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August 5, 2008

Continuing Medellin Coverage

As reported here by SCOTUSblog earlier today, on Monday evening Medellin’s attorneys filed a reply brief in the Supreme Court again urging the Court to put his execution on hold in order to allow Congress to enact legislation implementing the United States’ obligations under the Vienna Convention. As of this posting, the execution is set to occur this evening at 7 p.m.

UPDATE: According to the Associated Press, Medellin’s execution had not taken place as of 8 p.m. Tuesday evening.

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August 5, 2008 at 06:18 PM | Permalink


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Texas should not affording the Supreme Court any courtesies here. Since no stay has been issued by the Supreme Court, Texas should simply carry out the execution. The Ertmans and the Penas are far more important than the irresponsible Supreme Court.

Medellin's date was set months ago. Medellin's attorneys only got around to filing the recall of mandate on August 1. A scant four days before the execution. A petition for rehearing does not appear to have been filed. All of this could have been filed earlier, and it wasn't, and the Ertmans and the Penas have to sit and wait while the Court takes its precious time evaluating the last minute appeals of this animal. This case should be over. And the Court should not indulge murderers in such a manner.

Posted by: federalist | Aug 5, 2008 10:31:43 PM

Shades of Bush v. Gore. They didn't even have the courage to put their names to it. Another black mark on the Court.

Posted by: DK | Aug 5, 2008 10:37:40 PM

Stevens' view that since Medellin has been awaiting execution for 14 years Texas can wait a little while longer is rich.

One wonders, too, even if the Congressional bill had passed, whether separation of powers issues would have precluded reopening the judgment in Medellin.

Posted by: federalist | Aug 5, 2008 10:46:42 PM


The judgment in Medellin would not have needed to be reopened. The proposed legislation would provide a separate cause of action as a means of executing the treaty. The Supreme Court acted disgracefully tonight and now holds just as much responsibility as Texas for our nation's failure to adhere to its acknowledged legal obligations. If there were ever any question, we have now (quite loudly) renounced being a nation of laws.

Posted by: DK | Aug 5, 2008 10:56:01 PM

The Supreme Court denied Medellin's request for a stay: http://www.chron.com/disp/story.mpl/front/5924476.html

I hope you people are happy now.

Posted by: realist | Aug 5, 2008 11:01:13 PM

DK, do you really think that it's that simple? See Plaut v. Spendthrift Farms. Not saying that the Court wouldn't have gotten around the separation of powers issue, but it's by no means a slam dunk.

By the way, DK, the ICJ decision was laughable.

Posted by: federalist | Aug 5, 2008 11:06:40 PM


There are no separation of powers issues. Treaties are federal law. If they are "self-executing," they are federal law by their own force. If they are "non-self-executing," they require Congressional implementation. (If you care, this dichotomy was invented as a means of thwarting the original intent of the founders to make all treaties supreme federal law by the act of their ratification.) Because the Supreme Court did not like the particular treaty at issue in Medellin, it ruled it to be non-self-executing. But any congressional legislation implementing it would, under any interpretation, be supreme federal law. What branch's authority do you presume it would violate for Congress to do what the Supreme Court said it must do to give effect to a valid treaty?

And coming from somebody who thinks the entire concept of the United Nations is a bad idea, I won't take seriously your opinion of the ICJ judgment.

Posted by: DK | Aug 5, 2008 11:15:05 PM

The Constitution, DK, is supreme over treaties. If separation of powers principles mean that the judgment cannot be negated by subsequent legislative act, then that the act was passed to implement a treaty would seem to be of no moment.

Posted by: federalist | Aug 5, 2008 11:23:46 PM


The judgement said that given that Congress did not intervene, the President couldn't order Texas to give him the review required under international law.

If Congress did intervene and implement the treaty, the major assumption the Supreme Court stated no longer applies. Implementing the treaty would not negate that judgement at all.

Posted by: Kenny | Aug 5, 2008 11:31:28 PM

Not sure you're right about that, Kenny. Judgments are supposed to have real world bite--allowing a subsequent legislative enactment to render a judgment (i.e., in this case that Texas could execute Medellin) toothless does raise separation of powers concerns. Now perhaps the Supreme Court would have gotten around those concerns, but there is an issue here.

Posted by: federalist | Aug 5, 2008 11:40:02 PM


The Supreme Court never ruled that Texas could execute Medellin (even tonight). That appears to be the source of your confusion. They ruled that Medellin could not seek judicial enforcement of the ICJ Avena judgment absent Congressional implementing legislation.

