Medellin Moot Tests The Bounds of Executive Authority

BY ORAMEL SKINNER

Solicitor General of Texas Ted Cruz takes questions from the Ames Courtroom crowd.

Sunday, October 7th brought not only Oktoberfest to Harvard Square, but also the Supreme Court Moot of Medellin v. Texas to the Ames Courtroom in Austin Hall. The moot, presented by the Federalist Society, the American Constitution Society, and Dean Elena Kagan, included the Honorable R. Ted Cruz ’95, Solicitor General of Texas, arguing before a panel consisting of Professors Jack Goldsmith, David Shapiro and Martha Field. The main issue before the court was a discussion of presidential uuthority, and its interaction with both international law and the state court system of Texas.

The central issue of the complex case surrounds a Mexican national convicted and sentenced to death for the gang rape and murder of two young women in Texas. What makes the case worthy of a trip before the Supreme Court is that Jose Ernesto Medellin is one of fifty-one Mexican nationals named in a decision before the International Court of Justice (ICJ) known as the Avena case. In Avena, the ICJ addressed issues of Vienna Convention violations with regard to the named nationals in their treatment before United States courts.

The ICJ concluded that the nationals, including Medellin, were entitled to receive review and reconsideration of their convictions and sentences in United States courts.

The most interesting aspect of this ICJ decision was not merely its directive, but that President Bush issued an executive memorandum to the Texas Attorney General ordering him to discharge the decision of the ICJ in accord with international standards of comity. The central focus of the moot was whether or not the memorandum is within the President’s authority, and what effect it has on the Texas state courts.

The moot began with the memorandum in the forefront as Solicitor Cruz stated that there is a right way and a wrong way to accomplish the effect the President sought. This introduction led to almost twenty minutes of questions that centered on the other available avenues for the President in attempting to address or implement the ICJ decision. The main thrust of much of the questioning could be summed up by Prof. Goldsmith’s question early on: “Could Congress have done what the President did?”

From there the discussion focused upon issues of treaty execution, but time and again the questioning came back to the issue of the appropriateness of the means the President used in directing the Texas state courts, as Prof. Field asked “could Congress have issued the order the President did here to state courts?” Solicitor Cruz again and again implied that combining Congress and the President in enacting a law to direct the state courts would have fit the precedents for Presidential authority better then the memorandum at hand in the case. His position was best summarized when he stated, “The fact that the President can choose the means [of implementation] doesn’t mean any means is allowable.”

The moot itself then gave way to a question and answer session of an informal nature between Solicitor Cruz and the panel, with student questions interspersed. Solicitor Cruz described his use of different openings in each of his three moots of the case, and noted that while these openings may only last a few sentences they shape the following period of questioning to a great degree. Solicitor Cruz also described to the audience his view that this case cut across the court’s typical right-left divide. He noted that as the case involved Presidential authority and international law, “all nine justices are in play.”

He also described his efforts to reign in certain lines of response to questions in order to try and keep on his side justices from various portions of the courts ideological spectrum and form a majority.

The moot itself, while incredibly technical, featured an intriguing case tying in issues of Presidential authority, separation of powers, and international law. It also featured one of the rising stars of the conservative legal world in Solicitor Cruz, who drew compliments from all the judges on the panel for his performance. This might explain why the Ames Courtroom was nearly full on a Sunday afternoon in October, with both Patriots and Red Sox games to compete with, even drawing law students from as far away as the Vermont School of Law.

The oral arguments for Medellin v. Texas before the Supreme Court of the United States occurred on Wednesday October 10th.

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