Solicitor General Paul Clement has 10 minutes to argue the president's side, and he tries awfully hard to put some green between himself, Medellin, and the notion that international treaties are hugely significant. He instantly takes the position that the ICJ judgment is not what decides this case. The president's issuance of an order on top of that judgment? That's where the real constitutional alchemy kicks in.
Scalia disagrees. Only Congress can pass laws demanding the enforcement of a treaty. He shudders at the notion that "the president can make domestic law by writing a memo to the attorney general." He doesn't even understand how Medellin and the other 50 Mexicans named in Avena are entitled to relief in the first place; Avena was a fight between Mexico and the United States.
Kennedy asks again what Clement would be arguing if the president had ordered Texas to defy the ICJ judgment. "Then I'd be on that side of the podium," confesses the SG.
Scalia is still bothered by this casual memo the president wrote to his attorney general. How can a mere memorandum have legal effect, he wonders: "What if the president just wrote a memo to himself?" The memo needn't be a formal legal document, replies Clement. It's enough that the president directed the courts to abide by the ICJ. It does make you wonder whether the president's Christmas lists and the doodles beside his phone also carry the force of law.
When it's his turn, Texas Solicitor General Ted Cruz is confronted by Justice David Souter, who wants to know if the case can be decided on some basis other than the president's power. Then Breyer reads the supremacy clause of the Constitution: " '[a]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State,' " he stops to observe, "I guess that was meant to include Texas ... 'shall be bound thereby.' " You have a treaty ratified by Congress, plus a judgment from international tribunal. "That is the law," he says.
Cruz argues that Congress wanted disputes over treaties and conventions to be resolved diplomatically, not in the courts. To do otherwise is to give away the courts' constitutional power.
Scalia continues to object to giving the ICJ authority to determine U.S. federal law. "I am rather jealous of that authority," he admits.
Ginsburg is incredulous in the opposite direction. The United States submitted to the ICJ's jurisdiction. If the court accepts Texas' argument, then "unlike the rest of the world, the United States can't get the advantage of reciprocal guarantees that our judgments will be respected and in turn we will respect your judgments.'' And isn't that why the United States pushed for this convention in the first place? To protect Americans accused of crimes abroad?
But only Ginsburg and Breyer seem worried today about keeping promises we've made to the world. Kennedy, like Scalia, seems to care more about hanging on to the court's promise to Marbury v. Madison. Either way, I can't count five votes today for the position that President Bush gets to scrawl a note to Al Gonzales and call it a legal directive the courts must enforce. Memo to the Congress from Texas: Try saying "no" to the president. It may just work for you, too.