Medellin Oral Argument -- Two Constitutional Questions
Jonathan Miller
jmiller at swlaw.edu
Tue Mar 29 10:46:08 PST 2005
I just checked with a colleague who handles habeas cases, and apparently
attorneys will sometimes seek certiorari from a State habeas denial. I
do not know if it has been litigated, but apparently attorneys in
practice have read the AEDPA as not affecting cert. authority outside of
habeas corpus. It is, however, rather odd to think that cert would be
available even though direct appeals and Federal habeas have already
been concluded. The rather odd implication of the SG's position is that
a complaint of violation of Federal law not made in the initial direct
appeal process will typically be heard by the Supreme Court though
certiori from State habeas, and never through Federal habeas. But I
have to admit that it does not deny review.
Thanks,
Jonathan
Michael Zimmer wrote:
>Your point (3) assumes that the Supreme Court's cert. authority could only
>be based on AEDPA. Is that true?
>
>Michael J. Zimmer
>Professor of Law
>Seton Hall Law School
>One Newark Center
>Newark, NJ 07102
>973.642.8833
>973.642.8194 fax
>
>
>
> "Jonathan Miller"
> <jmiller at swlaw.ed
> u> To
> Sent by: Marty Lederman
> conlawprof-bounce <marty.lederman at comcast.net>
> s at lists.ucla.edu cc
> Julian Ku
> <Julian.G.Ku at hofstra.edu>,
> 03/28/2005 06:48 CONLAWPROF at lists.ucla.edu,
> PM intlaw at virginia.edu
> Subject
> Re: Medellin Oral Argument -- Two
> Constitutional Questions
>
>
>
>
>
>
>
>
>
>
>I just went to the SG's brief and you are right -- but the footnote you
>cite then seems to confuse things again. If the position of the SG is
>that the AEPDA must always be satisfied and that a treaty claim can never
>satisfy AEPDA because AEDPA requires a constitutional violation, then the
>footnote and the text contradict each other. -- The only way out perhaps
>being an action by the Federal government to require the State courts to
>give effect to the Federal obligation.
>
>To review. (1) The SG maintains that AEPDA requires violation of a
>constitutional right and that violation of a treaty obligation does not
>constitute violation of a constitutional right because Congress used the
>term "constitutional" and not "federal". SG's Brief at 14. (2) As you
>note, the SG's brief says that "state court judgments addressing those
>individual's claims would raise federal issues that are ultimately
>reviewable in this Court". But -- (3) any appeal from these judgments
>must satisfy AEDPA, which requires a constitutional violation (and hence
>does not allow appeal of the state court judgment).
>
>And doesn't that boil down to my original post -- that the SG argues that
>the State courts are obligated to give effect to the Executive decision,
>but that any decision by a State court judge that the President's order was
>unconstitutional cannot be reviewed by the Supreme Court. -- So a private
>litigant has the right to invoke a federal right -- conferred by the
>President -- in State court, but no right to appeal to the Supreme Court if
>the President's order is not respected.
>
>Am I missing something?
>
>Thanks,
>
>Jonathan
>
>
>
>Marty Lederman wrote:
>Lyle's description is correct. I don't recall Michael Dreeben saying
>anything to the effect that "there is no possibility of U.S. Supreme
>Court intervention in the event of failure by State judges to comply" with
>the President's determination. To the contrary, the SG's brief expressly
>states that "[t]he state court judgments addressing those individuals'
>claims would raise federal issues that are ultimately reviewable in this
>Court. [Footnote: Any claims brought on federal habeas corpus, if the
>state courts denied relief, would have to satisfy the requirements of the
>AEPDA [citing Breard]."