Posted by: DK | Aug 5, 2008 11:47:03 PM

DK, believe me, this is not a simple issue, and I am not confused.

Posted by: federalist | Aug 6, 2008 12:00:11 AM

Medellin has been executed: http://www.theaustralian.news.com.au/story/0,25197,24137041-2703,00.html

And, Federalist, I think that your statement that the Constitution is supreme over treaties is subject to debate. Under the Supremacy Clause, Treaties are "the supreme Law of the Land" along with the Constitution. Now, non-self-executing treaties seem pretty meaningless to me, but (without any real knowledge in this area of law) I would think there is at least room for argument about which is supremely supreme. Perhaps more confusing, if the Constitution gives Treaties a Supreme or co-equal position, is it Supreme because it has the power to grant that authority? Or does the Constitution merely acknowledge an assumed co-equal status which would exist without the Constitution's grant of power?

Posted by: D | Aug 6, 2008 12:17:51 AM

Treaties do not enjoy the same status as the Constitution. The Supremacy Clause was meant to establish the supremacy of federal law over state law. Treaties can enjoy the same status as federal law and neither has the same status as the Constitution. The Supreme Court made that clear in Reid v. Covert (1957).

If Congress attempts to force states to abide by the Vienna Convention, I think a 10th Amendment argument can be made to invalidate it.

Posted by: realist | Aug 6, 2008 12:46:16 AM

Federalist, you are confused. Are you operating under the assumption that Medellin's execution was somehow required by the U.S. Constitution? This really is fairly straightforward. If an "executed" treaty requires X, then X is domestic federal law to which any conflicting state law must yield. (Note that, regardless of whether a treaty is executed or not, X is still an international legal obligation of the U.S.) The U.S. Constitution will trump X, but no provision of the U.S. Constitution requires the government to kill its citizens (yet). The Supreme Court in Medellin merely held that the treaty he invoked had not yet been executed. That the U.S. was nevertheless obligated to do X was never disputed by any Supreme Court Justice.

Realist, the 10th Amendment does not allow states to ignore federal law. It merely leaves the states with the power to do what the federal government was not given the power to do.

Posted by: DK | Aug 6, 2008 1:12:33 AM

The Supremacy Clause does not override the 10th Amendment. If anything, since the 10th Amendment was meant to amend the Constitution as originally written, one might argue that it is the 10th Amendment that should enjoy precedence. At the very least, one can argue that neither should be allowed to trespass against the other.

Since no one can find any evidence that the Framers of the Constitution intended to allow the Supremacy Clause to aid the federal government's treaty-making power to alter state judicial processes, (The Court also used an originalist approach in Reid v. Covert.) it's easy to argue that the federal government would exceed its Constitutionally-enumerated powers and would be in violation of the 10th Amendment.

Posted by: realist | Aug 6, 2008 1:23:53 AM


I don't know of any precedent for the idea that the 10th Amendment not only acts as an independent bar to Constitutional powers otherwise delegate to the Federal government, but furthermore supersedes other parts of the Constitution. The Supremacy Clause itself would seem to be the best choice for having Supremacy, as the Clause's purpose was to create a hierarchy with Fed. above States, and Fed. headed by Constitution and Treaties. Furthermore, the Clause states that "Judges in every State shall be bound [by the Federal laws}, any Thing in the Constitution...to the Contrary notwithstanding." Seems to preclude other parts of the Constitution from taking precedence. I would think that were the 10th Amendment meant to amend the Supremacy Clause it would say so...

Posted by: D | Aug 6, 2008 2:32:06 AM

DK, here's a link to Plaut: http://www.law.cornell.edu/supct/html/93-1121.ZO.html

Now here you have judgment A, which allows Texas to execute Medellin without doing any further inquiry, then, if Congress passes a law purporting to give Medellin a remedy, judgment A would no longer be operative.

Please explain how this does fall pretty squarely under Plaut?

Posted by: federalist | Aug 6, 2008 4:21:51 AM

Crap coverage by SL&P on this one.

Posted by: | Aug 6, 2008 7:49:12 AM


Except that the Supreme Court disagrees with the idea that somehow treaties can enjoy the same status as the Constitution:

"There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [354 U.S. 1, 17] War, would remain in effect. 31 It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. 32 In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. 33 For example, in Geofroy v. Riggs...."

