The Los Angeles Times

Wednesday 26 March 2008

Saying he does not have "unilateral authority" to force states to comply with an international treaty, justices vote 6-3 to reject presidential order to reopen cases of foreign nationals.

Washington - The Supreme Court rebuffed President Bush on Tuesday for exceeding his powers under the law, ruling he does not have the "unilateral authority" to force state officials to comply with an international treaty.

The Constitution gives the president the power "to execute the laws, not make them," said Chief Justice John G. Roberts Jr. Unless Congress passes a law to enforce a treaty, the president usually cannot do it on his own, he said.

The 6-3 decision was a rare defeat for Bush in the courts, and it came in an unusual case that combined international law, foreign treaties and the fate of foreign nationals condemned to die in Texas, California and several other states.

In a surprise move three years ago, Bush intervened on the side of the Mexican government and said Texas prosecutors should reopen the cases of Jose Medellin, a Houston murderer, and several others serving death sentences. Bush cited the Vienna Convention, which obliges signing countries to notify each other when one of their citizens is arrested and charged with a serious crime. Mexico said American prosecutors failed repeatedly to give notice when Mexican natives were charged with capital crimes.

In rejecting Bush's order Tuesday, the high court, led by its conservatives, took the opportunity to make a strong statement on the limits of presidential power.

Roberts cited the "first principles" of America's Constitution. "The president's authority to act, as with the exercise of any governmental power, must stem either from an act of Congress or from the Constitution itself," Roberts said. "[G]iven the absence of congressional legislation . . . the non-self- executing treaties at issue here did not expressly or impliedly vest the president with the unilateral authority to make them self-executing.

"It should not be surprising," Roberts added, "that our Constitution does not contemplate vesting such power in the Executive alone."

The decision upholds Texas prosecutors and judges who refused to reopen the cases of the Mexican nationals on death row there. By implication, it also blocks a challenge on behalf of several dozen Mexican natives who are serving death sentences in California.

The three dissenters, led by Justice Stephen G. Breyer, took the view that treaties are part of American law once they are ratified by the Senate.

At the White House, Press Secretary Dana Perino said the decision was a defeat, but on a narrow issue. "We're disappointed with the decision, but we're going to accept it, and we're going to be reviewing it in regards to the impacts that it may have," she said.

Since 2001, Bush has claimed the power to run the war on terrorism without interference from Congress or the courts. He and his White House lawyers have said his powers as commander in chief of the armed forces allow him to act unilaterally to protect the nation's security.

Citing this authority, he ordered the military to imprison "enemy combatants" without charges or hearings, and he told the National Security Agency to intercept international phone calls from suspected terrorists without seeking judicial warrants. He also has claimed the power to order harsh interrogations of suspected terrorists without oversight from Congress or the courts.

Civil libertarians have gone to court repeatedly to challenge Bush's actions, but they have won few clear victories.

Four years ago, the high court said war did not give the president a "blank check," but the justices stopped well short of forcing major changes at the military's prison at Guantanamo Bay, Cuba. Another challenge to that prison is pending before the court.

Pepperdine law professor Douglas W. Kmiec said Tuesday's opinion in Medellin vs. Texas may be "an epitaph for an administration that has sought to deploy all sorts of means of embellishing presidential authority." Bush's order was "clearly an executive overreach," said Kmiec, a former Reagan administration lawyer, and he called Roberts' opinion "a strong reaffirmation of the role of Congress in treaty making."

But liberal advocates faulted the court for undercutting an international treaty.

"The most disturbing aspect of this case is that Chief Justice Roberts is signaling that the United States can simply ignore its obligations under international treaties," said Kathryn Kolbert, president of People for the American Way. "It's a ruling that will further erode our standing in the world."

Donald Donovan, a New York lawyer who represented Medellin, said the court should have stood behind Bush's effort to enforce U.S. legal commitments. "Having given its word, the United States should have kept its word," he said.

Mexico does not have the death penalty, and its officials said they could supply lawyers for those who were charged with capital crimes in the United States. When Mexico sued over the issue, the International Court of Justice in the Hague ruled in 2004 that the United States had violated the Vienna Convention. Its ruling named 51 Mexican nationals.

It was unclear how that ruling could be enforced. Bush, a former Texas governor, told Texas officials that they had to abide by the ruling of the International Court. He said he did so "pursuant to the authority vested in me as president by the Constitution and laws of the United States."

Texas prosecutors balked and decided to fight Bush in court. In Tuesday's opinion, Roberts concluded first that the Vienna Convention is not "binding federal law," since Congress had not passed a law to enforce it. And in such cases, the president had no authority to force state or local officials to comply with the treaty or the ruling of the International Court.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Roberts' opinion. And Justice John Paul Stevens concurred in the result, saying the treaty at issue did not have the force of law in this country.