>
> --
>----- Original Message -----
>From: "Julian Ku" <Julian.G.Ku at hofstra.edu>
>To: <marty.lederman at comcast.net>; <jmiller at swlaw.edu>
>Cc: <CONLAWPROF at lists.ucla.edu>; <intlaw at virginia.edu>
>Sent: Monday, March 28, 2005 5:46 PM
>Subject: Re: Medellin Oral Argument -- Two Constitutional Questions
>
>
>
>
>>Jonathan,
>>
>>I wasn't at the oral argument, but if Lyle Denniston's account (below)
>>is correct, the SG is not taking the position you are suggesting.
>>
>>
>>
>>
>http://www.scotusblog.com/movabletype/archives/2005/03/medellin_case_t.html
>
>
>>(Deputy SG) Dreeben said the federal government did not believe the
>>Court should now stay the pending case. The new Texas case, he said, can
>>explore whether Medellin and other Mexican nationals can use the World
>>Court ruling to their advantage. After that is decided, Drreben said,
>>"this Court will have the option of granting cert to review whatever the
>>Texas courts decide." If the Justices were to proceed to decide anything
>>other than the jurisdictional question in the pending case, "that would
>>be close to issuing an advisory opinion."
>>
>>***
>>This seems about right to me. But again, i wasn't there so if anyone
>>else would like to correct me (or Jonathan) please do.
>>
>>Julian G. Ku
>>Associate Professor of Law
>>Hofstra University School of Law
>>121 Hofstra University
>>Hempstead, NY 11549
>>
>>www.lawofnations.blogspot.com
>>516-463-4237
>>
>>
>>>>>"Jonathan Miller" <jmiller at swlaw.edu> 03/28/05 5:37 PM >>>
>>>>>
>>>>>
>>Unless I am misunderstanding the SG's position, one aspect is very
>>bizarre if not intellectually dishonest. On the one hand, the SG
>>maintains that the State courts are obligated to give effect to the
>>President's order that the ICJ decision be complied with through State
>>review of the effect of denial of consular access. On the other hand,
>>the SG maintains that there is no possibility of U.S. Supreme Court
>>intervention in the event of failure by State judges to comply --
>>presumably even if they refuse to comply because they consider the order
>>
>>unconstitutional.
>>
>>Jonathan Miller
>>Southwestern University School of Law
>>
>>Marty Lederman wrote:
>>
>>
>>
>>>[Cross-posted to CONLAWPROF and INTLAW.]
>>>
>>>
>>>
>>>The Court heard argument this morning in Medellin. My fellow blogger
>>>Lyle Denniston has posted on the case, see
>>>
>>>
>>>
>http://www.scotusblog.com/movabletype/archives/2005/03/medellin_case_t.html
>,
>
>
>>>and I think Lyle's account is fair and accurate. It's not at all
>>>obvious what the Court will do: The Justices appeared to understand
>>>that there were approximately 1001 ways in which they could resolve
>>>the case, or decide not to decide anything. Several Justices seemed
>>>reluctant to reach any of the difficult and provocative statutory and
>>>constitutional "merits" issues because the case could in effect be
>>>mooted if Medellin prevails in his new habeas petition in Texas (in
>>>which he relies upon the Avena decision and on the presidential
>>>determination). But even the Justices who expressed reluctance to
>>>reach the merits weren't certain whether the proper procedure would be
>>>
>>>
>>>to DIG the case or to grant Medellin's motion for a stay.
>>>
>>>
>>>
>>>Most interesting to me were two constitutional questions raised at the
>>>
>>>
>>>argument (although neither of them engendered a great deal of
>>>discussion). I'll describe the first in this post, and the second in
>>>a follow-up post, so that anyone who's interested can continue the two
>>>
>>>
>>>discussions separately.
>>>
>>>
>>>
>>>First, Justices Scalia, O'Connor and Kennedy all expressed serious
>>>doubts about whether it would violate article III for a treaty (or a
>>>statute) to provide that the ICJ's construction of a treaty is binding
>>>
>>>
>>>on U.S. courts. (Justice Scalia offered the analogy of a treaty
>>>providing that a foreign official shall be commander-in-chief of U.S.