- Reid v. Covert (1957)

Since it is the treaties that must comply with the Constitution, not the other way around, the hierarchy is clear.

Once we recognize that treaties are inferior to the Constitution, the 10th Amendment argument can come to the fore. The point of the 10th Amendment is to emphasize the federalist structure of the nation. The same originalist approach in Reid v. Covert should compel the conclusion that treaties cannot alter state judicial procedures.

Posted by: realist | Aug 6, 2008 8:52:59 AM

I hope you people are happy now.

One less predator in the world! I am betting the parents of the two girls are also happy.

Posted by: BS | Aug 6, 2008 8:59:09 AM


Judgment A does not "allow[] Texas to execute Medellin without doing any further inquiry." Habeas petitions are collateral lawsuits that are resolved only on the grounds invoked by the petitioner. They do not affirmatively grant power to a party or otherwise "authorize" executions. Executions are "allowed" only by the state court judgments authorizing them.

Here, Judgment A stems from a habeas suit brought in state court by Medellin to enforce the terms of a treaty. In response to that, Judgment A says "the invoked treaty, although binding on the U.S., is not executed and thus cannot be judicially enforced. Congress must act to execute it at which point it can be judicially enforced." If Congress had then moved to execute the treaty, the treaty would have become domestically enforceable under Medellin itself, and Medellin could have pursued whatever remedy Congress had provided to enforce the treaty terms. There is no separation of powers problem.


Your 10th Amendment argument is a non-starter. The "federalist structure of the nation" expressly delegates to the federal government the power to make treaties to regulate our nation's interactions with other nations. For that reason, the 10th Amendment is not implicated here any more than it is when Congress regulates commerce under the commerce clause. And treaties most certainly can alter state judicial proceedings.

Posted by: DK | Aug 6, 2008 10:08:50 AM


I urge you to go back and read the excerpt of the Court's opinion in Reid v. Covert. Treaties are not equal to the Constitution. Since the 10th Amendment is superior to treaties, a 10th Amendment argument is plausible. It's easy to find treaties during the time of the Framers that regulated international commerce and questions of peace and war. That point is not being challenged here. The issue here is whether treaties that alter state judicial proceedings violate the 10th Amendment. There is no such precedent during the time of the Framers.

Posted by: realist | Aug 6, 2008 10:40:05 AM

“And treaties most certainly can alter state judicial proceedings.”

I am not sure on that. Treaties can provide a rule of decision, but I am not sure whether a treaty can actually mandate a judicial proceeding. Perhaps you can point to some authority on that.

Posted by: S.cotus | Aug 6, 2008 12:05:44 PM

I'll bet the house that if a treaty required the United States to impose the death penalty on a person convicted of multiple murder of persons under 18 (e.g., Mr. Medellin), no one commenting here would say that a state is required to execute a person meeting that description. Indeed, it would be discovered in no time flat that the Supreme Court's decision eliminating the mandatory death penalty for any given crime supersedes everything else, including said treaty, or the tablets handed down by Moses for that matter.

Posted by: Bill Otis | Aug 6, 2008 12:13:49 PM


Nice job finding Plaut. Almost no one knows about that case, and I wouldn't have either except that it came up in the context of on-going supervision of federal prison conditions under consent decrees entered 20 or 25 years before. Congress tried to put a brake on such things in the PLRA in the 1990's, and Plaut turned out to be a complication. I never thought I would run into anyone who had heard of the case.

As I say, nice job.

Posted by: Bill Otis | Aug 6, 2008 12:21:22 PM


The hypothetical treaty in your post would impose a rule (mandatory execution) that would violate the eighth amendment (see Woodson v. NC). Everyone here agrees that treaties cannot supersede the US Constitution.

A treaty placing limits on a State's "right" to execute people encounters no such problems. I find the 10th amendment argument to be of little merit. Treaties are part of the exective's power to run foreign policy. This is clearly a power delegated the federal government, rather than the states or the people.

Posted by: rn | Aug 6, 2008 12:32:02 PM


I believe at least one of our commenters is of the view that the Constitution and treaties are on an equal footing, and that each is the "supreme" law of the land.

So I'm perfectly content to rest on the example I used. But I'll give you two others anyway:

Suppose a treaty said that, because the paramount purpose of a trial (criminal or civil) is to gather as many facts as possible, restrictions on hearsay evidence are hereby abolished.

