Bush "Orders" State Courts
DLaycock at law.utexas.edu
Wed Mar 9 09:13:02 PST 2005
The US brief says that the President's "determin[ation]" is binding under the Supremacy Clause and overrides contrary state procedural rules. But the determination says none of that. It orders nothing; there is no language of command. If it were a judgment, no one could be held in contempt.
I don't know whether to be cynical or optimistic. The cynical reading is that the President has "determined" that state courts are responsible for compliance, for the purpose of cutting off all remedies outside state courts, and that the President has no intention of doing anything if state courts ignore his determination, or if state courts conclude that the US brief is also right that the Avena decision creates no enforceable rights, or if state courts routinely find that failure to notify the consulate was harmless error.
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
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