If you tried to come up with the best way to enrage the nativist right in America, you might dream up something like this: a Mexican immigrant, convicted of raping and murdering two adolescent girls, has his execution stayed by President Bush out of deference to the International Court of Justice in The Hague, Netherlands.
Believe it or not, that's the storyline in the controversial case of Medellin v. Texas, which the Supreme Court will hear on Wednesday. The Administration is siding with Jose Ernesto Medellin and his lawyers, arguing that he along with 50 other Mexican nationals should have their convictions reviewed because, in what the International Court has ruled a violation of a treaty signed by the U.S., they were not offered access to Mexican consular officials after their arrest.
The raucous right is in an uproar, stunned that their onetime hero, George W. Bush, is going against them on a case that combines three of the issues closest to their heart: immigration, the death penalty and international sovereignty. But the real lesson the right wing should take from the case is that the presidential power they so jealously defend when it is used against foreign nationals looks a lot less attractive when it's applied at home.
The Administration isn't taking Medellin's side out of sympathy. After all, Bush pushed through more than 150 executions as governor of Texas, and he's generally no fan of international courts. In fact, though the Administration is going along with the court in this particular case, it has also withdrawn from the same international accord at issue in the case. It may not seem consistent, but what Bush is interested in is achieving maximum latitude in determining compliance with international treaties and gaining the right to tell states when they do or don't have to comply with a treaty.
"It's a jujitsu move of acceding to the International Court of Justice ruling, but aggressively pursuing presidential powers at the same time," says Thomas Goldstein, who heads the Supreme Court practice of the Washington law firm of Akin Gump Strauss Hauer and Feld LLP. "The idea is that you can essentially write the states a note and tell them what to do. It's a very novel assertion of presidential powers."
The prospects for the government are mixed at best. On the one hand, conservative court members might bridle at anti-federalist infringement on states' rights to execute prisoners. On the other hand, the conservatives are firm believers in expanded presidential powers. The left, similarly, is torn between supporting American compliance with international law, but not wanting to affirm executive branch control over its application.
Politically, the Administration may be acting too clever by half. Perhaps the outrage on the right will pass, and the case will slip unnoticed into the books. But the last thing Bush needs right now is to try and explain to an already disillusioned Republican base why he's opposing the death penalty for a convicted immigrant murderer on orders from a bunch of judges in The Netherlands. If he hasn't already, this might make more Americans think twice about the wisdom of ever-expanding presidential power.