Or this: the non-constitutional remedy of excluding evidence obtained illegally is abolished in favor of the remedy of fining the culpable police officer $5000.

Would a treaty like that trump the exclusionary rules in the states?

Remember, exclusion of evidence is NOT mandated by the Constitution. The Constitution is silent on remedial measures, and the rigidity of the American exclusionary rule is unique.

And one more point. If the country found out that domestic law, like the rules restricting hearsay, or other of the rules of evidence, were being thrown over the side of the boat in favor of rules dictated by treaties with foreign governments, treaty-making would come to a rapid end. Thus, for whatever the law of it may be, the real-world consequence of going along with displacing domestic law with rules largely dictated abroad will be a severe curtailment of international cooperation -- in other words, exactly the opposite of what most liberals seek.

Posted by: Bill Otis | Aug 6, 2008 1:05:47 PM


I do not think the Constitution and Treaties are on equal footing. I understand that SCOTUS has decided that they're not, and I understand their basis for that reasoning. However, I think there is a plausible argument that they should be on equal footing under the Constitution. I admit I know nothing of the circumstances and history of the drafting of this provision. I've just always found the language in the Treaty portion of the Supremacy Clause to seem at odds with SCOTUS jurisprudence on the issue.

If a treaty were required an execution or some other result that I wouldn't appreciate, I would urge our government to pull out of the treaty legally, rather than just ignore it. If treaties have no binding power whatsoever, what's their point? To express an international sentiment? That can be done without creating what is meant to be a law.

Posted by: D | Aug 6, 2008 1:29:03 PM

To add to Bill's examples, suppose if there is a treaty that requires all parties to establish (though not require) capital punishment, I wonder how many people here will start screaming.

Obviously, the 10th Amendment has not been tested here, though from what I've heard, the state of Texas did consider using that argument. They decided against it (rightly, in my opinion) for a tactical reason, namely that they don't believe such an argument can prevail now. Perhaps in the future when the Court has greater fidelity to the Constitution, this issue can be settled.

To return to the topic at hand, I have a question: For Medellin's stay request, we see 4 justices each penning a separate dissent from a stay order. When was the last time that happened?

Posted by: realist | Aug 6, 2008 1:41:43 PM

Thanks Bill. I don't get a ton of compliments around here. I guess that means that I am proof of the saying that even a blind pig gets the acorn every once in a while.

Posted by: federalist | Aug 6, 2008 2:10:52 PM


I suppose my point is somewhat similar to yours. The Constitution seems to me to place Treaties on equal footing with the Constitution. However, the Court has ruled that Treaties are inferior. Likewise, you think the 10th Amendment should trump other Constitutional provisions as an independent bar to federal action. But the Court has ruled otherwise. You say SCOTUS is wrong about the 10th, and that when they have greater fidelity to the Constitution, they will agree with you. However, you stick to their prior jurisprudence to show that Treaties are inferior to the Constitution. Perhaps that same greater fidelity would place Treaties on equal footing with the Constitution. Perhaps not. I'm just pretty sick of the same problem Bill pointed out. While many liberals may want greater adherence to international law, except when they don't like the outcome, many conservatives want greater fidelity to (their interpretation of) the Constitution, except when they don't like the outcome.

Posted by: D | Aug 6, 2008 3:17:59 PM

Bill, What are you talking about? Plaut v. Spendthrift Farm is a Supreme Court case. Therefore, every ethical lawyer had read it, and it is cited a few hundred times a year last time I checked. I don’t think it really answers the question, however, but that is another story.

There is some debate about what Plaut means, however. The First is a garden-variety separation of powers theory. The second is a more muted analysis of judgments. In this regard, one could argue that Plaut’s language regarding retroactive effect judgments which reads “Finality of a legal judgment is determined by statute, just as entitlement to a government benefit is a statutory creation; but that no more deprives the former of its constitutional significance for separation of powers analysis than it deprives the latter of its significance for due process purposes.” would allow someone to shoehorn (via the supremacy clause) an argument that the judgment can’t be final whenever a foreign court judgment might interfere with it.

I have argued both theories. Strangely, both have gotten traction, but neither has been particualy-earth-shattering.

In fact, there are few remedies specifically demanded by the constitution. The two that I know fo are: 1) habeas; and 2) just compensation for takings. Whether habeas is a right is subject to some debate. However, assuming that habeas IS a right, then if one agrees that poor people can’t be imprisoned with illegally-obtained evidence, then they have some kind of remedy.

