ACRU

American Sovereignty and Republican Politics in Texas Execution

This column by ACRU Senior Legal Analyst Ken Klukowski was published July 11, 2011 on The Washington Examiner website.

President Obama joined Mexico and foreign powers condemning Texas’ execution of a convicted murder-rapist on July 7. But Obama has no one to blame but himself, in a story that will affect Texas’ Senate race and presidential politics.

In 1994, a 16-year-old American girl was raped and murdered by Humberto Leal Garcia–a Mexican–in San Antonio, Texas. When police interviewed Garcia in a non-custodial setting (meaning he was not under arrest), Garcia’s answers led to his conviction and death sentence.

Although Mexico does not deny Garcia’s guilt, it nonetheless objects that under the Vienna Convention on Consular Relations (a treaty the U.S. ratified in 1969) Garcia should have been connected with the Mexican embassy so it could provide him a lawyer to advise him not to answer questions. American courts and Texas Governor Rick Perry both rejected Mexico’s call to stop the execution.

Obama got involved, siding with Mexico and calling on the U.S. Supreme Court to stay the execution or for Governor Perry to grant clemency. Obama was joined by various foreign and U.N. authorities, and also by Texas’ former governor, President George W. Bush.

This is dj vu, hearkening back to the 2008 Supreme Court case Medellin v. Texas. Medellin involved a Mexican convicted of murdering a Texan, with a similar outcome. The case was 6 to 3, with liberal former Justice John Paul Stevens voting separately with the majority.

The Court made clear in Medellin that the Vienna Convention is not self-executing, noting that not a single nation considers that treaty binding on domestic courts without follow-up domestic legislation. Since 1824, the Court repeatedly made clear that foreign treaties are only self-executing when their text makes clear that they are creating domestic law. If not, each country must pass its own law to implement the treaty.

Obama argues that America is violating its treaty obligations, and must not carry out this execution until Congress can pass legislation implementing the Vienna Convention.

But he has no one but himself to blame. This case has been ongoing for years. And once the Supreme Court held this treaty was not self-executing, Obama had two years in office with large Democratic majorities to pass a federal law to fill the gap. He was too busy taking over healthcare, automakers, carbon emitters, and the Internet to do it. Too late now.

This case now prominently figures in the U.S. Senate Republican primary in Texas, because the watershed Medellin case was argued and won by then-Texas Solicitor General Ted Cruz, the conservative frontrunner for Texas’ U.S. Senate seat.

Cruz, a Hispanic graduate of Princeton and Harvard Law who clerked for former Chief Justice William Rehnquist, vaulted at age 37 to the status of a national conservative legal giant in Medellin. He bested not only lawyers representing the U.N. and foreign powers, but also U.S. Solicitor General Paul Clement, Bush’s extraordinary Supreme Court lawyer.

This case fuels national Republican talk of Cruz as a possible U.S. solicitor general, attorney general, or Supreme Court justice. But Cruz is more interested in elected office, and this controversy showcases Cruz, now 40, and his impressive accomplishments in a race for an open Senate seat.

It also benefits Governor Perry. Taking such a firm stand against both presidents, premised on both national sovereignty and the 10th Amendment, is a tailor-made issue for a Republican presidential primary. All presidential candidates should support his position, and doubtless will.