>>>forces.) This is, of course, one of the arguments that Professors
>>>Stephen, Harrison, Ku, et al., urged in their amicus brief. See the
>>>citation to Marbury on page 19 of
>>>
>>>
>>>
>http://www.scotusblog.com/movabletype/archives/medellin.sixprofessors.amicus.pdf
>.
>
>
>>>
>>>
>>>I think this is a very interesting question in its own right (cf. U.S.
>>>
>>>
>>>v. Klein)--please feel free to discuss--but I wonder whether that's
>>>truly what's at stake in Medellin.
>>>
>>>
>>>
>>>There is no U.S. treaty (is there?) that provides that ICJ
>>>interpretations of the Vienna Convention shall be binding, or
>>>conclusive, on U.S. courts when those courts are required to
>>>adjudicate questions that turn on an interpretation of Vienna.
>>>Instead, as the SG explains at page 34 of his brief (see
>>>
>>>
>>>
>http://www.scotusblog.com/movabletype/archives/medellin.sixprofessors.amicus.pdf
>),
>
>
>>>Article 94 of the U.N. Charter--which is itself a treaty--imposes a
>>>distinct obligation on the United States to comply with ICJ
>>>decisions. That treaty obligation to comply with ICJ decisions
>>>applies regardless of whether the ICJ "correctly" interpreted Vienna.
>>>
>>>
>>>That is to say, the ICJ's judgments themselves become "assimilated"
>>>into federal law, and must be honored by U.S. courts in addition to
>>>any obligations that Vienna imposes.
>>>
>>>
>>>
>>>In this respect, requiring courts to give effect to ICJ judgments is
>>>no different from requiring courts to give effect to state law that is
>>>
>>>
>>>assimilated into federal law, see U.S. v. Sharpnack, 355 U.S. 286
>>>(1958); or to give effect to a tobacco-growers' referendum, see Currin
>>>
>>>
>>>v. Wallace, 306 U.S. 1 (1939); or to give effect to the judgment of
>>>milk handlers, see U.S. v. Rock Royal Co-op, Inc., 307 U.S. 533, 577
>>>(1939); or to give issue- or claim-preclusive effect to state-court
>>>judgments, see the Fair Faith and Credit Act (at issue in the San Remo
>>>
>>>
>>>case that was argued immediately prior to Medellin); or to give effect
>>>
>>>
>>>to an arbitration prescribed by statute, see Thomas v. Union Carbide,
>>>473 U.S. 568 (1985); see also section V-C of
>>>http://www.usdoj.gov/olc/arbitn.fin.htm. In all of these cases, the
>>>non-federal actors are not making conclusive interpretations of
>>>federal law; instead, Congress prescribes (or, in the case of a
>>>treaty, the President and Senate prescribe) that the substance of
>>>federal law shall be determined by reference to the decisions of other
>>>
>>>
>>>parties or bodies. There ought to be no article III problem in that.
>>>
>>>
>>>Or is there?
>>>
>>>
>>>
>>>The second question is whether the President has the constitutional,
>>>foreign-affairs authority to deliberately cause the U.S. to violate a
>>>treaty--in this case, Article 94 of the U.N. Charter. More on that in
>>>
>>>
>>>my next post.
>>>
>>>------------------------------------------------------------------------
>>>
>>>_______________________________________________
>>>To post, send message to Conlawprof at lists.ucla.edu
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>>private. Anyone can subscribe to the list and read messages that are
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>>
>>
>>--
>>Jonathan Miller
>>Professor of Law
>>Southwestern University School of Law
>>675 S. Westmoreland Ave.
>>Los Angeles, CA 90005-3992
>>Tel. 213-738-6784
>>
>>
>>
>>
>>
>>
>>
>>
>>
>
>--
>Jonathan Miller
>Professor of Law
>Southwestern University School of Law
>675 S. Westmoreland Ave.
>Los Angeles, CA 90005-3992
>Tel. 213-738-6784
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
>private. Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly or
>wrongly) forward the messages to others.
>
>
>
>
--
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784
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