I don’t quite know how I come out on this issue. I am with you insofar as I don’t think a treaty (or the president) can direct a state court to do anything, at least one direct review. On

RN, The 10th (unlike the 9th) does not speak of the “right” of states, but rather to their “POWERS.” I think we sort of agree on this, but I don’t think that speaking in terms of the rights of government entities is ever productive, because they ain’t got none.

D, Let’s be honest here. I don’t think there are really any “liberals” out there that argue that international law should deprive Americans of constitutional protections (such as jury trials, confrontation, etc.). This is because they (like most Americans) view the bill of rights as a set of protections against the government. I have never actually met a “liberal” that thinks that Americans should be sent to the World Court of wherever without a jury, but I trust they exist. Instead, the argument (which you ignore) is that international law provides a rule of decision fort courts to impose when RESTRICTING the actions of the government.

Alas, I really don’t know how to resolve this case. But, they killed the guy, so it is moot.

Posted by: S.cotus | Aug 6, 2008 4:35:29 PM

I think most people who thought about the Terry Schiavo legislation seriously thought that the best argument against its constitutionality would be one based on Plaut.

It's an important case, though I agree that it's not at most people's fingertips.

Posted by: | Aug 6, 2008 4:37:53 PM

Okay, maybe I am missing something. When I was in law school they told us that legal research would really only be a marginal part of your work. You were supposed to know the law. This is why everyone I know has read every Supreme Court case.

If you are a litigator (criminal or civil) you WILL be familiar with Plaut simply because it deals with retroactivity and finality issues.

Posted by: S.cotus | Aug 6, 2008 4:46:45 PM

I don't think Plaut would have had anything to do with Schiavo--as the judgments there were state court judgments.

S.cotus, your argument is creative, but I think would not work, as the foreign court's judgment (which would effectively undo the original judgment) would only have effect as a result of statute. Besides, the judgment Texas won was not conditional.

The other interesting Plaut issue is that Medellin's case was originally litigated in state court--does the fact that it went to the Supreme Court bring it under Plaut? Additionally, federal law claims often can be brought into state courts--could Congress rip open final state court judgments based on federal law?

Posted by: federalist | Aug 6, 2008 4:57:57 PM

Under one view of Plaut it does. Under another view it doesn’t. Who is to really say what is right.

Judgements generally are not conditional. However, they are subject to the jurisdiction’s statutes. So, as Plaut acknowledges, they can be vacated. Indeed, it is within every court’s inherent power to vacate a judgment if it turns out that, due process was denied and a party isn’t properly served. It doesn’t matter how final a judgment looks, they can be set aside.

If you take the view (and I am not saying that I do) that all state laws incorporate treaty obligations via the Supremacy Clause, then all judgments can be revisited on those grounds. Moreover, all states have various writs and procedures for revisiting judgments, though, of course, they are subject to waiver and forfeiture. Unfortunately, this issue was confused when the president started thinking he could tell state courts what to do.

To answer your second question, the interaction between state and federal courts on this issue is important. Plaut did conceive of the federal judicial “department” as some sort of coherent entity from District to Supreme Court. In state courts this isn’t the case. There are two free-standing court systems which only interact on special occasions. Therefore, Plaut could be distinguished.

However, habeas (which, as I said is one of the two constitutionally-guaranteed remedies) would not involve revisiting of a judgment. To be clear, a successful habeas petitioner only gets released. He does not get his conviction vacated. So, there really are no finality issues there and arguably the “judgment” view of Plaut doesn’t apply.

I think the only way that Plaut is squarely on point is if you take it to its logical next step which is federalism.

Posted by: S.cotus | Aug 6, 2008 5:12:50 PM

Plaut has nothing to say about this. Medellin reviewed a state court judgment that had applied a state procedural bar to Medellin's claim under the treaty. There is no Article III judgment that Congress would be legislating to be reopened.

There are many ways that Congress could execute the treaty. The current proposal provides a new cause of action. Nothing, certainly not Plaut, would have prevented Medellin from filing suit pursuant to that new cause of action. I don't think this is even remotely debatable.

