations, the International Court of Justice (ICJ), and the U.N. Human Rights Council. For another example of this principle, just look at how the administration is treating Arizona and its immigration law.
- Texas stands for everything the administration opposes, and needs to be cut down to size. This attitude is evidenced by the administration’s efforts to impose further controls on Texas through environmental regulations. The Obama administration has serious contempt towards Texas, and will even hold the Texas economy hostage over a lizard.
- A Rick Perry presidential candidacy is a threat to Obama’s reelection chances, and the administration will jump at every chance to gin up negative talking points against Perry.
- The administration was pandering to Mexican voters. The Latino vote is critical to Obama’s election chances and political points need to be scored with Mexico after the Fast and Furious debacle.
- The administration was pandering to its hard left base that is strictly opposed to the death penalty (at least for those who have already been born).
- The executive branch would be much more powerful if it could leverage its authority over foreign relations and the treaty authority to override the restrictions imposed by the Constitution, and it would erode federalism by gaining more power over the states.
Aside from being a case study in politics, this situation is perfect for illustrating several constitutional issues about which conservatives should be very concerned:
- Why would an international convention override a state’s authority to administer its criminal justice system?
- Is the United States subject to decisions of the International Court of Justice?
- To what degree should the Supreme Court defer to the President’s constitutional powers to govern foreign affairs?
- What must the United States do to make an International Convention binding United States law?
- If the Convention had been a treaty, would it have made a difference on all of the above questions?
- How might the power of the president to nominate Supreme Court justices impact future Court decisions and change existing constitutional law?
I will explore these issues in later articles.
*Garcia had been residing in the United States since he was two years old.
Next: TexMexecution, Part 2 – the Prior Case of Medellin v. Texas
About the Author:
Roger S. Burke is employed as attorney at an international company. Constitutional law is his passion, but so far, an uncompensated activity.
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