The 10th Amendment argument is likewise not debatable:

"The plea of [state statute of] limitations can defeat the remedy only. The debt remains. But if the bar had been complete, yet it was forever removed by the treaty. This was a bona fide debt, contracted before the treaty-and the act of limitations is a legal impediment which it is endeavoured to oppose to its recovery. But the treaty says that the creditor shall meet with no legal impediment; and the constitution of the United States declares the treaty to be the supreme law of the land.-The [Virginia] act of limitations, therefore, must yield to the treaty." Hopkirk v. Bell, 7 U.S. 454 (1806).

Posted by: DK | Aug 6, 2008 9:12:23 PM

DK, I think you hear the music, but don't catch the tune. The Supreme Court ruled in Medellin that Texas could execute him without a hearing into the issue of whether Medellin was prejudiced. Now it may be that the fact that this case originated in state court distinguishes this case, but assuming that it does not (and I cannot see a logical reason to make a distinction, as it doesn't make sense to argue that some Supreme Court judgments are able to be ripped open and others are not), there is simply no escaping the fact that the new legislation, by creating a new cause of action, would render the Supreme Court's existing judgment (i.e., that Texas could execute him) meaningless. I don't think Plaut allows Congress to declaw the cat in such a manner.

Let's think about the following hypo. Let's say Congress had passed this statute, and jurisdiction was vested in the applicable federal District Court. Let's say that Medellin filed there, and Texas pleaded res judicata, and pointed to the Supreme Court case. What result? I think the answer is easy--claim preclusion, as this matter was already adjudicated. And I don't think that Congress can alter the res judicata effect of a judgment issued by a federal court after the judgment has been issued.

Posted by: federalist | Aug 6, 2008 10:58:55 PM

The music I'm hearing is the same music the circus plays when the clowns pile out of the tiny car. You wrote: "The Supreme Court ruled in Medellin that Texas could execute him without a hearing into the issue of whether Medellin was prejudiced."

No matter how many times you want to repeat it, no such thing ever occurred, Federalist. I can't keep arguing with you because your grasp of even very basic legal issues is so flimsy as to render the exercise futile. You don't understand (1) what a judgment is; (2) what an appeal is; (3) what a mandate is; (4) what separation of powers means. I can't (or at least won't) spend my time teaching you all that. Suffice it to say, there's a reason that even Texas--not unknown to make any frivolous legal argument it can dream up--did not make the arguments you are trying to advance.

Posted by: DK | Aug 7, 2008 12:00:25 AM

Texas didnt have to. The issue wasn't presented. The whole thing is a hypo.

DK, you're the one who doesn't seem to have a grasp of basic legal issues. Texas and Medellin litigated the question of whether he was to get the hearing mandated by the ICJ. The outcome to that litigation was "No". What that meant was that Texas got to execute. Courts exist to settle disputes, and this dispute was settled. The opinion is secondary to the parties. To the parties, the real world effect is what counts.

Now, I have granted that there may be things about this case which distinguish it from Plaut. But, I don't see how a pleading of res judicata (i.e., claim preclusion) isn't successful.

I'll break it down in terms even a moonbat can understand. What was the effect of the Supreme Court judgment? Ans: Texas could set a date and carry out the execution, i.e., exactly what happened. What would have been the effect of Congress passing a statute giving Medellin another shot? Ans: if we were to take your view, then you would have a judgment with the real world effect of allowing the execution altered by legislation occurring after the issuance of the judgment. Putting aside any distinctions based on how the case got to federal court, that is exactly what Plaut barred.

I don't know why that argument is frivolous. I happen to think it would carry the day.

Posted by: federalist | Aug 7, 2008 12:18:18 AM

"I hope you people are happy now."

Not happy, but content. It's about time he was executed. But no doubt his victims' families are still grieving.

Posted by: | Aug 7, 2008 7:30:53 AM

Federalist wrote: "I'll break it down in terms even a moonbat can understand. What was the effect of the Supreme Court judgment? Ans: Texas could set a date and carry out the execution, i.e., exactly what happened."

No, that was not the effect of the Supreme Court mandate. The effect of the Supreme Court mandate was that the Texas state court decision applying a state procedural bar to Medellin's claim was left undisturbed. It had no other effects. You don't get that because you don't understand what an appeal is (or what a collateral lawsuit is). And as I explained before, I can't help you with that.

(FYI, Texas was free to set a date and carry out the execution over a decade ago, as soon as Medellin's conviction and sentence became final on direct review. I know you don't understand why, but I'm not going to explain that to you either.)

Federalist wrote: "What would have been the effect of Congress passing a statute giving Medellin another shot? Ans: if we were to take your view, then you would have a judgment with the real world effect of allowing the execution altered by legislation occurring after the issuance of the judgment."

You beg the question. Congress would not have passed a statute "giving Medellin another shot." It would have executed a treaty, which is its distinct and express constitutional prerogative to do. To suggest that such an act of Congress violates separation of powers is preposterous. The real world effect of this would have been to comply with the Medellin decision (recognizing an international legal obligation) and provide Mexican nationals a cause of action by which to uphold the treaty obligation, which has nothing at all to do with whether Texas could apply a state procedural bar to Medellin's habeas corpus claim or whether the President alone can execute treaties, the issues decided in the Medellin case.

Posted by: DK | Aug 7, 2008 10:59:49 PM

DK, your fulminations show a good deal of intellectual laziness--but hey, that's typical of moonbats.

Here's a quote:

"No, that was not the effect of the Supreme Court mandate. The effect of the Supreme Court mandate was that the Texas state court decision applying a state procedural bar to Medellin's claim was left undisturbed. It had no other effects. You don't get that because you don't understand what an appeal is (or what a collateral lawsuit is). And as I explained before, I can't help you with that."

I think you get confused between the "judgment", i.e., the actual real world effect of the court order with the legal analysis supporting it. So let's get down to basics--maybe you'll get it. Texas and Medellin had a dispute--Texas wanted to execute Medellin pursuant to its criminal judgment and Medellin wanted to undo the criminal judgment. So off they went to Texas state court, and the Texas state courts sided with Texas. Then Medellin appealed to the Supreme Court and lost. That meant that Texas could execute him. In other words, since there were no other avenues of collateral attack (other than irrelevant second habeas rights), Texas had won the right to kill Medellin. N.B., your comment about Texas having the right to kill Medellin over a decade ago is silly--as Texas criminal judgment was subject to state and federal collateral proceedings.

Now, you may be right that the fact that these proceedings originated in state court means that the Supreme Court judgment is not protected by Plaut, although that seems very difficult to square with Scalia's language about the Article III courts being part of a judicial department, but whatever.

So now, Texas, with its victory in hand sets a date and wants to execute. So let's assume that Congress passed the bill in question, and the President signed into law before the date. Texas' victory, i.e., being able to enforce its criminal judgment, if we adhere to your view, would then be lost. That seems, putting aside the possible distinctions because of where the case originated, to be exactly what was done in Plaut, i.e., victors in court having their victories undone by subsequent legislation.

Your statement that Medellin would not have been getting another shot is curious. He most certainly would be getting another shot at the criminal judgment against him. And your comment about Congress' distinct and constitutional prerogative is silly--Congress has the distinct and express Constitutional prerogative to pass laws. Equally dumb is your comment that "[t]o suggest that such an act of Congress violates separation of powers is preposterous." Well, could, in implementing a treaty, Congress undo settled judgments? Plaut doesn't seem to admit of an exception in such a case. Maybe it could--who knows what the Supreme Court would do, and there may be a distinction between a self-executing treaty and legislation implementing a non-self-executing treaty. These possibilities do not make my position preposterous.

DK, there are separation of powers issues here, and maybe they would be resolved in favor of Medellin had Congress passed the law. But my position is not unreasonable at all. You, by dismissing them, make yourself look dumb.

Posted by: federalist | Aug 8, 2008 12:34:33 AM

Federalist wrote: "Texas and Medellin had a dispute--Texas wanted to execute Medellin pursuant to its criminal judgment and Medellin wanted to undo the criminal judgment. So off they went to Texas state court, and the Texas state courts sided with Texas. Then Medellin appealed to the Supreme Court and lost. That meant that Texas could execute him."

It was the criminal judgment that allowed Texas to execute Medellin, not losing the collateral lawsuit. The lawsuit could have been mooted by his execution, as many collateral suits are. What the state court judgment in Medellin meant was that the precise application he filed did not on its face meet Texas's requirements for consideration of a successive habeas petition. Period. What the Supreme Court mandate meant was that this judgment would not be disturbed. Period.

Federalist wrote: "So now, Texas, with its victory in hand sets a date and wants to execute. So let's assume that Congress passed the bill in question, and the President signed into law before the date. Texas' victory, i.e., being able to enforce its criminal judgment, if we adhere to your view, would then be lost."

No, it wouldn't. Texas's judgment that the petition Medellin had filed did not meet Texas's requirements for consideration would still be perfectly valid and in force. (Not that if it weren't this would violate separation of powers.) If we were to accept your argument, it would mean the AEDPA--an act of Congress that requires federal courts to review claims previously raised in and decided by state courts--violates separation of powers because it can have the effect of states "losing" judgments they secured in state courts.

Federalist wrote: "Your statement that Medellin would not have been getting another shot is curious. He most certainly would be getting another shot at the criminal judgment against him."

There are already state and federal statutes that allow prisoners to take more than one shot at their criminal judgments, provided they meet certain requirements on successive attempts. These would all be invalid under your overly broad interpretation of Plaut. Yet invalidating these provisions would run afoul of the constitutional right to habeas corpus. It would mean that, after a single habeas petition had been disposed (in state or federal court), the State could come forward with all the evidence it unconstitutionally suppressed showing the person to be innocent, and the person would have no legal recourse. They don't call it the great writ for nothing.

Federalist wrote: "And your comment about Congress' distinct and constitutional prerogative is silly--Congress has the distinct and express Constitutional prerogative to pass laws."

If all Congress were doing in Plaut was "passing laws," there would not have been a separation of powers problem. This is the very point. What Congress was doing in Plaut was not passing laws but adjudicating cases by directing federal district courts to reopen certain of their civil judgments. Hence the violation. That is not what would be happening here. Congress would be executing a treaty, which is its distinct prerogative to do (as the Supreme Court held in Medellin itself). It would not be changing what the law was, as interpreted by Article III courts, but changing what the law is. Nothing would then prevent Medellin from taking advantage of it. But because no judgment would be directed to be reopened here, all of this irrelevant anyway.

Posted by: DK | Aug 8, 2008 3:08:42 AM

I am not going to bother responding to most of DK's post--suffice it to say that I don't think DK has read Plaut very carefully.

The habeas issue doesn't nuke my argument--in fact Plaut deals with it, note the part about finality being conditioned and subject to the law then existing.

The dissent promises to provide "[a] few contemporary examples" of statutes retroactively requiring final judgments to be reopened, "to demonstrate that [such statutes] are ordinary products of the exercise of legislative power." Post, at 12. That promise is not kept. The relevant retroactivity, of course, consists not of the requirement that there be set aside a judgment that has been rendered prior to its being setting aside--for example, a statute passed today which says that all default judgments rendered in the future may be reopened within 90 days after their entry. In that sense, all requirements to reopen are "retroactive," and the designation is superfluous. Nothing we say today precludes a law such as that. The finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce. If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned. The present case, however, involves a judgment that Congress subjected to a reopening requirement which did not exist when the judgment was pronounced. The dissent provides not a single clear prior instance of such congressional action.

The dissent cites, first, Rule 60(b), which it describes as a "familiar remedial measure." Post, at 12. As we have just discussed, Rule 60(b) does not provide a new remedy at all, but is simply the recitation of pre-existing judicial power. The same is true of another of the dissent's examples, 28 U.S.C. § 2255 which provides federal prisoners a statutory motion to vacate a federal sentence. This procedure " `restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.' " United States v. Hayman, 342 U.S. 205, 218 (1952) (quoting the 1948 Reviser's Note to §2255). It is meaningless to speak of these statutes as applying "retroactively," since they simply codified judicial practice that pre-existed. Next, the dissent cites the provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, 50 U. S. C. App. §520(4), which authorizes courts, upon application, to reopen judgments against members of the Armed Forces entered while they were on active duty. It could not be clearer, however, that this provision was not retroactive. It says: "If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service . . . such judgment may . . . be opened . . . ." (Emphasis added).

As for the fact that the existing pronouncement of the judicial department in Plaut not being reopened by the subsequent legislative action--well, I don't think Plaut turns on the statute expressly rendering the judgments reopened. Maybe it does--you never know what Courts will do, particularly to save death row inmates, but to restrict Plaut in such a manner would seem unduly formalistic.

And I am not sure you're right about "executing a treaty". It's still legislation--and treaty implementation may go outside of the four corners of the treaty or, as in the case of the current bill, is far less than the entire treaty. In any event, Texas would have a judicial victory embodied in a decree by the judicial department rendered ineffective by what is unquestionably a statute. You can think I am wrong, or that Plaut doesn't go that far, but there is a separation of powers issue here, and you look silly for denying that.

Posted by: federalist | Aug 8, 2008 9:48:07 AM

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